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TORONTO: PRINTED AT THE PATRIOT OFFICE. 1837 It is not the intention of the Writer, in the following Pages, to do more than give a mere sketch of the leading branch of the jurisdiction of a Court of Equity in England as applicable to this Province, with an enumeration of the variouE, Bills by which its interposition may be sought for specific relief in nidividual cases, accompanied by such practical directions for the commencement, progress, and termination of a Suit, as might aid the Provincial Prac- titioner to whom such proceedings must be entirely novel. To have attempted more would have involved the Writer in a task which he was neither willing nor able to under- take. Nor, indeed, is it at all necessary, for the Solicitor, by consulting the Books of authority upon the principles and practice of the Court of Chancery in England, to which the following Pages refer, will find abundant information to guide him in the various steps of a Cause. The present attempt is confessedly imperfect, but if it be found in any degree useful to the Profession, the Writer will have at- tained his end. Several forms of the ordinary proceedingc of the Court might, and some persons may think, ought to have been supplied; but as such forms would not have superseded the necessity of the Profession procuring a^ Book of Practice containing all the usual formularies of the Court of Chancery in England, it was thought unneces- sary to append any of them to the present publication. Toronto^ August, 1837. he se ra C« d( h< b( ol ai fe ti tc if tt P o b a C tl 1 INTRODUCTORY OBSERVATIONS. The Court of Chancery may be considered as compre- hending four distinct jurisdictions; viz., 1 The ordinary or Common Law jurisdiction. 2. The extraordinary or equitable jurisdiction. 3. The statutory jurisdiction. 4. The specially delegated jurisdiction. In the following brief outline it is proposed to treat of the second only of these several branches of jurisdiction ; namely, the extraordinary or equitable jurisdiction of the Court ; inasmuch as by far the greater number of cases demanding its interposition will be embraced under that A Suit to the extraordinary jurisdiction of the Court, on behalf of a subject merely, unconnected with any interest of the Crown, or of its prerogative, or of those whose rights are under its especial protection, is commenced by pre- ferring, commonly termed filing a Bill, which is in the na- ture of a declaration at Common Law, by way of petition to the person or persons for the time being holding the great seal, or to the King himself in his Court of Chancery, if the person holding the seal be a party, or the seal is in the King's hands. As regards this Province, the Act ot Parliament,? VVm. IV. c.2, s. 1, constituting the Governor or person administering the government of it, Chancellor, but directing his judicial powers to be exercised by a Vice Chancellor, all Bills and other proceedings in the Court must be addressed to the latter. The purposes for which Bills are brought are very van. ous, but it is conceived they may be classified under the three following general heads ; viz., 1. Original Bills. IL Bills not Original. III. Bills in the nature of Original Bills. (6) Of Original Dith. These BilU are twofold :— yim praying nliej- Uills not P'-»)'".'g ;7,^|-„, „,„ally frnmed are The formal p^rtsM a,. "^^ »'^ '."^ Uep/oper autho- ''^fT'^'he MoLoui^We Robert S.Hv^em., Vic, Chancel- .. ^£?