ther time for pleading.(u) For the cause is never concluded against the judge, who at the hearing may admit an allegatian or exception if he shall think it necessary.(x) The ecclesiastical court is exceedingly cautious in admitting any plea after publication; there are *strong objections which it is absolutely necessary for the [ *517 ] party to get over; it would lead to subornation-witnesses might supply defects, might avoid contradictions, might make artificial evidence; these are evils which the court will strive in every possible way to prevent; and it therefore always requires strict and legal proof that these evils cannot happen. It must be shown that facts have come to the knowledge of the party since his former plea; this is always demanded, and is usually done by affidavit. The court has power on such affidavit, and always does for the purposes of justice, to exert its authority in admitting a plea of facts, which, for want of being known, could not be pleaded before. Where such facts and former want of information are shown, the court will never shut its ears, for otherwise it might give sentence when it knows that the party could possibly give a good reason against it. When this danger is removed, there is only one other reason against admitting such a plea, namely, delay or a want of proper diligence. Material facts newly come to the knowledge of the party may therefore be pleaded after publication.(y) According to the practice of the ecclesiastical courts, documents annexed to the interrogatories cannot be known to the other party to have been so annexed till publication of the evidence has passed, and when, without special leave, no further plea, unless exceptive, can be admitted.(z) No party, whether originally or a mere intervener in a cause, can of right plead in the principal cause after publication has once passed of evidence taken in that cause; but the court, if prayed, may still ex gratia permit a party to plead on cause shown.(a) The court, before granting a prayer to rescind the conclusion, in order to the admission of an allegation, requires an affidavit setting forth facts material as well as noviter perventa, and it generally also requires that the allegation pleading those facts shall be tendered at the time of making the prayer.(b) When the court is prayed to rescind the conclusion of a cause, in order to fresh matter being pleaded, it always requires to be satisfied both that the party praying it is not guilty of [ *518 ] laches, and that the measure prayed is one essential to the ends of justice; it always further requires that some special ground be laid (as that of such fresh matter having newly come to the party's knowledge, or as the case may be) to found the prayer.(c) The ecclesiastical law, it is well known, demands for full proof the testimony of two witnesses; in a case where on the evidence of one (u) Middleton v. Middleton, 2 Hagg. Eccl. R. Supp. 135. (x) Halford v. Halford, 3 Phill. R. 103; Ingram v. Wyatt, 1 Hagg. Eccl. R. 105. To conclude in the cause is nothing else but to renounce all further discussing and disputing the matter, and to submit the controversy to the knowledge of the judge. Therefore the conclusion of the cause is a judicial act, whereby the cause or some article of the cause is accounted for concluded: so that there is no room left for the parties' further disputation.-Conset. 156. (y) Middleton v. Middleton, 2 Hagg. Eccl. R. Suppl. 134. (z) 3 Hagg. Eccl. R. 352, n. (a) Clement v. Rhodes, 3 Addams's R. 37. witness the court is morally, though it cannot be judicially, satisfied of the guilt of the party charged, the conclusion of the cause will be rescinded for further proof. In Searle v. Price, (d) in a suit of nullity on account of a former marriage, the conclusion of the cause was rescinded in order to prove the identity of the party, and in another case to explain the delay in instituting the suit.(e) Matter pleadable. in the principal cause cannot be pleaded after publication in exception to evidence.(f) Pleading in forma Pauperis.]-Ether the plaintiff or the defendant in a suit, whether at the commencement of the proceedings, or in any subsequent stage of them, may be admitted in the ecclesiastical courts. to plead in the form of a pauper under certain regulations.(g) A person may be admitted in forma pauperis if he swears that he is not worth 57., his debts being paid; and if the adversary requires it, he must swear that when he comes to a more plentiful fortune (if the suit be for tithes or legacies, &c.) he will pay the principal matter with costs.(h) To sue as a pauper is a great privilege of law, it belongs only to the necessity arising from absolute poverty, and from the absence of any other mode of obtaining justice; no person is entitled to the tuitous labours of others who can furnish the means of providing them for himself; besides it places the adverse party under great disadvantages, it takes away one of the principal checks upon vexatious litigation; the legal claim to so great a privilege, ought therefore to be clearly made out. It is a complete but not an uncommon misapprehension of the law, to suppose that because a person is [ *519 ]in insolvent circumstances, and because he can truly and conscientiously swear that he is not worth 51. after all his just debts are paid, that therefore he is entitled to be admitted, or rather to proceed as a pauper; it is prima facie ground to admit him as such, but no more; if it were otherwise, many persons living in great splendour and luxury would be so entitled: for many persons in business, in the enjoyment of an immense income, and maintaining a proportionate expenditure, would not be worth 51. after the payment of their just debts.