Some other points, such as the claim to administration among persons of admitted equal degree of kindred, objections to an inventory and account, and other similar matters, may be heard upon petition and affidavit, where the facts are not of such a nature as to require investigation in the more formal proceeding of regular plead ings and depositions, with the benefit of cross-examining witnesses.
The form of the pleadings is next to be described. These are intended to contain a statement of the facts relied upon and proposed to be proved by each party in the suit, the real grounds of the action, and of the defence.
Causes, in their quality, are technically classed and described as plenary and summary, though in modern practice there is substantially little difference in the mode of proceeding. All causes in the Prerogative Court are summary.
The first plea bears different names in the different descriptions of causes. In criminal proceedings, the first plea is termed the Articles ; in form, it runs in the name of the judge, who articles and objects the facts charged against the de fendant; in plenary causes, not criminal, the first plea is termed the Libel, and runs in the name of the party or his proctor, who alleges and propounds the facts founding the demand ; in testamentary causes, the first plea is termed an Allega tion. Every subsequent plea, in all causes, whether responsive or rejoining, and by whatever party given, is termed an Alle gation.
Each of these pleas contains a state ment of the facts upon which the party founds his demand for relief, or his de fence ; they resemble the bill and answer in equity, except that the allegation is broken into separate positions or articles : the facts are alleged under separate heads, according to the subject-matter, or the order of time in which they have oc curred. Under this form of pleading the witnesses are produced, and examined only to particular articles of the allega tion, which contain the facts within their knowledge ; a notice or designation of the witnesses is delivered to the ad verse party, who is thereby distinctly apprised of the points to which he should address his cross-examination of each witness, as well as the matters which it may be necessary for him to contradict or explain by counter-pleading.
Before a plea of any kind, whether articles, libel, or allegation, is admitted, it is open to the adverse party to object to its admission, either in the whole or in part: in the whole, when the facts alto gether, if taken to be true, will not en title the party giving the plea to the demand which he makes, or to support the defence which he sets up ; in part, if any of the facts pleaded are irrelevant to the matter in issue, or could not be proved by admissible evidence, or are incapable of proof. These objections are made and argued before the judge, and decided upon by him, and his decision may be appealed from. For the purpose of the argument, all the facts capable of proof are assumed to be true : they are, however, so assumed merely for the argu ment, but are not so admitted in the cause ; for the party who offers the plea is no less bound afterwards to prove the facts, and the party who objects to the plea is no less at liberty afterwards to contradict the facts. If the plea is ad
mitted, the further opposition may be withdrawn : if the plea is rejected, the party who offers it either abandons the suit, or appeals against the rejection, in order to take the judgment of a superior tribunal. When a plea has been admitted, a time, or term probatory, is assigned to the party who gives the plea, to examine his witnesses ; and the adverse party is assigned, except in criminal matters, to give in his answers upon oath, to his knowledge or belief of the facts alleged. The defendant may proceed then, if he thinks proper, or he may wait until the plaintiff has examined his witnesses, to give an allegation controverting his ad versary's plea. This responsive allega tion is proceeded upon in the same man ner; objections to its admissibility may be taken, answers upon oath be required, and witnesses examined. The plaintiff may, in like manner, reply by a further allegation ; and on that, or any subsequent allegation, the same course is pursued.
In taking evidence the witnesses are either brought to London to be examined, or they are examined by commission near their places of residence. Their attend ance is required by a Compulsory, some what in the nature of a subpoena, obe dience to which is enforced in the same way as in other cases of contumacy. The examination is by depositions taken in writing and in private by examiners of the court, employed for that purpose by the registrars. The examination does not take place upon written in terrogatories 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 cir cumstances alleged as are within the knowledge of each witness. The cross examination is conducted by interroga tories addressed to the adverse witnesses, and when the deposition is complete, the witness is examined upon the interroga tories delivered to the examiner by the adverse proctor, but not disclosed to the witness till after the examination in chief is concluded and signed, nor to the party producing him till publication and each witness is enjoined not to l:se the interrogatories, nor any part of his evidence, till after publication. In order that the party addressing the interrogato ries may be the better prepared, the proctor producing the witness delivers, as before stated, a designation, or notice of the articles of the plea on which it is intended to examine each witness produced.