REPORTS
of
CASES
ARGUED AND DETERMINED
IN THE
HIGH COURT OF ERRORS AND APPEALS
OF THE
STATE OF MISSISSIPPI.
BY
VOLNEY E. HOWARD,
REPORTER TO THE STATE.
VOL. III.
CONTAINING THE CASES FOR DECEMBER, 1838,
AND JANUARY TERM, 1839
NEW ORLEANS.
E. JOHNS & CO., STATIONERS’ HALL.
1839.
page iii
ENTERED according to act of congress, in the year 1839, by E. JOHNS & CO. in the clerk’s
office of the district court of the United States for the eastern district of Pennsylvania.
Philadelphia:
T. K. & P. G. COLLINS, Printers
No. 1 Lodge Alley.
page iv
HIGH COURT OF ERRORS AND APPEALS.
Hon. WM. L. SHARKEY, Chief Justice.
Hon. P. RUTILIUS R. PRAY, Associate Justice.
THOMAS F. COLLINS. Attorney-General.
Hon. JAMES F. TROTTER, Associate Justice,
succeeded JUDGE WRIGHT, November, 1839.
page v
RULES OF PROCEEDING
FOR THE
SUPERIOR COURT OF CHANCERY.
RULE I.
RULES shall be held in the Clerk’s Office, on every Monday, Thursday, and Saturday, of each Term of the
Court, for the purpose of entering all proceedings and orders which may be entered at the Rules. They
shall be held under the direction of the Clerk; but the Chancellor may make or allow any special order
in any cause, which shall be entered in the rule docket, and take effect accordingly.
RULE II.
SECTION 1. No process to bring in a defendant to answer shall issue but upon bill filed.
SECT. 2. The return of process "executed," shall be a sufficient foundation for any subsequent
proceedings. If the process be not executed, the Clerk shall issue other similar process, if the same
be required by the party, at whose instance the original process was issued.
SECT. 3. All process must be executed by a sworn officer, or under his warrant, or when executed by any
other person, affidavit must be made of the service thereof, and filed.
RULE III.
SECT. 1. The day of appearance of the defendant, shall be the first day of the Term to which the
process is returned "exe-
1*
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RULES OF THE
cuted," and if the defendant shall not then appear and answer, plead, or demur, the complainant may
give a rule for answer; and if the defendant be in default at the next succeeding rule day, the
complainant may take his bill for confessed, and the matter thereof will be decreed accordingly by the
Court—or the complainant may have a general commission to take depositions, and proceed to hearing, as
if the answer had been filed; or he may move the court for an attachment to bring in the defendant to
answer: Provided, that the court may, on cause shown, allow the defendant's answer to be
filed, and grant a further day for hearing.
SECT. 2. When a party is in custody upon such writ of attachment, he shall be detained until he file
his answer, or be discharged by the court.
RULE IV.
No replication to an answer shall be filed. But if any matter alleged in the answer, shall make it
necessary for the complainant to amend his bill, he may have leave to do so, with or without costs, at
the discretion of the court.
RULE V.
SECT. 1. The complainant may file exceptions to the answer, on or before the rule day next succeeding
that at which the answer shall have been filed, and give a rule with the Clerk to make a better answer,
on or before the next succeeding rule day; and if within that time the defendant shall put in a
sufficient answer, it shall be received without costs; but if the defendant insists on the sufficiency
of the answer, or neglects or refuses to put in a further sufficient answer, or shall put in another
insufficient answer, the complainant may set down his exceptions on the motion docket for argument—and
after the expiration of such rule, or any second insufficient answer put in, no further or other answer
shall be received, but upon payment of costs.
SECT. 2. If, upon argument, the complainant’s exceptions be overruled, he shall pay to the defendant
such costs as shall be allowed by the court—if the defendant's answer shall be adjudged insufficient,
he shall pay to the complainant such costs as the Court shall allow.
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SUPERIOR COURT OF CHANCERY.
