Sivut kuvina

It were much to be wished, for the sake of certainty, peace, and justice, that each court would as far as possible follow the other, in the best and most effectual rules for attaining those desirable ends. It is a maxim that equity follows the law; and in former days the law had not scrupled to follow even that equity which was laid down by the clerical chancellors. Every one who is conversant in our antient books, knows that many valuable improvements in the state of our tenures (especially in leaseholds (q) and copyholds)(r) and the forms of administering justice,(s) have arisen from this single reason, that the same thing was constantly effected by means of a subpœna in the chancery. And sure there cannot be a greater solecism, than that in two sovereign independent courts established in the same country, exercising concurrent jurisdiction, and over the same subject-matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other.

It would carry me beyond the bounds of my present purpose to go further into this matter. I have been tempted to go so far, because strangers are apt to be confounded by nominal distinctions, and the loose unguarded expressions to be met with in the best of our writers; and thence to form erroneous ideas of the separate jurisdictions now existing in England, but which never were separated in any other country in the universe. It hath also afforded me an opportunity to vindicate, on the one hand, the justice of our *courts of law from being that harsh and illiberal rule, which many are too ready [*442 to suppose it; and, on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects, amends, and controls it by the loose and fluctuating dictates of the conscience of a single judge. It is now high time to proceed to the practice of our courts of equity, thus explained, and thus understood."

The first commencement of a suit in chancery is by preferring a bill to the lord chancellor, in the style of a petition; "humbly complaining showeth to your lordship your orator A B, that," &c. This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts: setting forth the circumstances of the case at length, as, some fraud, trust, or hardship; "in tender consideration whereof," (which is the usual language of the bill,) "and for that your orator is wholly without remedy at the common law," relief is therefore prayed at the chancellor's hands, and also process of subpœna against the defendant, to compel him to answer upon oath to all the matter charged in the bill. And, if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed, in the nature of an interdictum by the civil law, commanding the defendant to cease.

This bill must call all necessary parties, however remotely concerned in interest, before the court; otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain matter either scandalous or impertinent: if it does, the defendant may refuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; of whom there are in number twelve, including the master of the rolls, all of whom, so late as the reign of queen Elizabeth, were commonly doctors of the civil law. (s) The master is to examine the propriety of the bill: [*443 and if he reports it scandalous or impertinent, such matter must be struck out, and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill.

When the bill is filed in the office of the six cierks, (who originally were all in orders; and therefore, when the constitution of the court began to alter, a law(t) was made to permit them to marry,) when, I say, the bill is thus tiled,

(9) Gilb. of Ejectment, 2. 2 Bac. Abr. 160.

() Bro. Abr. tit. tenant per copie. 10 Litt. 77. () See page 200.

() Smith's Commonw. b. ii. c. 12
() Stat. 14 & 15 Hen. VIII. c. 8.

Very important alterations have been made in the whole process and proceedings in chancery by the statute 15 & 16 Vict. c. 86.-SHARSWOOD.

if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case. If the bill be to stay execution. upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an injunction will issue of course; and, when the answer comes in, the injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately, to continue till the defendant has put in his answer, and till the court shall make some further order concerning it: and when the answer comes in, whether it shall then be dissolved or continued till the hearing of the cause, is determined by the court upon argument, drawn from considering the answer and affidavit together.

But, upon common bills, as soon as they are filed, process of subpœna is taken out which is a writ commanding the defendant to appear and answer to the bill, on pain of 100l. But this is not all; for if the defendant, on service of the subpana, does not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill, he is then said to be in contempt; and the respective processes of contempt are in successive order awarded against him. The first of which is an attachment, which is a writ *in the nature of a *444] capias, directed to the sheriff, and commanding him to attach, or take

up, the defendant, and bring him into court. If the sheriff roturns that the defendant is non est inventus, then an attachment with proclamations issues; which, besides the ordinary form of attachment, directs the sheriff, that he cause public proclamations to be made, throughout the county, to summon the defendant, upon his allegiance, personally to appear and answer. If this be also returned with a non est inventus, and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the king's proclamations according to his allegiance; and four commissioners therein named, or any of them, are ordered to attach him wheresoever he may be found in Great Britain, as a rebel and contemner of the king's laws and government, by refusing to attend his sovereign when thereunto required: since, as was before observed, (u) matters of equity were originally determined by the king in person, assisted by his council; though that business is now devolved upon his chancellor. If upon this commission of rebellion a non est inventus is returned, the court then sends a serjeant-at-arms in quest of him; and if he eludes the search of the serjeant also, then a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the order of the court. Sequestrations were first introduced by Sir Nicholas Bacon, lord keeper in the reign of queen Elizabeth; before which the court found some difficulty in enforcing its process and decrees.(v) After an order for a sequestration issued, the plaintiff's bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the performance of the decree. Thus much if the defendant absconds.

If the defendant is taken upon any of this process, he is to be committed to the Fleet or other prison till he puts in his appearance or answer, or per*445] forms whatever else this *process is issued to enforce, and also clears his contempts by paying the costs which the plaintiff has incurred thereby. For the same kind of process (which was also the process of the court of star-chamber till its dissolution)(w) is issued out in all sorts of contempts during the progress of the cause if the parties in any point refuse or neglect to obey the order of the court.

(") Page 50.

() 1 Vern. 421.

() 18 Rym. Fod. 195.

'An injunction in the court of exchequer stays all further proceedings, in whatever stage the cause may be; but in chancery, if a declaration be delivered, the party may proceed to judgment notwithstanding an injunction, and execution is only stayed; but if no declaration has been delivered, all proceedings at law are restrained. 3 Woodd. 411 CHRISTIAN.

