NOTE. In Anon. 2 Mad. P. & P. 478. note, it is said, that the Court seldom or ever directs a trial at bar, but only intimates that it would be desirable. But a trial at bar will be directed, the plaintiff consenting to accept nisi prius costs, in case the verdict should be in his favour. Baker v. Hart, supra. Hite v. Salter, 2 Dick. 495. S. C. 7 Bro. P. C. 214. As to granting a new trial after a trial at bar. See Regina v. Ball. de Bewdley, 1 P. W. 212. Richards v. Symes, 2 Atk. 320. Baker v. Hart, supra. No. III. DIRECTION FOR EXAMINATION OF PARTIES. And it is ordered, that either party be at liberty to examine the plaintiffs Thomas Crow and Samuel Whiting, and the defendant Henry Pitham, or any or either of them, as witnesses, or a witness at such trial. Crawley v. Roberts, V. C. 1st March, 1815. Reg. Lib. A. 1814. fol. 584. NOTE. In Howard v. Braithwaite, 1 V & B. 374. the Lord Chancellor, in directing an issue, refused to insert a direction for liberty to either party to examine the other, without consent. But in Gardiner v. Rowe, 4 Mad. 236. the Vice-Chancellor, upon the authority of Harwood v. Harwood, there cited, made an order for the examination of the plaintiff and of one of the defendants, without consent. And in Detastet v. Bordenave, Jac. 520. an order for the examination of the plaintiff and defendant, without consent, was held by the Master of the Rolls to be regular. That such orders are common in bankruptcy. See S. C. When the Court directs a party to be examined as a witness, no objection is waived, except that which arises from his being a party in the cause. Rogerson v. Whittington, I Swan. 40. No. IV. DIRECTION FOR READING DEPOSITIONS. It is ordered, that the parties be at liberty to read the depositions taken in this cause of such of the witnesses as upon such trial shall be proved to be dead, or unable to attend to be examined. Crawley v. Roberts, V. C. 1st March, 1815. Reg. Lib. A. 1814. fol. 584. NOTE. In Jones v. Jones, 1 Cox, 184. on a motion for leave to read the deposition of a witness in the cause, on a trial directed by the Court, on the ground of his age and inability to attend, the Lord Chancellor thought that the application should be made to the judge at the trial, and refused to make any order, as (it is there said) he had frequently done before. But in Palmer v. Lord Aylesbury, 15 Ves. 176. an order was made by the Lord Chancellor that the depositions of such of the witnesses as should be dead, or should be proved at the trial to be in such a state of health as to be incapable of attending, should be read. And in Bellingham v. Pearson, 1 V. & B. 339. note. Wray v. May, Ib. like orders were made. And in Corbet v. Corbet, 1 V. & B. 335. the Lord Chancellor ordered, that the depositions of witnesses, who were proved to be incapable of attending at the trial without great hazard should be read, and of such other persons as should be proved at the trial to be dead, or unable to attend; but leave was given to examine the witnesses on interrogatories in the mean time. Such depositions might be read without an order, upon proof of the death or inability of the witness to attend; but in that case the whole record of the proceedings must be proved. See Palmer v. Lord Aylesbury, 15 Ves. 177. Corbet v. Corbet, 1 V. & B. 336. Gordon v. Gordon, 1 Swan. 170. Depositions de bene esse (being taken before issue joined) cannot be read without an order. Gordon v. Gordon, 1 Swan. 166. S. C. 1 Wils. 155. And see Price v. Bridgman, 1 Dick. 144. No. V. DIRECTION FOR INDORSEMENT ON POSTEA. And if the jury shall find any special matter, the same is to be indorsed on the postea. Crawley v. Roberts, V. C. 1st March, 1815. Reg. Lib. A. 1814. fol. 584. For like direction. See 2 Turn. Pract. 181. Equity Draftsman, 631. NOTE. Is is the habit of the Court, in ordering an issue, to direct, that, if the substance of the issue is found, but with some special circumstances which may be material in measuring the extent of relief to be given on further directions, that matter should he indorsed on the postea. See White v. Lisle, 3 Swan. 345. No. VI. DECREE.