dimus potestatem or commission to take his answer in the country, where. the commissioners administer him the usual oath; and then, the answer being sealed up, either of the commissioners carries it up to the court; or it is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it. An answer must be signed by counsel, and must either de

ny or confess all the material parts of the bill; or it may confess [448] and avoid, that is, justify or palliate the facts. If one of these is not, done, the answer may be excepted to for insufficiency, and the de. fendant be compelled to put in a more sufficient answer. A defendant cannot pray any thing in this his answer, but to be dismissed the court: if he has any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross-bill.

20

After answer put in, the plaintiff upon payment of costs may amend his bill, either by adding new parties, or new matter, or both, upon the new lights given him by the defendant; and the defendant is obliged to answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant's answer, whereby the cause is at issue; for afterwards, if new matter arises, which did not exist before, he must set it forth by a supplemental-bill. There may be also a bill of revivor when the suit is abated by the death of any of the parties; " in order to set the proceedings again in motion, without which they remain at a stand. And there is likewise a bill of interpleader; where a person who owes a debt or rent to one of the parties in suit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be safe in the payment. In this last case it is usual to order the money to be paid into court for the benefit of such of the parties, to whom upon hearing the court shall decree it to be due. But this depends upon circumstances; and the plaintiff must also annex an affidavit to his bill, swearing that he does not collude with either of the parties."

If the plaintiff finds sufficient matter confessed in the defendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defend.. ant's answer to be true, in every point. Otherwise the course is for the, plaintiff to reply generally to the answer, averring his bill to be true, cer

tain, and sufficient, and the defendant's answer to be directly the [449] reverse; which he is ready to prove as the court shall award: upon which the defendant rejoins, averring the like on his side; which is. joining issue upon the facts in dispute. To prove which facts is the next

concern.

24

This is done by examination of witnesses, and taking their depositions in writing, according to the manner of the civil law. And for that pur pose interrogatories are framed, or questions in writing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These interrogatories must be short and pertinent not leading ones; (as "did not you see this, or, did not you hear that?") for if they be such, the deposition taken thereon will be suppressed and not suffered to be

(20) Vid. Mitf. Pl 27 48. 58. 97.

(21) Vid Mitf. Pl. 28. 53. et seq.

(22) Id. 27. 39.

:

(23) And must bring the money if any is due) into court, or at least offer to do so by his bûl. Prac. Reg 59. Bunb. 303. Barnard. Ch. 250. Mitf. Pl. 40.

(24) Vid. Mitf. Pl. 259, 260, 1.

read. For the purpose of examining witnesses in or near London, there is an examiner's office appointed; but for such as live in the country, a commission to examine witnesses is usually granted to four commission. ers, two named of each side, or any three or two of them, to take the depositions there. And if the witnesses reside beyond sea, a commission may be had to examine them there upon their own oaths, and (if foreigners) upon the oath of skilful interpreters. And it hath been established (y) that the deposition of an heathen who believes in the Supreme Being, taken by commission in the most solemn manner according to the custom of his own country, may be read in evidence.

The commissioners are sworn to take the examinations truly and without partiality, and not to divulge them till published in the court of chancery; and their clerks are also sworn to secrecy. The witnesses are compellable by process of subpoena, as in the courts of common law, to ap. pear and submit to examination. And when their depositions are taken, they are transmitted to the court with the same care that the answer of a defendant is sent.

If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, [450] although no suit is depending; for, it may be, a man's antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity: and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he contests the will. This is what is usually meant by proving a will in chancery.

When 'all the witnesses are examined, then, and not before, the deposi tions may be published, by a rule to pass publication; 25 after which they are open for the inspection of all the parties, and copies may be taken of them.26 The cause is then ripe to be set down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the master of the rolls, according to the discretion of the clerk in court, regulated by the nature and importance of the suit, and the arrear of causes depending before each of them respectively. Concerning the authority of the master of the rolls to hear and determine causes, and his general power in the court of chancery, there were (not many years since) divers questions and disputes very warmly agitated; to quiet which it was declared by statute 3 Geo. II. c. 30. that all orders and decrees by him made, except such as by the course of the court were appropriated to the great seal alone, should be deemed to be valid; subject nevertheless to be discharged or altered by the lord chancellor, and so as they shall not be enrolled, till the same are signed by his lordship. Either party may be sub, poena'd, to hear judgment on the day so fixed for the hearing and then, if the plaintiff does not attend, his bill is dismissed with costs; [451]

y Omichund v. Barker. 1 Atk. 21.