SECT. 3. If, after an answer adjudged insufficient, the defendant shall put in another insufficient
answer, which shall be so adjudged, he or she may be examined on interrogatories, and committed until
he or she shall answer them and pay costs; or the complainant may move the court to take so much of
the bill as is not answered sufficiently, for confessed, and proceed to take depositions, or to hearing
in the usual manner.
RULE VI.
SECT. 1. The defendant may, at any time before the bill is taken for confessed, or afterwards, with
leave of the court, demur, or plead, to the whole bill, or to a part; and he may demur to part, plead
to part, and answer to part;—but in case the bill charges fraud or combination, a plea to such part
must be accompanied with an answer, fortifying the plea, and explicitly denying the fraud and
combination, and the fact on which the charge is founded.
SECT. 2. The complainant may set down the demurrer or plea fur argument, or he may take issue on the
plea—if, upon the issue, the facts stated in the plea be found for the defendant, they shall avail him
as far as in law and equity, they ought to avail; and if found false, the complainant shall have the
like benefit here of.
SECT. 3. If the plea or demurrer be overruled, no other plea or demurrer shall thereafter be received,
but the defendant shall proceed to answer the bill; and if he fail so to do, on or before a day to be
assigned by the court, the bill, or so much thereof as was covered by the plea or demurrer, may be
taken for confessed, and the matter thereof be decreed accordingly.
SECT. 4. Upon a plea or demurrer being argued and overruled, cost shall be paid as where an answer
shall be adjudged insufficient; but if adjudged good, the party pleading or demurring shall have his
costs.
SECT. 5. The defendant, instead of filing a formal demurrer or plea, may insist on the matter of law,
or special matter, in his answer, and have the same benefit thereof as if he had pleaded the same
matter, or had demurred.
SECT. 6. If the complainant shall not reply to, or set down for argument, any plea or demurrer, on or
before the next rule day,
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RULES OF THE
after the filing thereof, the defendant may take the rule, "that the bill be dismissed with costs."
RULE VII.
Upon the coming in of an answer, if the complainant conceives that it confesses the allegations of
the bill sufficiently to entitle him to a decree, he may set down the cause for hearing on bill and
answer.
RULE VIII.
SECT. 1. Rules to plead answer, and for all other proceedings necessary and proper to be taken in the
Clerk’s office, shall be signified to the clerk in his office, and shall be by him entered in a Rule
book, to be kept by him, for the information of all parties, attorneys and counsellors concerned
therein, and shall be considered as insufficient notice of what has been done at the rules.
SECT. 2. The Rules shall be considered as given from rule day to rule day, and the time allowed to
the party to comply with the rule be considered as expired with the calling of the cause by the Clerk,
on that rule day; if the rule be not then complied with, the proceeding consequent upon such
non-compliance may be taken on that rule day against the party in default, and entered accordingly.
RULE IX.
The Court may regulate all proceedings at the Rules, correct errors, set aside dismissions, and
reinstate the suits, from time to time, on such terms as may appear equitable; and no dismission or
other office judgment shall be considered final until approved and confirmed by the Court, and so
entered of record.
RULE X.
Abatement and Revivor.
SECT. 1. Where any party, either complainant or defendant, in any suit, shall be dead, it shall be the
duty of the Clerk, upon application, to issue process to bring into court, the representatives of such
deceased person, to show cause why the suit should not be revived.
SECT. 2. When pending any suit in this Court, any party shall
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SUPERIOR COURT OF CHANCERY.
die, the proper representatives of the personalty or realty of the deceased party, according to the
nature of the case, may voluntarily come in and be admitted parties to the suit; and if such
representatives shall not voluntarily become parties, then the complainant, or if he be dead, his
representatives, may come in, be admitted parties, and have the suit revived, and shall have the
proper process to bring in the representatives of any deceased defendant, and have the suit revived
against them; and, upon suggestion, upon the record of the death of any complainant, the defendant,
on motion, may obtain an order, that unless the representatives of such deceased complainant, shall
become parties within the first three days of the ensuing stated term, that the suit shall be abated;
or at his election, if he may have an interest and benefit in proceeding further in the cause, may
have, upon motion, an order for process, to bring in the representatives of the deceased complainant,
and to revive the suit, and to proceed to a hearing.