^V^ ^^e..th unt. ,0.. H««our. 3. The general charge of co«A«aga;"-; j P« &„. complai-.ed of, «^«'r""'''"^.,7edh" adverse Bills only, This charge, which .s r.o"l>'"e'l "' adver U usuallyillowed hy anauegat^n^^^^^^^^ ^ ^^^^^^ ^ori^ttai:^-7b-ra^ This. CO.- monly termed, • ^ .. jj-j, ^ j cotf>menc.es 4. The charging j?""-',,*" ^"^ "'"' .V Sorne times {"■f;"''^lf' j,i„iended lo -?.\^6jurisdicum t6 5 This part of 'he B.U .s mtendea^ ^ J J^ e6t«plair.ed :ii: t:l\trnS>n m1 tt co.side.tio,., attd forasmuch as," &c. ;^>.^,va. iini'f of the BiU, artA 6. This is callfed Vhe_««Wo|to| ^art ^t Uie t> ^^^ is a repetition by ^^X \"*"^f^e7endant. "^helhirlbe essential to be ^"^l^'^^j^l^Z ^^^ZZ abottt,'' &ft. ""1 The conclusion, praying ttet Vl'^x^^ss in^ be issued »g!^r'^^''.Pff!"^*':iU nf the Bitt, tod tU« *»«»«-, are 1 1 'd are iutho- l their ancel- bnour, tncally 8 on]y, fendant chargfe is corh- imettcies lictitiT/t tb iplaitied pUinant, Bis'tancfe. ion, a^tl BiU, attA ers most elh6r tbe :jg teUef ; be issued I'a^tfr? are (7) eenerally rpnsidered to try tlie skill of the Equity flrader Siorc than the other parte-^ie one in s.ll.ng the conscienoe qf ftO evasive Defena«nt| and the other in prnjnig tlip full ana precise .necies pf relief to wh.ch the l>h»nU.ff.s en- titled- for it IS to be observed that the Court never ex- cppds' thp relief pra]rea, though it frequently j^w.rcs e^s, ^na refuses to administer a relief diHernig m kina from that spMgl^t l^y tiie Bill. Of Opgiml Bills praying Relief, These may be divided as follows :— 1 Bills praying the Decree or Order of the Court, tquch- ing'some right claimed by the Plaintii!; as opposed to some ri|ht claimed by the Defendant. II. Bills of Interpleader. III. Certiorari 3ilN, , , i r i, • ^.u^rin The first division comprehends the foUowmg descrip- tions of Bills; namely, „«. ^„„ 1. Bills to set aside fra»^ pleat, or r/^PMfy ^"^P.-^^Pf /5" veyanees. 2. Creditors Btlh for administering ^ F^^t^tpr^ Estate. .^ Bills by /.^A'«'m. 4- Bills bv Jnlants. |. B « by eesttd am trusts ag^in»t Executors or Trustees b. pm by Executors or Trustee.. 7. Bills to cprnpe the sp^ctfy plr/ormauce of Agreements. 3. Bills of ForeplosHrfr 9. "Bills to redeem 10. Bilb for a ;?flr(i/W of ^?^^^^^^ 11. Bills for Dower. 12. Injunption BilJe. IP- pM>^ ?' Peace, to prevent a mnUiplicity of Smts. 14. Bilj^ gmq timet, which are brought for examplc^hep Legacies pj Mortgage Monies are bequeathed payable at a distant pe- riod; in which case, should the Legatee be apprehensive of the solvency of the Executor, the latter may be cal|p4 upon by a Bill of Ibis natiure to set opart ^ s^m tor tbo^^ purposes. 15. Bill* for delivering up pr sepur^pg Deeds f or for delivering vp specific chattels. 16. Biljs to piarsfiq^ securities, which are brought in cases like the following :-rr If a party have two funds by which his debt is secured, a person, having an interest in one of those funds only, has a right to cprppel the former to resort to the other fund, it that l?e necessary for the satisfaction of the demands of b^otb parities. Ai).d '^stly, gills for arp accpunt, in which matter % GmH of JEquitf ha§ ^ concurrent ^m^dichon with a (8) . ,u„t the latter Court cannot Defenaaut, for tl e 8?''«''5' ° -.(e intcrcBts claim a 'Jc"' "f 'hl^parries lUisant .t belongs. ^j^^,,;^ ,,ieh llldly, BilU praying ^''^ ^J^^'J.