(25) Or by consent, vid. Newl. Pr. 143.

(26) A decree cannot be made upon the deposition of one witness only, in contradiction to the defendant's answer. See ante, n. 5. p. 438.

or, if the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff's cost of attendance, and shews good cause to the contrary on a day appointed by the court. A plaintiff's bill may also at any time be dismissed for want of prosecution, which is in the nature of a nonsuit at law, if he suffers three terms to elapse without moving forward in the cause.

When there are cross causes, on a cross bill filed by the defendant against the plaintiff in the original cause, they are generally contrived to be brought on together, that the same hearing and the same decree may serve for both of them. The method of hearing causes in court is usually

this. The parties on both sides appearing by their counsel, the plaintiff's bill is first opened, or briefly abridged, and the defendant's answer also, by the junior counsel on each side: after which the plaintiff's leading counsel states the case and the matters in issue, and the points of equity arising therefrom: and then such depositions as are called for by the plaintiff are read by one of the six clerks, and the plaintiff may also read such part of the defendant's answer, as he thinks material or convenient; (2) and after this the rest of the counsel for the plaintiff make their observations and arguments. Then the defendant's counsel go through the same process for him, except that they may not read any part of his answer; and the counsel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in debate according to equity and good conscience; which decree being usually very long, the minutes of it are taken down, and read openly in court by the registrar." The matter of costs to be given to either party, is not here held to be a point of right, but merely discretionary (by the statute 17 Ric. II. c. 6.) according

to the circumstances of the case, as they appear more or less fa. [452] vourable to the party vanquished. And yet the statute 15 Hen.

VI. c. 4. seems expressly to direct, that as well damages as costs shall be given to the defendant, if wrongfully vexed in this court,

The chancellor's decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the defi. ciency of trial by written depositions, that it will not bind the parties there. by, but usually directs the matter to be tried by jury; 23 especially such im. portant facts as the validity of a will, or whether A is the heir at law to B, or the existence of a modus decimandi, or real and immemorial composi tion for tithes. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king's bench or at the assises, upon a feigned issue. For, (in order to bring it there, and have the point in dispute, and that only, put in issue,) an action is brought, wherein the plaintiff by a fiction declares that he laid a wager of 51. with the defendant, that A was heir at law to B; and then avers that he is so; and therefore demands the 51. The defendant admits the feigned wager, but avers that A is not the heir to B; and thereupon that issue is joined, which is directed out of chancery to be tried; and thus the verdict z On a trial at law if the plaintiff reads any part of the defendant's answer, be must read the whole of it: for by reading any of it be shews a reliance on the truth of the defendant's testimony, and makes the whole of his answer evidence,

(27) It is not now the practice for the registrar to read the minutes of the decree openly in court; but any party to the suit may procure a copy of them, and if there is any mistake, may move to have them amended. But after a decree has been drawn up and entered, no errors in it can be rectified on motion, or by any other proceeding than by rehearing the cause. Chitty. (28) As to trial of a matter of fact in equity, vide ante, note (a), p. 426.

of the jurors at law determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans : (a) and are also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading, and thereby to save much time and expense in the decision of a cause.

29

So likewise, if a question of mere law arises in the course of a cause, as whether by the words of a will an estate for life or in tail is created, or whether a future interest devised by a testator shall operate as a remainder or an executory devise, it is the practice of this court to [453] refer it to the opinion of the judges of the court of king's bench or common pleas, upon a case stated for that purpose; 30 wherein all the material facts are admitted, and the point of law is submitted to their decision: who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. And upon such certificate the decree is usually founded.