RULE XI.
Affidavits to bills, answers, pleadings, or for verification of facts whereon to ground any motion,
order or proceeding, must be signed by the party making such oath or affirmation, and if taken within
this State, may be sworn or affirmed before any Justice of the Peace, or Mayor of a city, Notary
Public, Commissioner in Chancery or Judge; and without this state may be sworn to or affirmed before
any Justice, Notary Public, Mayor, or Alderman of any City, Town or Corporation, Judge, or Chancellor,
of any of the States, Territories, or District of this Union, or of any Foreign State, Kingdom or
Potentate, or the Clerk of this Court, or his Deputy, duly appointed.
RULE XII.
Amendments will be permitted, of Process, at any time before final decree, without costs.
Amendments of Bills will be permitted before the defendant and his attorney hath taken out a copy, or
in a small matter afterwards, without costs; but afterwards, upon the payment of costs occasioned
thereby: Provided, that no amendment shall be allowed, of course, to a bill that has been
sworn to by the party.
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RULES OF THE
Amendments of Answers, will be permitted without costs, if before the complainant, his attorney or
counsellor hath taken out a copy or excepted; if afterwards, upon payment of costs occasioned thereby,
to be taxed, in such cases, by the clerk. But no answer sworn to, shall be amended without leave of
the Court.
RULE XIII.
SECT. 1. Answers must be signed by Counsel; must be free from scandalous and impertinent matter. If
complaint be made, that the answer offends against the rules of Courts of Chancery in this behalf the
complainant, on motion, may have it referred to the Clerk acing as Master in Chancery, or other person
to be designated by the Court, to look into the answer, and report whether any, and what impertinent
or scandalous matter may be contained in it; and if the answer be adjudged scandalous and impertinent,
the court will order such matter to be expunged, and that the defendant pay the costs to be taxed by
the Clerk.—Moreover, the Court may hold the Counsel who signed the answer with scandalous and
impertinent matter in it, responsible for so doing.
SECT. 2. After a cause is set for hearing, a motion to refer an answer for scandal or impertinence will
not be allowed.
RULE XIV.
Exhibits.
SECT. 1. All papers and documents referred to in any bill or answer, except papers on file, and records
of this court, must accompany, and be annexed to, or filed with the same, or the reason for not filing
them be accounted for in such bill or answer, otherwise such bill may be dismissed, or the answer
taken from the file, and the bill taken for confessed, and decree be entered, as the case may be:
Provided, the court may give a day for filing exhibits, when required by the opposite party.
SECT. 2. Exhibits of complainant shall be designated by letters, and those of the defendant by figures.
RULE XV.
Of Bills and Cross Bills.
SECT. 1. Bills must be signed by Counsel-must be plainly and distinctly written on one side of one or
more sheets or half sheets
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SUPERIOR COURT OF CHANCERY.
of good writing paper, well fastened together by sowing or otherwise—must state the county of the
residence of each party, complainant and defendant, or if any defendant be a non-resident, state of
what State or county—bills must be free from scandalous or impertinent matter; and upon complaint that
a bill is scandalous or impertinent, the defendant may, upon motion, have it referred, as in Rule
XIII, and like proceedings had thereon, as in case of answers so referred.
SECT. 2. After an answer is filed, a motion to refer the bill for scandal or impertinence will not be
allowed.
SECT. 3. When a cross-bill shall be filed, the defendant to the original bill shall answer thereto,
before the defendant or defendants to the cross-bill shall be required to answer to such cross-bill.
RULE XVI.
Of the Clerk.
SECT. 1. He shall give his attendance personally in Court, during the Sessions, unless prevented by
sickness, or be absent by leave first obtained of the Chancellor, except in the cases provided by law,
where he may appear by deputy.
SECT. 2. He shall keep a general docket, showing the names of the parties, the time of filing the bill,
the service of process, the time of filing the answer, the state of the pleadings and of the parties,
their attorneys and counsel, and all persons concerned.
SECT. 3. He is required to endorse on every paper filed in a cause, the style of the suit, and the time
when, and the party by whom it was filed.