^o^ auinfcrior Court being the mode of removing » ^»" f^^v,,e to this I'rov.nce, Hd4tXe^STt: me'reirfor the saUo of arrange- Of Onginat BUU not praying Rdief- rill Kills to perpetuate the These Bills are threefoW ••--'• « i,J„„cc, where a tJimony of Witnesses. ^■''''^''f''^'.;erial evidence by the *pt t^is Ukely to be d«l>"y''^j/,f*2' Bills to perpetuate Seath or absence of his Witnesses. ^.^,_^^ ^^ „^y, the testimony of Wit"e^««; /° ^^'"'Jticular „ecessity a neglect, or in the absence of any P ^^ ^^^^^ ^,,j ^ je- Will has not been P^^'f °\fi,e in i"Ser on »l'ataccoun • v^see oflands •=<"«'«;"'" I'^Jirrighls, by proving the V « This Bill lies to establish his rigi i '.J^^- ^t law of the T^*.^land.heDefendant.n.t s bel ^^ ,, i.eum- ^eslator, either nm.cably o adve^^^^ «hich are stances may require. Jj^?.^ ;„ «ome other Court by brought usually to aid P^^f Tfendant is cognizaiil, but power. Of Bilk not Original A Suit imperfect in its ^--f ' ;',^;;rs'es:°b^e^Tn'dered before its terminaUon. -^,•rno':!however considered ^a:r:rig'i-rB;ii:b«t merely as an addutoa to .....-- annot •ftying right, \oi\\\e ample, ebt or [lich of w hich r Court •oviiice, rrange- uale the where a e by the rpetuate r tlirough cessity, a and a ile- taccourit. r the Will 'aw of the le circum- tvhich are •Court, by [lizant, but 1 oath, as [o discover custody or by accident )e rendered . considered ance of the former Bill, or both. This deecription of BilU mav be divided into three classes :— ^ ^ ,, v 1. Supplemental Bills, wliieh are occasioned by the dis- covery pf new waiter arisen imcc the original Bill .^nd Answer, and other pioceedings in the Cause ; and its ob- iect is to supply the defects of former proceedings wheij too late to be amended. In such cases a Bupplemental Bill may be filed of course, as a distii c Bill, reciting briefly the f<;>rmer proceedings, and then the new "' t*^BiUs or Revivor, the object of which Bills is to revive Suits and all proceedings thereon abated. 1 hey con- tinue the original Bill when, by death, or other circumf 8tanceB,9ome parties to the original Sujt have become in- capable of prosecuting or defending it. When, however the abatement occurs by death of parties, it must be of such as were so fir matenally concerned in interest as to make it nficesaary to have their representatives heiove the Court be. fore the Cau8,e can be finally determined. 3. Bills of /?mDor and Supplement, which »re merely ^a compound of the two former kinds of Bills, upon which in thpir separate parts, they ar^ framed. A Suit b^ing abated hy any event other than the immediate cause of abatement, the riffhts of the parties are affected, so that to bring tht 1/vhole before the Court a Supplemental Bill muet he added Jp tli^ Bill of Revivor. So, if ^ny. other cause of abatenient is accompanied by any matter which ought to be stated to the Court to Bhaw the righls of the parties, and, conse- quently, to obtain the full benefit of the Suit, that matter Diyat he set forth by n^y of Supplemental Bill added to the Bill jof Revivor. Bedesd. Tr. PI. OfBifU in the wUmt ofQrigmal Bills. BWh for the purpotSQS of crpss-Jitigati^n of isaattcrs ajready depending before the gourt—of controverting, suspending, avoiding pr carrying into execia,tion, the judg- ment pft^e Court, pr of ojiiaining the bienefit of a Suit tq Yfj^ch t,he iPi^mtiff js i^ot Jgptitled to 9^^d to or contjpae for tJtie p^ppe^e of supply mg.w'cjefects in it, h^ve been generally considered as felling under the denomination of J-. • re ( 10 ) . • . 7 i?,7/o thouffli occasioned by They -/of eight Ui^B^ V.