Volume 51, Preface 30 View pdf image (33K) |
xxx Introduction to the Legal Procedure. miles of London, where the Chancery Office was situated, his answer would be taken under oath before one of the masters in Chancery there. If he lived farther off, his answer might be taken before other persons near him, under the authority of a special commission for the purpose, or of a dedimus potesla- tern, a writ empowering persons for the purpose. The Chancery Court in Mary- land is here seen issuing these writs of dedimus potestatem and commissions, but what distance from St. Mary's entitled a defendant to the convenience is not apparent. When an answer had been filed, a complainant might find the whole case pre- sented in a manner satisfactory to him, or, at least, leaving him nothing to add, and he could submit the controversy for hearing and decision on his bill and the answer, the allegations of the answer being accepted by him. Otherwise the complainant would file replication denying the answer, and the defendant might file a rejoinder to anything set up in a replication; and testimony of wit- nesses would be required to settle their differences. Instead of taking the testi- mony by the processes of the Chancery Court the Chancellor might refer a question of fact to the consideration and verdict of a jury in a common law court, to be returned to the Court of Chancery for its further action. By the Chancery Court's own processes, testimony was obtained by means of written interrogatories prepared by attorneys, and by persons specially commissioned by the court for taking the answers of the witnesses under oath. As in many instances here, the commissioners would file their report, or return, of the interrogatories and the respective answers, and when all the testimony to be taken had been returned, the case would then be declared by the court ready for publication, which meant that the testimony as a whole would be made public, and copies supplied if demanded. Publication implied a closing of the case on the testimony. In this a wide difference from the method of common law courts will be observed. It was not the practice in Chancery to have witnesses give their testimony orally in open court; cases were heard there on papers only. Not until 1896, in Maryland, was it permissible to examine witnesses in open court in Chancery cases. For the making up of any accounts to be settled for the purpose of the deci- sions the court made use of specially appointed auditors or masters, as Chancery Courts do to-day. When these special officers returned their accounts, the parties in interest could contest their conclusions by filing and arguing exceptions. The orders which were passed during the course of the litigation subse- quent to the complainant's reply to an answer, and before final decree, were various, and most of them will probably be sufficiently well understood without explanation. The capias referred to was an order to a sheriff to seize the body of a person named, and was an attachment of the body. The meaning of the sheriff's return to cepi, I have taken, will be obvious on a slight acquaintance with Latin. Instances of a writ ne exeat provinciam, one of frequent use, will be noticed. It was the writ of ne exeat regnum of England, and was issued in the province to prevent escape or departure from the jurisdiction, except upon security given to appear and answer, of a person against whom rights might be asserted in the courts. |
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Volume 51, Preface 30 View pdf image (33K) |
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