SECT. 4. He shall not suffer any paper so filed to be withdrawn but by leave of the Chancellor, and
then a copy must be retained, at the cost of the party obtaining leave to withdraw it.
SECT. 5. He shall not suffer the original papers belonging to any case, to be handled or used in his
office, but in the presence of, and under the superintendance of himself or his deputy, nor to be taken
out of his office and custody, but by the Chancellor or his order, or the order of a Court having
competent jurisdiction in that behalf.
SECT. 6. He shall prepare for the Chancellor, at the commencement of every stated term, a docket
showing the causes set down
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RULES OF THE
for hearing, and for argument, office dismissions, and other questions and matter standing for hearing,
decree, confirmation, or decision of the Chancellor; and shall regularly and promptly after each rule
day, during the session, add to the docket all such additional cases as shall have been set for hearing
or argument, or so proceeded in at the rules, as to stand for the order, decision, confirmation, or
regulation of the Court.
SECT. 7. He shall file with the papers in each cause, when heard, a statement, for the use of the
Chancellor, of the process, pleadings, orders at the rules, and in Court, and other proceeding had
and made therein, (if any such,) which do not appear on the docket furnished to the Chancellor.
SECT. 8. He shall also keep a motion docket, as heretofore practised in this Court, in which shall be
entered all motions proper for hearing on motion days.
SECT. 9. He shall not undertake nor act as attorney, solicitor, counsellor, or attorney in fact, or
agent for either party, as to any matter begun, pending, or to be executed in this Court, or under
the authority of its process.
SECT. 10. Where bond and security is, by any order for injunction, or attachment, or other restraining
orders, directed to be given in the office, such order shall be considered as no longer of avail to the
party who obtained it, unless bond with security be executed within thirty days after the granting of
such order.
SECT. 11. For prevention in errors in entering up the decrees and orders of the Court, the proceedings
of each and every day shall be drawn up at large by the Clerk, in the Minute Book, and when so prepared,
shall be read in open Court, for any necessary corrections to be made therein, on the meeting of the
Court the next succeeding morning; and when so read and approved, they will be signed by the
Chancellor: Provided, that on the last day of each term, the minutes shall be prepared and
signed on the same day.
SECT. 12. He shall keep a Register ofthe Attorneys and Counsellors admitted to practise in this Court,
and make a roll of their names, arranged in the order established by the sixth section of the 17th
rule—which roll he shall arrange and remode1 from time to time, as circumstances shall require, and
be kept by him for the use of the Court and the Bar.
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SUPERIOR COURT OF CHANCERY.
RULE XVII.
Of Counsellors and Attorneys.
SECT. 1. Counsellors and Attorneys at law, of this Court, who shall prepare or file bills, answers,
and other pleadings, are expected to sign them, and to be responsible to the Court that such pleadings
are decorous, and free from scandalous and impertinent matter.
SECT. 2. Only two Counsel will be permitted to argue for each party, complainant and defendant, in a
cause.
SECT. 3. Admissions of facts, or consent, to orders or decrees, or to waive rights and privi1eges under
the rules of this Court, made by attorneys, or counsellors, must be in writing, signed,and filed with
the papers in the cause, or be entered on the minutes by the Clerk, where the parties consent in his
presence.
SECT. 4. Consent of Counsel only, will not be allowed to continue stale cases hanging on the docket—the
consent ofthe Court, for cause shown, must be obtained.
SECT. 5. The Counsel for each party, complainant and defendant, shall, in convenient time, before the
argument of the case, furnish the court with a brief; or succinct abstract of the cause, containing the
facts relied on, with a reference to the document, exhibit, deposition or evidence in support of the
facts, the principles of law and equity intended to be insisted on, and a citation of the authorities
intended to be used in support of those principles.
SECT. 6. In motions they shall have precedence: first, the Attorney General, and then according, to
their seniority in the profession; but no one to make a second motion until each has had an opportunity
of making his motion:—Attention to this rule, by the gentlemen of the Bar, and to the roll to be kept
by the Clerk, may render a formal call of the roll unnecessary.