-; ^^^.e „ fter an A«^ 1. Cro,^ Bills, ^n'^' 7h9 original Bill, or b^lore a De- swer has been T"' ", however, must be answered befor. cree; the original Bill.no^^^' > , ^ bhi. an Answer can be >-;!?J^ ^y be preferred after a Cause 2. Bills of ^«»«'*' J; '^j\'"-*^^^ and enrolled, coniplam- is heard, and theOf^^^^'Sue appearing in the body ing of some error in '^^'^I 'J^'f^^^^ fitter is discovered n%iUs in nature of a BiU ^^Z^' J^^:::^:Z is made against -P'^J^Lh an interest as was sufficient matter m dispute, or not f'^n • u:„(iine upon some per- o ender the R^^^^-gf ^^ >'Tar interit,'^relief may be son claiming the same »r,L' Decree by a Bill of this <' 5- obtained »gf -?f' -"°;;;"fi ed ^St leave of the Cou . cription, and it may ^e fi>«'^;;';' ° j „j fraud. I Biltsimpeachvig Decrees o^mg;J^ p 5. Bills to '"^^."'fhirhnre allowed under special cir- sigmdand enrolled, ^vh.ch are ai o ^ ^^^^ ^^. foreclosure, oamstances.; as f"' f f.^i'g-,,-, j.^s enlarged the lime for „here the ^^•'"'''"fj^ecleefe Mortgagor having been performance »' ''>^,^,^,"^^^^^ Mortgagee to sioned by the "^g'«''=' ^^ Pfu^'' i Impossible to carry a i^-So-tS^nn^ilout-fhe furtLr Decree of the ^TU in IH, nature ^^IS^ I'lK.t a^ R party, whose interest is no ^'^r^f-^teJest, that the title tended with such a {,onsm«3iO» of his . uteres., .^^ oU, as well «» th'' P^^'^^Hhe'^c^se /f a De^L. the ^.^f^l :LStTbrco„ttea by a Bill of Revivor. _— — — Qiii' U il tied by PL 35. an An* i a De- l before a Cause iniplain- lie body covered the De- L Decree t in the suflicicnl ome per- f may be ' this r B- Cou . f Decrees ecial cir- reclosure, R time for zing been •tgagee to pparently are occa- and some- to carry a rce of the le death of leath, is at- lat the title litigated in Devise, the of Revivor, (11) An nn,r\nal Bill, upoti which the title may be litigated.must An Uriginai oiu,"V . j. ^ j^g effect of a be filed ; and "",^ ''.'".f" '//"ile of the representative ^'lIn„te';rrv%heco\V deceased par^y be esta- substituted by tne di.<. . j proceedings bhehed, the ^^^^.^^^fA^e^s'^^u had be«" """l"'""*! ^^ upon the (ormer bill, as "ftlehu.tna ^^^ ^^ »hiii:rKways >. - l^/^.^^ Wwritlng-the writing to be on one ^»^^^j^^^^^ rough by ebiinsel, ^hich is "dis^ensable-U la si^cnent ho ^.^ , his Saft have been signed by Cj^^f ^7,^,^10^ fSm Tt»^e fair co?y onc6 pame may be subscribed by the Solicitor, roiu ^ lengthwise, and endorse it thus :— In Chanceify, A. B. p V. > CD.) . .^^ And at t^e bbtlbni add the Solkitor^^ !; j^. t^l^^^w" wS? 2*. m^ *^.^stpt"arD'^ltpt^^ suit of A. B." rS6llcit6t»8 rifctnte* and the date.} Orfe, II. .r .h, C«u«, directing UaWr^^^^^^^ wswet sMll be .«pd out for each P^'«^,f "'-^''^Xare l-recipe i» Ihe band and wife, Defendanl^^-there OTst be « scpara. J^^^^^^ poena. . As to^hen and under whatcircumstances the Court wul permit a bill to be amended, see 1 Grant's Chancery f rac- tice.vol. l.ch. xiv. ( 13 > letances cific niJ." )urt, and ee forms leythuy- mch bill, le with thri &c. . t and legible -and signed if thp rough ir copy— hi* r copy oncd Ittlce. f ak6 ippearance of appearance of the Defendant. The first step is to compel the appeararice of the Defeti- dant. The Defendant's appearance is compelled by the ser- Tice of the Subpoena, [^s to the mode of service and what the Court will deem good service^ see 1 GranV^ C. P,, p. 78^ ct seq^] By the 1st order of the Court, if the Defendant reside within the Home District, he must appear within eight days after the service of the Subpofena, and if in any other District, within fourteen days after fetich service. PllACTICAt, DIRECTIONS. The Defendant's Solicitor must ihSl^uct the Reglstfir to en tei" an ap- pearance for the Defendant, by a nolte in tho following form :-^ f *' In Chancery. , 1 *' Enter an appearance for C. D. at the suit of A. B." I (Solicitbr^s riame and datfe.J I «» To Wm. Hepburn, Esq.