(i) The decisions however have gone on very different grounds. In Riley v. Rivett,(j) Riley prayed to be admitted a pauper, and swore he was 1,6007. in debt, but admitted that his brother allowed him annually for keeping his books 100%. The court decided that he was not entitled to be admitted. In Barham v. Barham,(k) the court stated, "If a person has the means by honest exertion to acquire a competence, he has no claim to be admitted a pauper. Mr. Barham in two years has expended 7501.; he is not the kind of person entitled to the indulgence of having the labours of others gratuitously;" and overruled his petition to be admitted a pauper. In an anoymous case,() where a motion was made to dispauper a person who was plaintiff in an action, because he had a living of 40l. a year. though he had sworn he was in debt more than he was worth; Holt, C. J. was of opinion that his being indebted was no reason; it was enough that he had a considerable estate in possession. In Smith v. Smith, (m) the court said, "If a party has a current income, though no permanent property, he must be dispaupered; this person has about 201. a year from houses, he gets about 401. a year by his business as a carpenter: his whole income is about 621.;" and the court dispaupered. In Shaw v. Shaw, (n) the court laid it down, "The question is, whether to admit a party a pauper? Suing in forma pauperis is a great privilege, and only belongs to real poverty; the common rule, both at common law and in this court, is, that after payment of debts he must not be worth 57.; yet this is not to be understood [ *520 ] if *there be an income, though after the settlement of his affairs he may not be worth 51. A man worth an income of 5000l. per annum may not after payment of his debts be worth 57. party admits that he had an income of 70l. per annum, though he is in debt above 2007. beyond his effects, so that he is not in a state of extreme poverty. I shall reject his application to be admitted a pauper."(o) A party who by his business or profession is capable of obtaining a livelihood, although in possession of no property; is not entitled to proceed in forma pauperis.(p) A respondent may be admitted as a pauper, but having a sentence in his favour, very materially distinguishes his case from that of a person who attempts to appeal in forma pauperis.(g) The court looks at the pauper's faculties at the time of the application, and not at what property he might have been possessed of at a former time. (r) A pauper, so admitted in the middle of a suit, may at least be condemned in costs up to the time of his being admitted pauper.(s) The Mode of taking Evidence.]-We now proceed to state generally the mode of taking evidence in the ecclesiastical courts. The subject is too extensive to be fully examined in a work of this kind. The witnesses are either brought to London to be examined, or if they reside at a great distance or are otherwise unable to attend, they are examined by commission near the places of their residence. The directions of the commission should be strictly followed; thus a direction to swear the witnesses in the presence of a notary cannot be dispensed with.(t) The judge of the ecclesiastical court has power to enforce the attendance of witnesses. Upon the proctor of a party alleging that A. B. is a necessary witness, and that he has been tendered his expenses, but refuses to attend and give evidence, the judge or his surrogate will direct a compulsory (being in the nature of a subpana) to issue under the seal of the court wherein the cause is pending. *Should the person, on being served therewith, treat the [ *521 ] same with contempt, by not obeying the order or mandate (m) Consist. Hilary Term, 1794. (n) Consist. Mich. Term, 1807. where a pauper was admitted to appeal: Taylor v. Bouchier, 2 Dick. 504; 4 Br. P. (0) Lovekin and others v. Edwards and C. 708, 2nd ed. others, Phill. R. 183–186. (p) Walker v. Walker, 1 Curteis, 561. (9) Taylor v. Morse, 3 Hagg. Eccl. R. 179. See Bland v. Lamb, 2 Jac. & W. 402, AUGUST, 1841.—2 A (r) Taylor v. Morse, 3 Hagg. Eccl. R. 179. (s) Filewood v. Cousins, 1 Addams, 286. (t) 2 Phill. R. 241. therein contained, the proctor of the party, at whose suit the compulsory issues, procures a written notice to be served upon him intimating his intention of applying to the court on a stated day to pronounce, him (the witness not attending) in contempt; and should this notice be unheeded, the court will generally pronounce such person in contempt on the day of the return of the compulsory,(u) and direct the same to be signified,(x) whereupon a writ de contumace capiendo,(y) issues from the court of chancery to take the offending party into custody where he remains until he declares his readiness to obey the mandate of the court; and upon so doing, a writ of deliverance(2) passes under the seal of the ecclesiastical court to release him from custody.(a) It often happens that when publication passes, some portion of the evidence is unnecessary, yet the examiner cannot venture to exclude any part that is admissible, nor can even the party or his counsel often decide before the whole proofs are seen what can safely be withheld. If the examiner entertains any doubt as to receiving evidence, it is safer not to reject it. That can be done ultimately by the court, and there is no irreparable injury done by the admission of evidence, as there would be by a too hasty exclusion; but care should be taken, in admitting specific facts in general inquiries, especially in cases of character, that the facts stated be plain and simple, and not such as will run into intricacy of discussion or ambiguity.