SECT. 7. Motions may be made on each day, after the minutes of the preceding day shall have been read,
the opinions and decrees of the Court pronounced, and before a case for hearing or argument has been
opened, and not afterwards, until the cases set for the day have been disposed of, unless the motion
relates to the case in hearing, or be of urgency as to time.
VOL. III.-2
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RULES OF THE
RULE XVIII.
SECT. 1. Depositions are to be taken according to the several acts of the General Assembly.
SECT. 2. No deposition shall be reduced to writing, in any part, by the attorney or counsellor of
either party, but every deposition shall be reduced to writing wholly by the person executing the
commission, or by the witness himself, in presence of such commissioner, and signed in his presence
by the witness.
SECT. 3. No witness shall be twice examined by the same party, unless by special leave of the court,
or because the first examination was under a commission de bene esse.
RULE XIX.
Exhibits, deeds, documents, and writings essential to the justice of the cause, may be proved
viva voce, at the hearing, upon the application of the party who is to make use of them; for
this purpose, an order must be obtained describing the deed, document, or writing to be proved, and
such testimony shall be reduced to writing in court, by the Clerk, and filed in the case.
RULE XX.
Exceptions to Answers must be taken, before the complainant sets the cause down for hearing; and when
taken for insufficiency, must contain the charge in the bill not answered, and refer to the page in
the bill which contains the charge.
Exceptions to Depositions, must state the cause of objection specifically, must be in writing, and
filed with the Clerk before the cause is called for hearing, otherwise, no exception will be allowed
to the reading, except for interest, or other incompetency appearing by the pleadings and evidence.
Exceptions to the Reports of Commissioners in Chancery must be in writing, and state particularly the
error or grievance complained of.
Exceptions to Bids for Scandal, Impertinence, or want of exhibits referred to, must be made before
answer filed.
Exceptions to Answers, for like causes, must be before the cause is set for hearing.
Exceptions to the sufficiency of the Securities for prosecution
page xv
SUPERIOR COURT OF CHANCERY.
of a suit, or under any order for injunction or bail, may be made at any time pending the suit, upon
reasonable notice to the adverse party.
RULE XXI.
Injunctions.
Motions to dissolve, must be on five days’ notice, in writing to the adverse party, or his attorney,
or by entry of such motion on the rule docket, the like period of time. No motion to dissolve will
be heard after the cause is set down for hearing, nor after a former motion overruled.
No motion to discharge an injunction on the face of the bill, for want of equity, will be received,
the defendant may demur, and set down the demurrer for argument.
RULE XXII.
Guardian ad litem.
No order appointing a Guardian ad litem, to defend Infants will be made, until after the
return day of process executed, or until after publication, in case of non-residents executed, and
the day assigned for appearance of the non-resident defendants has passed.
RULE XXIII.
SECT. 1. Commissioners in Chancery shall not act as attorney, counsellor, or agent for either party,
in any matter pending or to be executed under the order or process of this Court, before such
Commissioner.
SECT. 2. When a matter is referred to a Commissioner, to examine and report thereon, he shall assign
a day and place therefor, and give reasonable notice to the parties, or the attorney of the parties,
by personal service, or by advertisement in the nearest newspaper, according to circumstances—if
either party shal1 fail to attend, the Commissioner may adjourn the matter to some future day, and
give notice thereof to the parties or their attorneys, in which notice it shall be expressed, that,
if the party shall fail again to appear, the Commissioner will proceed ex parte; and if,
after receiving such notice, the party shall again fail to attend, the Commissioner may proceed to
examine the matter
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RULES OF THE
to him referred. He is authorised and required to administer all oaths, and take the necessary proof
required, in examining each and every account or matter to him referred; he shall take down in writing
such proof, and return it with his report, and having completed his examination and statement, he
shall make report thereon to the Court, and such proceedings shall be had thereon, as shall seem
right and equitable.
RULE XXIV.
Notice.
The parties and their attorneys must take notice of the proceedings at the rules: No other notice
thereof will be required, than the entries of the proceedings on the rule docket.
RULE XXV.
Parties.