^ Rpgistrar." Pay the Registrar 2*. 6d. for fih'ng the note and catering the appearancei As to defendants of infirm mind, idiots or lunatic, vide 1 Grant's C. P., vol. 1, p. 110, et seq.f and the course of pro(:efed{ng thferfe detailed. Should the Defendant not appear within the time prc- gcribed by the Subpoena, he will be subject to the severdl processes for compelling appearance, which are termed Processes of Contempt; viz,, Attachment, Attachment with Proclamations, Commission of Rebellion, Serjeant at Arms, Sequestration, Habeas Corpus, Distringas; and in ultimate default in appearance taking the bill pro confesso as to which proceedings. Vide ibid, vol. 1^ chap; xvii^ xviii, xix, xx, xxi, xxii, xxiii, and xxiv. See atlso as to contempts iri general, ibid, vol. 1, chap. xxv. ' HefendanVs %Ansiver, The Defendant having appeared, niust then atiSWer (be bill filed against him. As to the general nature of an Answer, and the points to be attended to in framing it, the Solicitor is referred to 1 Grant C. P., vol. 1, chap, xxviiij and to the forms in Van Heythuysen's Equity Draftsman. ( lO PRACTICAL «>i'^^c'^»X!; eony of ibo Bill from iho Registrar-pay him 6a pe » ^^^ ^^^^.^ ^^^f/e'e^t to the Bill, v^hich signing by ^°""^;i' 'tfore i^en at p. V^ ^'^ siS by and sworn to observe the d^'f ^'°"^ ^' ^he Answer; it must be « «"J^ ^^ fendant reside are equally appbcabje o the ^^j^^^,, .^ Ordmary, Uhe Vj^ ^ ,j hv the Delendant belore " . ^^y miles thereoi , m ^ ^^^ S.he Ci.y of To"7,-,:'d: ^ Im live "eyond . o.e l,m.«. ^^ ^^ . rrnfalities — tfer^^il^Court 1} ^t^thf De"^^^^ T out in the ^XIV ^^° ^ within eight days alter in .^ ^^j^^^ gistrar according to Order l. ^^^.^^^ .^^ ^^^^ ^^"^oks in either case the Jearance where t^^ ^ef^"\f^,, his aPP'^^'^"""' "^l aPpHcation made for rr,:KScrto .>n^^^^^^ n^t step * ATte the Defendant has filed 1^ Ans™ , .^ 1 I I fe-. ft-- Answer \viiu"» 1""' ^^T": . - „ ^«r,th it ne rcsmc n. "-v Home District, and «.th.n ?• « ^^ ^,^,^l,„d if the excep- tie other Districts-[K«de O-^^.'^^'Vefendant the Pla.nt.ff tions are not submitted to b/ the ^J ^^^^ Exceptions mav after the exp.rat.on of cgW cay ;„„ Causes, Te'deUvered but -t soon-^? tsuttic'iency «ith". the refer the A"«""'°l Order IV.l-^ho will report to the next six '>»y!r^^^L?encv or '"'"*"''"*'^u .^-^r.e Ex- rourt as to its suthciency "' , q p ^h. Wi, Htle J^X" course of proceeding, see ' ^^ ^"' ^^e 2 V"" H"?^*'"?'^"'! Te/tions "for forms oExceP^o^ Eauity Draftsman, ch xiv, aim Commissm. mat^p. 119.] ,,,,.„„,„. .n..prpr».i™j»,;;:r:;;,'Vfi; * This shows the e3tP«rienc3r, » 2j>une ---^^^^^-^ Extraovainary. n-.a^^--^^ ^^^^ ^^^ .