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The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail." bim.
If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received, but the defendant shall pro- . ceed to answer the plaintiff’s bill; and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed; and the matter thereof be decreed accordingly,
If the plaintiff shall not reply to, or set for hearing any plea or demurrer, before the second term of the Court after filing the same, the bill may be dismissed with costs.
Upon a plea or demurrer being argued and overruled, costs shall be paid as where an answer is adjudged insufficient; but if adjudged good, the defendant shall have his costs.
The defendant, instead offiling a formal demurrer or plea, may insist on any special matter in his answer, and have the same benefit thereof, as if he had pleaded the same matter, or had demurred to the bilk.
After any bill filed, and before the defendant hath answered, upon oath made that any of the plaintiff's witnesses are aged, infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk may issue a com
mission for taking the examination of such witness or witnesses de bene esse, the party praying such commission giving reasonable notice to the adverse party of the time and place of taking such deposition.
RULE XXV. Testimony may be taken according to the acts of Congress, or under a commission. Whenever a general commission shall be issued for taking depositions upon answer and replication, six months from the time of the replication shall be allowed the parties for taking their depositions ; and either party at the expiration of the said six months may set the cause for hearing, and no deposition taken after that time shall be read as evidence on the hearing, unless the same was taken by consent of parties, by special order of the Court, or out of the District.
Commissions to take depositions may be executed by any person qualified to take testimony according to the laws of the State, or by any person or persons, not exceeding three, appointed or named in the commission by order of the Court, or by any judge thereof in vacation. All testimony taken under a commission shall be taken on interrogatories and cross-inter-, rogatories filed in the cause, unless the parties shall dispense therewith, which interrogatories shall be filed in the clerk's office ten days previous to a rule day, after which the defendant shall be allowed five days to file his cross-interrogatories, unless he waives his right.
RULE XXVII. Orders for the admission of a guardian ad litem, to defend a suit, may be made either by the Court or one of the judges thereof.
RULE XXVIII. Witnesses who live within the District may, upon due notice of the opposite party, be summoned to appear before the com
missioners appointed to take testimony, or before a master or examiner appointed in any cause by subpena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioners, master, or examiner, requiring the attendance of the witnesses atthe time and place specified, who shall be allowed for attendance the same compensation as for attendance in Court; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the Court, which being certified to the clerk's office by the commissioners, master, or examiner, an attachment may issue thereupon by order of the Court, or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the Court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open Court.
When a matter is referred to a master to examine and report thereon, he shall assign a day and place therefor, and give reasonable notice thereof to the parties, or to the attorney or solicitor of such party as may not reside within the District, and if either party shall fail to attend at the time and place, the master may adjourn the examination of the matter to some future day, and give notice thereof to the parties, in which notice it shall be expressed that if the party fail again to appear, the master will proceed ex parte ; and if after receiving such notice the party shall again fail to appear, the master may proceed to examine the matter to him referred, and to report the same te the Court, that such proceedings may be had thereon as to the Court shall seem equitable and right.
RULE XXX. The Courts in their sittings may regulate all proceedings in the office, and may set aside any dismissions, and reinstate the buits on such terms as may appear equitable.
RULE XXXI. Every petition for a re-hearing shall contain the special matter or cause on which such re-hearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or some other person. No re-hearing shall be granted after the term at which the final decree of the Court shall have been entered and recorded, if an appeal lies to the Supreme Court. But if no appeal lies, it may be admitted at any time before the end of the next term of the Court.
RULE XXXII. The Circuit Courts may make further rules and regulations, not inconsistent with the rules hereby prescribed, in their discretion.
In all cases where the rules prescribed by this Court, or by the Circuit Court, do not apply, the practice of the Circuit Courts shall be regulated by the practice of the High Court of Chancery in England.
ORDERED by the Court, that the foregoing rules be the rules of practice for the Courts of Equity of the United States, from and after the first day of July next, and the clerk of the Court is directed to have the same printed, and to transmit a printed copy thereof, duly certified, to the clerks of the several Court of the United States, and to each of the Judges thereof.