Complainant must bring in all necessary and proper parties in interest, before the Court; and if he
omit to do so, either a defendant, against whom process is prayed, or a party in interest against whom
no process is prayed, may, upon showing to the Court, that parties in interest do exist, who have not
been made parties by the bill, have a rule upon the complainant, to make such parties in interest
parties to his bill, or show cause to the contrary; and if the complainant shall fail to make such
parties, or to show cause at the expiration of the rule, his suit may be dismissed.
RULE XXVI.
Re-hearing.
SECT. 1. Every petition for re-hearing, must be in writing, and signed by two or more counsel, not
concerned in the cause; shall contain the special matter or cause on which such re-hearing is applied
for, and the facts therein stated, if not apparent on the papers on file, shall be verified by the
oath of the party, or some other person. The petition will be considered and decided on without
argument, and if granted, a day will be assigned for the re-hearing.
SECT. 2. The petition for rehearing must be presented within five days after the decree pronounced.
SECT. 3. No petition for a rehearing, shall supersede the exe¬
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SUPERIOR COURT OF CHANCERY.
cution of the decree, unless so allowed and ordered by the Chancellor.
RULE XXVII.
On Tuesday and Thursday of each week, the Chancellor will call the trial docket, and, upon the call,
will hear applications for further testimony, if desired in any cause, and arrange the causes for
hearing and argument, by assigning a particular day for each, if desired by the parties or their
attorneys; and when a day is so assigned, the case will not be heard at an earlier day.
RULE XXVIII.
Surveys.
Orders of surveys may be taken at the rules: the Surveyor shall return four fair plats and certificates
of survey, two whereof shall be kept by the Clerk, and one thereof, so returned, he shall send with
the record to the High Court of Errors and Appeals, upon any appeal or writ of error prosecuted:
either party may proceed to the execution of the order, the adverse party to have reasonable notice
of the time and place of beginning to execute it.
RULE XXIX.
No cause to be set down for hearing, unless it be ready for trial as to all parties.
RULE XXX.
Counsel shall prepare decrees, under the direction of the Chancellor.
RULE XXXI.
In all Injunction Bills against non-resident defendants, if the complainants do not, at the return of
the subpoena into Court "not found," obtain at said return term; from the Court, an order of
publication, notifying the said absent defendant or defendants of the pendency of such bill, the
said injunction shall stand dissolved, of course.
RULE XXXII.
The parties should make their proofs as full before publication as the nature of the case requires
or admits, to the end that the
2*
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RULES OF THE
supplementary proofs before the commissioners or auditors, may be as limited us the rights and the
responsibilities of the parties will admit.
RULE XXXIII.
Orders of reference should specify the principles on which the accounts are to be taken, or the inquiry
proceed as far as the Court shall have decided thereon, and that the examination before the
commissioners or auditors should be limited to such matters within the limits of the order, as the
principles of the decree or order may render necessary, and as were not examined to, or fully proved
before, publication.
RULE XXXIV.
No witness in chief, and examined before publication, nor the parties ought to be examined before the
commissioners or auditors; and no witnesses once examined before the commissioners or auditors ought
to be examined again on the same matters, without a special order for that purpose, and the order ought
to specify the matter or extent of the examination, except, however, that the accounting party may
establish, by his own oath, being credible and pre-contradicted, small sums not exceeding twenty
dollars, according to the course of the Court.
RULE XXXV.
The commissioners or auditors, ought, in the first instance, to ascertain from the parties or their
counsel, by suitable acknowledgments, what matters or items are agreed to be admitted, and then, as a
general rule, and for the sake of precision, the disputed items claimed by either party, ought to be
reduced to writing by the parties respectively, by way of charges and discharges; aud the requisite
proofs ought then to be taken by written interrogatories, prepared by the parties and approved by the
commissioners or auditors, or viva voce examination, as the parties shall deem host expedient,
or the commissioners or auditors shall think proper to direct in the given case—that the testimony may
be taken in the presence of the parties, or their counsel, if they choose to attend, (except when by a
special order of the Court it is to be in secret) and ought to be reduced to writing in cases
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SUPERIOR COURT OF CHANCERY.
where it shall be deemed desirable by the commissioners or auditors, or under their direction, as
well when a party as a witness is examined.