^ Ordiimry. ( I.'5 ) •oin the ossingt or must , vvbich worn to t reside a Mas- See the fully set the Re- ini'a np- in other case the made for ir filing* he tiiae e to the , ante p- ext step it care- ts of the pttothe le in the in any of e excep- Plaintiff iceptions n Causes, within the ort to the As to the i, title Ex- ythuysen's ere given.] ission' ant's C P'» jn to a De- lity Drafts- the country apply- ;'vaininers. without le expense and m- ,eforc the Master .a PnACTlCAL DIRECTIONS. Lfit tlie Plaintiff's Solicitor procure from the Registrar an office copy of Ihe Defendant's Answer— pay him 6d. per fo. for it. General Repl^a- lions are not settled or signed by Counsel-they will be prepared by the Re- eistrar, and filed, upon a note in writing being given him for that purpose bv the Solicitor ; special Replications, however, require the signature of Counsel, and are of rare occurrence, but where used, the same directions as to the drawing, engrossing, signing by Counsel, endorsing, and fold- ?nVmust be observed ts are before given, ante p. 12, with reference to the Bill and Answer. File it with tho Registrar— pay him 2s. 6d, When the Plaintiff has replied, the next step in the Canse is to be taken by the Defendant by rejoinder, whereby he traverses the Plaintiff's Replication, and asserts the truth and sufficiency of his own Answer. A Rejoinder, however, is not in genera/ actually filed, but the Plaintiff^ obtains, 0/ course an order for a Subpoena, returnable immediately, against the Defendant, calling on him to appear to rejoin, the obiect of the Subpoena being merely to put the Cause completely at issue between the parties. [For further in- formation on this step in the suit, see 1 Grant's C. P., chap. XXX.] PRACTICAL DIRECTIONS. Let the Plaintiff's Solicitor draw a Petition for leave to issue a Sub- poena to rejoin, aod for a Commission to examine C' . ^"y^'J^^""^^^^* '" the country, if they reside above twenty miles from the City of Toronto returnable immediaiely. [See form, 2 Grant's C. P., p. 65.] File the Petition with the Registrar-pay him 2. 6rf. ; he will draw up, pass and enter the Order-pay him 2^. 6d. for the Order, &c., and 45. 3d for the Sul^tEna to rrioin. Serve the Order and Subptena on the defendant's Solicitor with ,; ,ne week from the filing of the Replication. [See Order Xlll.l VVitnessos living in the City of Toronto, and within the distance of twenty miles from it, must be examined before tho Master in Ordinary, and Examiner of the Court ; but any witnesses living in the Province, be- yond those limits, must be examined under a Commission to be issued for Uial purpose. Let tho Plaintiff's Solicitor, within four days after service of he Order for the Commission-[See the terms of the Order]-obla^ from the Defendant's Solicitor the names of four persons who will act as Commissioners on behalf of the Defendant, not bemg concerned in the Cause; but if the Defendant's Solicitor fail within ^he U me prescribed, to give the names of four Commissioners, then let the Plaintiff's Solicitor leave with the Registrar a note in writing, containing the names ol four personTto act as Commissioners, on the part of the Plaintiff, m the follow- ing form ::— ■ ,. To Wm. Hepburn, Esq;, ^^ „ p j^^iff ,, Soli- IfaJin the foilowing form :r- *» In Chancery. c: D- ? Names of Plaintiff's CommisBionera. B. F. r G. H. 3 Names of Defendant's Commissioners. P. Q. ^ 17 p nnd G H., at the option of th^ t . /i R and C. D.'s names (or E. F. and ^. «., , j g.,^ Commis- Jjet A. o. P"'*. ^•.'^ .„„ . ;„ jhe Commission as the riainuu piaioiifF's Solictor) ff^^^i'^^Xo names proposed as Commissioners on „d also strike out ine n^n .» -V.^,^ go- tp ihe reiuio.] [Plainliff 's SoUciloi'' ■»■»<' »"* ''*"■•' »• To Wm. llepburn, EUq., '* f''8""""r.u.r„mB.U6i0M» named in the Gom- It is to Ije observed that two ?