Another thing also retards the completion of decrees. Frequently long accounts are to be settled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always by the decree on the first hearing referred to a master in chancery to examine; which examinations frequently last for years: and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and over-ruled; or otherwise is confirmed, and made absolute, by order of the court.

31

When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made: the performance of which is enforced (if necessary) by commitment of the person, or sequestration of the party's estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor's decree, and must be signed by him before it is enrolled; (b) which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing, all the evidence [454] taken in the cause, whether read before or not, is now admitted to be read; because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which ■ Notu est sponsio judicialis: "spondesne quingentos si meus sit? spondeo si tuus sit. Et tu quoque pondesne quingentos, ni tuus sit? spondeo, ni meus sit." Vide Heinec. Antiquitat. 1. 3. t. 16. § 3. & Sigon. de judiciis. l. 21 p. 466. citat, ibid. b Stat. 3 Geo, II. c. 39. See P. 450.

(26) The consent of the court ought also to be previously obtained, for a trial of a feigned issue without such consent is a contempt, which will authorize the court to order the proceedings to be stayed. 4 T. R. 402.

(30) Formerly, when a case was heard before the master of the rolls sitting in his own court, on which he wished to have the opinion of a court of law, he directed an action to be commenced by the parties in a court of law in such a form, that the question on which he had a doubt might be decided in that suit, and he suspended his decree till the court of law had given its judgment. It appears that the first case sent from the rolls to the king's bench, is in 6 T. R. 313, where lord Kenyon says, "I believe that there is no instance in which this court ever certified their opinion on a case sent here from the master of the rolls. In Colson v. Colson it was refused; but I think it was an idle formality, and I shall feel no reluctance in certifying in such cases, because I think it is convenient to the suitors of that court." Chitty

(31) Vid. Newl. Pr. 186. et seq.

time all omissions of either evidence or argument may be supplied. (c) But, after the decree is once signed and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the house of lords.

A bill of review may be had upon apparent error in judgment, appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new mattter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review.

32

An appeal to parliament, that is to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said (d) to have begun in 18 Jac. I., and it is certain, that the first petition, which appears in the records of parliament, was preferred in that year; (e) and that the first which was heard and determined (though the name of appeal was then a novelty) was presented in a few months after; (f) both levelled against the lord chancellor Bacon for corruption and other misbehaviour. It was afterwards warmly controverted by the house of commons in the reign of Charles the Second.(g) But this dispute is now at rest: (h) it being obvious to the reason of all mankind, that, when the courts of equity became principal tribunals for decid

ing causes of property, a revision of their decrees (by way of appeal) [455] became equally necessary, as a writ of error from the judgment of a

court of law. And, upon the same principle, from decrees of the chancellor relating to the commissioners for the dissolution of chauntries, &c. under the statute 37 Hen. VIII. c. 4. (as well as for charitable uses under the statute 43 Eliz. c. 4.) an appeal to the king in parliament was always unquestionably allowed. (1) But no new evidence is admitted in the house of lords upon any account; this being a distinct jurisdiction: (k) which differs it very considerably from those instances, wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law (though constantly followed in the spiritual courts), when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below. And thus much for the general method of proceeding in the courts of equity.33

e Gilb. Rep. 181, 152.

• Lords' Journ. 23 Mar. 1620.

Com. Journ. 19 Nov. 1675, &e.
Duke's Charitable Uses, 62.

d Com. Journ. 18 Mar. 1704.

f Lords' Journ. 3. 11. 12 Dec. 1621.
h Show. Parl. C. 81.
k Gilb. Rep. 155, 156.

(32) A bill of review is only necessary when a decree is signed and enrolled. Mitf. Pl. 71. It cannot be brought after twenty years. Id. 69. 1 Bro. P. C. 95. 5 Bro. P. C. 460. 6 Bro. P. C. 395.

(33) See an excellent treatise on the "Powers of Chancery," by Tapping Reeve, appended to his work on the private relations; in which the powers and jurisdiction of that court, and its various modifications, are explained.

END OF BOOK III.