-ISSUE DEVISAVIT VEL NON. His Lordship doth order, that the parties do proceed to a trial at law, at the sittings of the Court of King's Bench, in London, in the next term, or at such other time as the Lord Chief Justice of that Court shall appoint, upon the following issue, viz. devisavit vel non. And that the plaintiff Samuel Fenwick be plaintiff at law &c. [See No. I. ante.] And to the end the merits may come in question upon such trial, it is further ordered, that it be admitted (1) on both sides that the said Nathan James was seised in fee of the estate in question. And the plaintiff Samuel Fenwick and the defendant William James are to produce before the said Master, upon oath, all wills and drafts of wills that were at any time made by, or prepared for the said Nathan James, and all other deeds, papers, and writings &c. [See No. I. ante.] And his Lordship doth reserve the consideration of costs, and of all further directions, until after &c. [See No. I. ante.] the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Fenwick v. James, L. C. 29th January, 1748. Reg. Lib. A. 1747. fol. 193. NOTE. And any of (1) The Court will direct the parties to make such admissions as are necessary to raise the questions to be determined. Fenwick v. James, supra. No. VII. ORDER FOR ISSUE AS TO CLAUSE IN WILL. His Lordship doth order, that the parties do proceed to a trial at law at the next assizes to be holden for the county of Somerset, on the following issues: First, whether Thomas Horner, late of Mills Park, in the county of Somerset, Esq. deceased, did, in and by a certain paper writing, bearing date the 15th day of January, in the year of our Lord 1804, purporting to be a codicil to the last will and testament of the said Thomas Horner, devise in manner and form following, that is to say &c. (stating so much of the codicil as was not disputed): 2dly. Whether the said Thomas Horner having in and by his will, bearing date the 29th day of November, 1800, from and after &c. devised &c. did by his said codicil devise in manner and form following, that is to say &c. (stating so much of the codicil as was disputed.) And the defendant Thomas Strangways Horner is to be plaintiff at law &c. [See No. I. ante.] And his Lordship doth reserve the consideration of all further directions, and of the costs of this suit, until after the trial shall have been had. And any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Hippesley v. Horner, L. C. 12th May, 1804. Reg. Lib. A. 1803. fol. 1075. NOTE. See Earl of Newburgh v. Countess of Newburgh, 5 Mad. 364. No. VIII. DECREE ON FURTHER DIRECTIONS IN SAME CASE. His Lordship doth declare, that it appears by the finding of the jury, that the part of the codicil of the said testator Thomas Horner, whereby he expressed himself as follows &c. does not constitute the will of the said testator; and that the part of the codicil of the said testator Thomas Horner, whereby he expressed himself as follows &c. doth constitute the will of the said testator Thomas Horner; and that one part of the said codicil constituting, and another part thereof not constituting, the will of the said testator, this Court cannot order the same to be given up. But it being consonant to equity, that the parties should stand in such a situation as if the said codicil could be delivered up, this Court doth declare, that so much of the said codicil as does not constitute the will of the said testator, is void; and that the devise to the heirs of the body of the said testator Thomas Horner, contained in his said codicil, ought not to take effect; and doth decree the same accordingly; and doth also decree that the said defendant Thomas Strangways Horner be restrained from setting up any title at law to the several estates so devised to the heirs of the body of the said testator Thomas Horner, contained in the said codicil, and in question in these causes. Hippesley v. Horner, L. C. 17th May, 1805. Reg. Lib. A. 1804. fol. 1237. No. IX. ORDER FOR NEW TRIAL OF ISSUE. Whereas by an order made in this cause bearing date the 7th day of December, 1813, it was ordered that the parties should proceed to a trial at law &c. [See No. I. ante.] In pursuance of which order the parties proceeded to trial of the second issue mentioned in the said order, when the jury found a verdict for the plaintiff. And whereas Mr. D. &c. of counsel for the defendant Charles Dickenson, this day moved and offered divers reasons unto the Right Honourable &c. that a new trial might be had of the said issue, in the 'presence of Sir A. P. &c. of counsel for the plaintiff, Mr. W. of counsel for the defendants Thomas Watmore and James Watmore, who consented thereto. Whereupon and upon hearing an affidavit of R. C. &c. read, his Honour doth order that upon the defendant Charles Dickenson paying unto the plaintiff his costs of the former trial, to be taxed by Mr. A one &c. in |