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both sides appearing by their counsel, the plaintiff's bills 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
*452] merely discretionary (by the statute 17 Ric. II. c. 6) according to the circumstances of the case, as they *appear more or less favourable 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 deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury; especially such important 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 composition 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 assizes, 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 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.is
So, likewise, if a question of mere law arises in the course of a cause, as *453] 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 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," wherein all the material facts are admitted, and the
•) On a trial at law, if the plaintiff reads any part of the defendant's answer, he must read the whole of it; for by reading any of it he shows a reliance on the truth of the defendant's testimony, and makes the whole of his answer evidence.
(4) Nota est sponsio judicialis: “spondesne quingentos si meus sit? spondeo si tuus sit. Et tu quoque spondesne quingentos, ni tuus sit! spondeo, ni meus sit.” Vide Heinec. Antiquitat. 1. 3, t. 16, 3, and Sigon. de judiciis, l. 21, p. 466, citat. ibid.
12 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.-CHRISTIAN.
13 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.-CHITTY.
14 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
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, encumbrances 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 overruled; or otherwise is confirmed, and made absolute, by order of the court.
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 causo is proper to be reheard. And upon the *rehearing, all the evidence taken in the cause, whether read before or not, is now admitted to be [*454 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 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 reviews 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 matter 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.
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
(*) Stat. 3 Geo. III. c. 39. See p. 450.
(e) Gilb. Rep. 151, 152.
(d) Com. Jour. 13 Mar. 1704.
() Lords' Jour. 23 Mar. 1620.
Ibid. 3, 11, 12 Dec. 1621.
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 vs. 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."-CHRISTIAN.
15 A bill of review is only necessary where 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.-CHITTY.
of all mankind, that, when the courts of equity became principal tribunals for *455] deciding causes of property, a revision of their *decrees (by way of appeal) 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.(i) 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.
() Duke's Charitable Umm, 52.
(*) anb. hep. 155 156
THE END OF THE THIRD BOOK
PROCEEDINGS ON A WRIT OF RIGHT PATENT.
SECT. 1. WRIT OF RIGHT PATENT IN THE COURT BARON.
GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to Willoughby, earl of Abingdon, greeting. We command you that without delay you hold full right to William Kent, Esquire, of one messuage and twenty acres of land, with the appurtenances, in Dorchester, which he claims to hold of you by the free service of one penny yearly in lieu of all services, of which Richard Allen deforces him. And unless you do so, let the sheriff of Oxfordshire do it, that we no longer hear complaint thereof for defect of right. WITNESS ourself at Westminster, the twentieth day of August, in the thirtieth year of our reign.
SECT. 2. WRIT OF TOLT, TO REMOVE IT INTO THE COUNTY COURT. CHARLES MORTON, Esquire, sheriff of Oxfordshire, to John Long, bailifferrant of our Lord the King and of myself, greeting. BECAUSE by the complaint of William Kent, Esquire, personally present at my county court, to wit, on Monday, the sixth day of September, in the thirtieth year of the reign of our Lord GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, at Oxford, in the shirehouse there holden, I am informed, that although he himself the writ of our said Lord the King of right patent directed to Willoughby, earl of Abingdon, for this that he should hold full right to the said William Kent, of one messuage and twenty acres of land, with the appurtenances, in Dorchester, within my said county, of which Richard Allen deforces him, hath brought to the said Willoughby, earl of Abingdon; yet for that the said Willoughby, earl of Abingdon, favoureth the said Richard Allen in this part, and hath hitherto delayed to do full right according to the exigence of the said writ, I command you on the part of our said Lord the King, firmly enjoining that in your proper person you go to the courtbaron of the said Willoughby, earl of Abingdon, at Dorchester aforesaid, and take away the plaint which there is between the said William Kent and Richard Allen by the said writ into my county court to be next holden; and summon by good summoners the said Richard Allen that he be at my county court, on Monday, the fourth day of October next coming, at Oxford, in the shirehouse there to be holden, to answer to the said William Kent thereof. And have you there then the said plaint, the summoners, and this precept. GIVEN in my county court, at Oxford, in the shirehouse, the sixth day of September, in the year aforesaid.