The process against a body corporate is by distringas, tc distrain them. by their goods and chattels, rents and profits, till they shall obey the summons o directions of the court. And if a peer is a defendant, the lord chancellor sends & letter missive to him to request his appearance, together with a copy of the bill; and if he neglects to appear, then he may be served with a subpoena; and if he continues still in contempt, a sequestration issues out immediately against bis lands and goods, without any of the mesne process of attachments, &c., which are directed only against the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the house of commons, except only that the lord chancellor sends him no letter missive.

The ordinary process before mentioned cannot be sued out till after the service of the subpoena, for then the contempt begins; otherwise he is not prosumed to have notice of the bill; and therefore by absconding to avoid the subpoena a defendant might have eluded justice, till the statute 5 Geo. II. c. 25, which enacts that where the defendant cannot be found to be served with process of subpoena, and absconds (as is believed) to avoid being served therewith, a day shall be appointed him to appear to the bill of the plaintiff, which is to be inserted in the London gazette, read in the parish church where the defendant last lived, and fixed up at the royal exchange; and, if the defendant doth not appear upon that day, the bill shall be taken pro confesso.

But if the defendant appears regularly, and takes a copy of the bill, he is next to demur, plead, or answer.

*A demurrer in equity is nearly of the same nature as a demurrer in law, being an appeal to the judgment of the court, whether the defend[*446 ant shall be bound to answer the plaintiff's bill; as for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; or where the bill seeks a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour. For any of these causes a defendant may demur to the bill. And if, on demurrer, the defendant prevails, the plaintiff's bill shall be dismissed: if the demurrer be overruled, the defendant is ordered to answer."


A plea may be either to the jurisdiction, showing that the court has no cognizance of the cause, or to the person, showing some disability in the plaintiff, as by outlawry, excommunication, and the like: or it is in bar; showing some matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and answer to the residue. But no exceptions to formal minutiæ in the pleadings will be here allowed; for the parties are at liberty, on the discovery of any errors in form, to amend them.(x)

An answer is the most usual defence that is made to a plaintiff's bill. It is given in upon oath, or the honour of a peer or peeress: but where there are amicable defendants, their answer is usually taken without oath, by consent of the plaintiff. This method of proceeding is taken from the ecclesiastical courts, like the rest of the practice in chancery; for there, in almost every case, the plaintiff may demand the *oath of his adversary in supply of proof. Formerly this was done in those courts with compurgators, in the man- [*447

ner of our waging of law; but this has been long disused; and instead of it the present kind of purgation, by the single oath of the party himself, was introduced. This oath was made use of in the spiritual courts, as well in criminal cases of ecclesiastical cognizance as in matters of civil right; and it was then usually denominated the oath ex officio: whereof the high commission court in (*) En cest court de chauncerie, home ne serra prejudice ar som mispledging ou pur defaut de forme, mes solonque veryte del mater, car il doit agarder solonque consciens, et

nemi ex rigore juris. Dyversyté des courtes, edit. 1534, fol 296, 297. Bro. Abr. tit. Jurisdiction, 50.

10 If a demurrer be overruled, the defendant may at the hearing demur ore tenus, though not where he pleads to the bill. 1 Sim. & Stu. 227; et vid. Mitf. Pl, 178, et seq.CHITTY.

particular made a most extravagant and illegal use; forming a court of inqui sition, in which all persons were obliged to answer in cases of bare suspicion, if the commissioners thought proper to proceed against them ex officio for any supposed ecclesiastical enormities. But when the high commission court was abolished by statute 16 Car. I. c. 11, this oath ex officio was abolished with it; and it is also enacted, by statute 13 Car. II. st. 1, c. 12, "that it shall not be lawful for any bishop or ecclesiastical judge to tender to any person the oath ex officio, or any other oath, whereby the party may be charged or compelled to confess, accuse, or purge himself of any criminal matter." But this does not extend to oaths in a civil suit; and therefore it is still the practice, both in the spiritual courts and in equity, to demand the personal answer of the party him. self upon oath. Yet if in the bill any question be put that tends to the discovery of any crime, the defendant may thereupon demur, as was before cbserved, and may refuse to answer.

If the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court: if farther off, there may be a dedimus 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 one 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 deny or confess all the *material

*448] parts of the bill; or it may confess 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 defendant 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.

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 defendant'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, certain, and sufficient, and the *449] defendant's answer to be *directly the 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.

This is done by examination of witnesses, and taking their depositions in writing, according to the manner of the civil law. And for that purpose interrogatories are framed, or questions in writing; which, and which only, are to oe

"And must bring the money (if any is due) into court, or at least offer to do so by his Prac. Reg. 39. Punb. 303. Bergard. Ch 250. Mitf. Pl. 40.--CHITTY.


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 depositions taken thereon will be suppressed and not suffered to be 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 commissioners, 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 oaths of skilful interpreters. And it hath been established (y) that the deposition of a 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 subpœna, as in the courts of common law, to appear 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 [*450 to file a bill to perpetuate the testimony of those witnesses, 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 depositions may be published, by a rule to pass publication; after which they are open for the inspection of all the parties, and copies may be taken of them. 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 [*451 party may be subpænæd 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; 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 shows 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 non-suit at law, if he suffers three terms to elapse without movin forward in the cause.

When there are cross-causes, on a cross-bill filled 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

(nichund vs. Barker, 1 Atk. 21.

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