RULE XXXVI.
In all cases where the Commissioners or Auditors are directed to report the proofs, the deposition of
the witness should be reduced to writing by them, and subscribed by the witnesses, and the depositions
returned with his report to the Court.
RULE XXXVII.
When an examination is once begun before the Commissioners or Auditors, they ought, on assigning a
reasonable time to the parties, to proceed with as little delay and intermission as the nature of the
case will admit of, to the conclusion of the examination, and when once concluded, it ought not to be
opened for further proof without special and very satisfactory cause shown.
RULE XXXVIII.
After the examination is concluded, in case of reference to take accounts or make inquiries, the
parties, their solicitors or counsel, ought to have a day assigned them, to attend before the
commissioners or auditors to the settling of their report, and make objections, if any they have,
in writing, and when the report is finally settled and signed, the parties ought to be confined, in
their exceptions to be taken in Court, to such objections as were overruled or disallowed hy the
commissioners or auditors.
RULE XXXIX.
When either party is to be examined, they may be by written interrogatories or viva voce at
the option of the parties, and all proceedings before the commissioners or auditors shall be taken
notice of by the parties respectively, at their peril, without service of copies of such papers as
may be filed with the auditors or commissioners, and in all cases the question of notice or no notice
shall be decided by the commissioners and auditors themselves, and shall form no ground for exception
to their proceedings, unless partiality or injustice shall be shown.
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RULES OF THE
RULE XL.
The general principles and mode of proceeding, under the preceding rules, shall be conformable to the
practice of the State of New York, with the exception of the formality of giving notice, serving copies
of papers, &c., and so far as the same may not be inconsistent with the rules hereby established.
RULE XLI.
No Counsellor or Solicitor of this Court, shall be bail or security in any cause pending therein.
RULE XLII.
Final decrees may be signed by the Court at any time during the term at which the same were pronounced,
but no process shall issue thereon until after the expiration of thirty days from the time of
pronouncing the same, unless otherwise ordered by the Chancellor.
RULE XLIII.
The sum of five dollars per day shall be allowed to all Commissioners or Auditors appointed by this
court to take accounts and make inquiries, and the time necessarily employed in the execution of their
duties to be certified on oath to the court, on the return of the report.
RULE XLIV.
In all Injunction cases, affidavits may hereafter be read in support of the bill or answer, upon the
motion to dissolve: Provided, the same have been taken upon notice to the opposite party or
their solicitor; and in case of the absence of the party, or in case no counsel is employed upon whom
notice can be conveniently served, by their advertisements, for three weeks in succession, in one or
more of the public newspapers printed in this State.
RULE XLV.
Wednesdays and Saturdays of each Term shall be motion days; and when a motion is regularly called on
the motion
page xxi
SUPERIOR COURT OF CHANCERY.
docket, if the party making the motion fail to answer when called, the motion may be dismissed.
RULE XLVI.
Motions to dissolve Injunctions, shall be heard on written arguments of counsel or briefs, and not by
argument in open Court, except by order of the Chancellor.