SECT. 3. WRIT OF PONE, TO REMOVE IT INTO THE COURT OF COMMON PLEAS.
GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. PUT at the request of William Kent, before our justices at Westminster, on the morrow of All Souls, the plaint which is in your county court by our writ of right, between the said William Kent, demandant, and Richard Allen, tenant, of one messuage and twenty acres of land, with the appurtenances, in Dorchester: and summon by good summoners
the said Richard Allen, that he be then there to answer to the said William Kent thereof. And have you there the summoners and this writ. WITNESS ourself at Westminster, the tenth day of September, in the thirtieth year of our reign.
SEC. 4. WRIT OF RIGHT, quia Dominus remisit Curiam.
GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. COMMAND Richard Allen, that he justly and without delay render unto William Kent one messuage and twenty acres of land, with the appurtenances, in Dorchester, which he claims to be his right and inheritance, and whereupon he complains that the aforesaid Richard unjustly deforces him. And unless he shall do so, and *if the said William shall give you security of prosecuting his claim, then summon by good sum moners the said Richard, that he appear before our justices at Westminster, on the morrow of All Souls, to show wherefore he hath not done it. And have you there the summoners and this writ. WITNESS Ourself at Westminster, the twentieth day of August, in the thirtieth year of our reign. Because Willoughby, earl of Abingdon, the chief lord of that fee, hath thereupon remised unto us his court.
Pledges of JOHN DOE.
Summoners of the
SECT. 5. THE RECORD, WITH THE AWARD OF BATTEL.1
PLEAS at Westminster before Sir John Willes, Knight, and his brethren, Justices of the Bench of the Lord the King at Westminster, of the term of Saint Michael, in the thirtieth year of the reign of the Lord GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, &c.
} WILLIAM KENT, Esquire, by James Parker, his attorney, de
to wit. mands against Richard Allen, gentleman, one messuage and twenty acres of land, with the appurtenances, in Dorchester, as his right Dominus remisit and inheritance, by writ of the Lord the King of right, because Willoughby, earl of Abingdon, the chief lord of that fee, hath now thereupon remised to the Lord the King his court. AND WHEREUPON he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in the time of peace, in the time of the Lord GEORGE the First, late King of Great Britain, by taking the esplees thereof to the value' [of ten shillings, and more, in rents, corn, and grass.] And that such is his right he offers [suit and good proof.] AND the said Richard Allen, by Peter Jones his attorney, comes and defends the right of the said William Kent, and his seisin, when [and where it shall behoove him,] and all [that concerns it,] and whatsoever [he ought to defend] and chiefly the tenements aforesaid, with the appurtenances, as of fee and right, [namely, one messuage and twenty acres of land, with appurtenances Wager of battel. in Dorchester.] AND this he is ready to defend by the body of his freeman, George Rumbold by name, who is present here in court, ready to defend the same by his body, or in what manner soever the court of the Lord the King shall consider that he ought to defend. *And if any mischance should befall the said George, (which God defend,) he is ready to defend the same by another man, who [is bounden and able to defend it.] AND the said William Kent saith, that the said Richard Allen unjustly defends the right of him the said William, and his seisin, &c., and all, &c., and whatsoever, &c., and chiefly of the tenements aforesaid, with the appurtenances, as of fee and right, &c.: because he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in the time of peace, in the time of the said Lord GEORGE the First, late King of Great Britain, by taking the esplees thereof to the value, &c belmoer of battel. AND that such is his right he is prepared to prove by the body of his freeman, Henry Broughton by name, who is present here in court ready to prove the same by his body, or in what manner soever the court of the Lord the King shall consider that he ought to prove; and if any mischance should befall the said Henry, (which God defend,) he is ready to prove the
1 As to battel, see page 337, n. 7.
N.B.-The clauses between hooks in this and the sul sequent numbers of the Appendix are usually ne otherwise expressed in the record than by an "&c."