#### Mourning vs. Davis.

'jpHIS cause came on to be heard, on bill, answer, and áeposh •*- tions, without a jury, which was dispensed with by con» sent.

Haywood, for the complainant,

offered the evidence of a witness then present, and prayed that he might be sworn; this was objected to, and it was said that Judge Johnston at last Wilmington court, would not receive such testimony offered by Haywood, in the case of Walker and Ashe, It was answered, it was true judge Johnston would not receive St, nor recognise the practice us stated by the counsel offering it | which was, that witness may be summoned to give testimony in equity, as well as at law; but that, the party summoning, him, must pay the costs of his attendance. It is equally true, however, that in the case of Blount and Stanley,, in this court, a witntss was offered and objected to by Haywood, and that Judge Johnsto7i did receive him, and founded his decree upon that testimony.

Taylor, judge,

I will not alter the practice, and the witness must be sworn, but I can perceive that cases may happen, where its reception vviil be attended with inconvenience; as where a witness ts produced, to swear to a material fact, which had n< >t, beee, sworn to before, the other party is taken by surprise ; and per--haps had he been apprized in time, he would have- disproved its or discredited the witness.

The evidence was received, and a.decree founded.upon ifc,