page xxiii
Table of Cases
Adams v. Munson, 77
Bennet v. M'Gaughy, 192
Bright v. Rowland, 398
Briggs, Newell v., 45
Browder, Carmichael v., 252
Burnham, Reeves v., 26
Calhoun, Matlock v., 70
Calvit's Ex'ors v. Markham, 343
Calvit, Scott v., 148
Campbell v. Young, 301
Carmichael v. Browder, 252
Carmichael v. Trustees of School Fund, 84
Carmichael v. The Governor, 236
Cody v. The State, 27
Cohea, Smith v., 35
Coleman, Leftwich v., 167
Cornell v. Rulon, 54
Cox v. Wadlington, 57
Curtis, Doe v. 230
Dickson v. Hoff's Adm'r, 165
Dickson v. Parker, 219
Doe v. Curtis, 230
Doe v. King's Heirs, 125
Doe v. Van Campen, 66
Doss, Randolph v., 205
Ewing v. Glidwell, 332
Fearn, Mitchell v., 122
Fitch v. Scott, 314
Flournoy v. Smith, 63
Ford, Grigsby v., 184
Foster's Heirs, Newman v., 383
Friar v. The State, 422
Gallaway, Rogers v., 58
Gamble v. Trahen, 32
Glidwell, Ewing v., 332
Governor, (The) Carmichael v., 236
Grand Gulf Railroad and Banking Company, Thompson v., 240
Green v. The Planters' Bank, 43
Green v. Robinson, 105
Grigsby v. Ford, 184
Grisham, Porter v., 75
Harney v. Demoss, 174
Hoff's Adm'r, Dickson v., 165
Houston, Lowry v., 394
Iler v. Routh's Heirs, 276
Ingraham v. Russell, 304
Irving, Montgomery v., 191
James, Scott v., 307
King's Heirs, Doe v., 125
Leftwich, Coleman v., 167
Lewis v. The Planters' Bank, 267
Lillard v. The Planters' Bank, 78
Loper v. The State, 429
Lowry v. Houston, 394
Markham, Calvit's Ex'or v., 343
Matlock v. Calhoun, 70
page xxiv
Table of Cases
M'Daniel, Rogers v., 172
M'Daniel, Vick's Ex'or v., 337
M'Gaughy, Bennett v., 192
M'Leod, Tutt's Adm'r v., 223
M'Nutt v. Wilcox, 417
Mercer, Stark v., 377
Mitchell v. Fearn, 123
Montgomery, Irving v., 191
Moore, Smith v., 40
Morse, Saunders v., 101
Munson, Adams v., 77
Murrah, Sadler v., 195
Newell v. Briggs, 45
Newman v. Foster's Heirs, 383
Newton, Stamps v., 34
Norris, Warbington v., 227
Oakey v. Wilcox, 330
Orne v. Sullivan, 161
Overstreet v. The State, 328
Parker, Dickson v., 219
Pease v. Turner, 375
Peter, a Slave, v. The State, 433
Planters' Bank, Green v., 43
Planters' Bank, Lewis v., 267
Planters' Bank, Lillard v., 78
Planters' Bank, Soria v., 46
Porter v. Grisham, 75
Price, Rector v., 321
Randolph v. Doss, 205
Reeves v. Burnham, 26
Rector v. Price, 321
Robinson, Green v., 105
Rogers v. Gallaway, 58
Rogers v. M'Daniel, 172
Rowland, Bright v., 398
Routh's Heirs, Iler v., 276
Rulon, Cornell v., 54
Russell, Ingraham v., 304
Sadler v. Murrah, 195
Saunders, Morse v., 101
School Lands, (Trustees of) Carmichael v., 84
Scott v. Calvit, 148
Scott, Fitch v., 314
Scott v. James, 307
Shackelford, Trahern v., 73
Sims, Stilwell v., 176
Sinclair, Tourney v., 324
Smith v. Cohea, 35
Smith v. Flournoy v., 63
Smith v. Moore, 40
Smith v. Smith's Adm'r, 216
Soria v. The Planters' Bank, 46
Spring, Witherspoon v., 60
State, (The) Cody v., 27
State, (The) Friar v., 422
State, (The) Loper v., 429
State, (The) Overstreet v., 328
State, (The) Peter, a Slave, v., 433
Stamps v. Newton, 34
Stark v. Mercer, 377
Stilwell v. Sims, 176
Sullivan, Orne v., 161
Thompson v. The Grand Gulf Railroad and Banking Co., 240
Tourney v. Sinclair, 324
Trahen, Gamble v., 32
Trahern v. Shackelford, 73
Tunstall, Walker v., 259
Turner, Pease v., 375
Tutt's Adm'r v. M'Leod, 223
Van Campen, Doe v., 66
Vick's Ex'or v. M'Daniel, 337
Wadlington, Cox v., 57
Walker, Tunstall v., 259
Warbington v. Norris, 227
Wilcox, M'Nutt v., 417
Wilcox, Oakey v., 330
Wilkins, Wooldridge v., 360
Wooldridge v. Wilkins, 360
Young, Campbell v., 301