(b) If the construction of an article in a plea is doubtful, an examiner will act prudently in taking the evidence down, and leaving it to the court to reject it afterwards, if extra-articulate. (c) It is a very irregular and dangerous practice for the proctors on each side to set down a full statement of what each witness can say in order that the examiner may examine by it. If a case depends on special facts, such facts should be specially pleaded; *the party may then object if [ *522 ] they are irrelevant, and the witnesses may be cross-examined to them. This is the only mode of obtaining evidence on which the court can rely.(c) The examiner should strongly disincline to receive specific facts, where the article admitted by the court is in general form.(d) Where the articles in the plea are general, it should be adhered to, and the examinations taken upon it should be likewise merely general. There may be cases where a specification under such an article may be received, particularly in cases merely civil; but where it is introduced, such specification should be so exact as to time and place, and all other material circumstances, as to give the party full opportunity of defence.(e) The facts allowed to be stated must be plain and simple, and not such as would probably run into intricacy of discussion. (f) It is the general rule both of the civil and the canon law to examine witnesses secretly. This mode is practised not only in the ecclesias (b) 1 Hagg. Cons. R. 97; 1 Hagg. Eccl. R. tical courts of this country, but in the tribunals of all those countries where the ancient civil and canon law has been received in practice. The secrecy prescribed by the general rule is modified in different countries, for there are degrees of secrecy; a tribunal is secret, where it is held with closed doors; another species of secrecy is where only the judges and parties are present; another, where the judges only are present. Originally the witness was examined by the judge himself, taking to his assistance a notary to reduce the deposition into writing, no one else being present. In the ecclesiastical courts of this country the examinations are taken by a practitioner; who represents the judge; a notary, who reduces the deposition into writing, and who remains quite alone with the witness.(g) The rule of the ecclesiastical court is to proceed upon written and not upon viva voce testimony, although under peculiar circumstances it may receive the latter species of evidence.(h) [ *523 ] *The depositions are taken in private by the examiners of the court, employed for that purpose by the registrars. The examination does not take place upon written interrogatories previously prepared and known; but the allegation is delivered to the examiner, who, after making himself master of all the facts pleaded, examines the witnesses, by questions which he frames at the time, so as to obtain, upon each article of the allegation separately, the truth and the whole truth, as far as he possibly can, respecting such of the circumstances alleged as are within the knowledge of each witness.(h) After the witnesses have given all the answers required, the depositions are to be read over to each witness, who is interrogated whether any thing has been put down contrary to or more than he deposed, and any correction, emendation, or addition, should be made, which the witness requires. The depositions, when finally approved, are to be signed by the witnesses. According to modern practice, it it sufficient if the witness, after his deposition has been committed to writing, is interrogated by the judge, or his surrogate, or by the registrar or an examiner in his presence, which is called a repetition or (g) 2 Hagg. Cons. R. 267. (h) Jones v. Yarnold, 2 Lee, 568; Ingram v. Wyatt, 1 Hagg. Eccl. R. 105; 1 Curt. 427. See Griffiths v. Anthony, 5 Ad. & Ell. 623, where one objection in prohibition seems to have been the taking viva voce evidence in the consistory court, but no opinion was given on that point. Sir John Nicholl made the following observations in favour of the mode of taking evidence in the ecclesiastical courts. "It is said, and very truly, that in viva voce examinations, the court and jury have the benefit of seeing the witness, and of collecting from his manner and deportment whether the substance of his evidence be true or false. This advantage is denied to our mode of ex. amining witnesses; but then it has others, with which examinations of witnesses in open Court viva voce are not attended. It affords us an opportunity of considering maturely the story which the witness has told deliberately, of balancing the parts of that story one with another, so far as to form an adequate opinion of its probability or impro. bability; finally, of inspecting its general tone and character, which last, to those the habit of whose life it is to consider written testimony, may ordinarily furnish as accurate a test of the forwardness or shyness of a witness, of his proneness to add or suppress, and the like, as his manner and deportment could do if the witness himself were examined in open court, where, it may be added, very erroneous impressions of these are sometimes at least liable to be formed from the mere embarrassment of witnesses of a certain character under that course of exam ́ination. All this, independent of the benefit of deliberately weighing and comparing the stories told by different witnesses." 1 Addams, 195. (h) Rep. Eccl. Comm. 18. |