[''>' p"™'T'"h„ct,ng Commissioner. „Won are sifficieo. to "=■=""."' f"'t°" '^^'"ake "he evidence, and ho r... in all cases, to a P^f--» ^^^ ins.rno.ious given to the Com- rl°ntrS^:ee^„drd":nUco,„m,s.^ ""siould the Plaintiff not P'.""«^ „» •^l'^",^: Commission for the exa- „,vipg the Sub^oa '"'Xt'eolre of proceeding to be adopted on the PS:'.J:S'.; SS in-order XlV. of the Court.] parties new proceed in support of their case as statetl in the pleadings to the If it be intended that the examination shall be wholly ot Plaintiff urn day te.] ff»9 SoU- ssionMS, le Regis- lers* ption ofjth^ •'8 CommU- iasioners on J. K. and aintiff's So- nt, and let a the Plaintiff N. O., and iqa above as id date.] I in the Gom- ommissionera Jence, and he a to the Pom- is Replication, n for the exa- adopted on the ] se as stated be wholly oi ( 1^ ) partly oral, the PlaintiiTs Solicitor must attend the Master in Ordinary, and Examiner, before the Commissioners, ac- cordin"' as the witnesses are to be examined in town or m the country, when the examination and cross-exammation will be conducted, and the evidence taken as in a Court ot Law Should, however, it not be intended to examme the witnesses orally, the Plaintiflf's Solicitor must prepare written interrogatories for the examination of his witnesses. [For forms of Interrogatories, see 2 Van Heythuysen b Equity Draftsman, p. 154.] PRACTICAL DIRECTIONS. Examination of Witnesses in Town. iL examination. Before any witness can be examined, notice in writing, itntlin*::;; rname anddesc'ription of such witness must e served upon the Solicitor for the opposite party.— F«(/c Order XIX, thus .— *♦ In Chancery. ^ , „ t [Name of the Cause.] r ■ t » Take notice that A. B., of [insert place of residence and FofessionJ, will be examined before [' the E.xaminer,' if the witness live in Toronto, : within twe"nty miles .hereof, or Mhe Acting Co-m.ss.oners und.r the Commission issued for the examination of Witnesses in this Oause, il m [iecrntry,] as a Witness on behalf of the [Plaintiff or Defendant as the case may be.] [Solicitor's name and date.] «» To Mr. — ," . ^ , T rPlaintifPs or Defendant's Solicitor, as the case may be.J . If k witness refuse to attend to be examined, a Subpoena roust be take u out and served personally. Leave a Precipe with the Registrar in the fo.- °«"lub°pffina7or [name of witness] to appear i" Ch^^Jf 7' /«\"'^^''.^^t immediately, to testify on the behalf of A. B., [Plaintiffor Delendant, as the case may be.] [Solicitor's name and date.] <' To Wm. Hepburn, Esq., Registrar." . . • j u u-™. Obtain from the Examiner a Subpoena notice m writing, signed by him, of the time and place of examination, and serve it with the Subpoena. IT the witness prove contumacious and will not attend after being served with the Subpoena and Notice.-fSee the course of proceeding to compel him^ 1 Granl'8 C. P., c. xxxix.-fc^ee also the same chapter for the pracuvo 3 (18) «. Kt/ nickness— examioalion irt ihi „he,, a »i.n«s is co-linod m P'^'™ °^ "^..^^.o, i„ui„gthe Conami.sio„ where Iho examiiiation i» 'o P'°r , ,^5 Kegiairar-pay h™ M- P" „ offi« copy ot .he If "Sro. Tnd "»»-"" ""■■" "t*"" TrsdU folio i annex Ibem to ">» ConnW^s""' ^^^^-^^^^^^^ "Ti. Com- form of a parcel, post pa'^. "> "p'n :„s„uctions »m be given 10 the Com- S thinks most likely .0 act FM tns.r ^^^ ^^ ^^^ Commi.s.on. «h,ch mi,.ioners with the nwessary forrns c p„ceeding "nnecessary.-tor fur- .enders a statement he e ol the course p _ ^^ _^^ ^ause, see G «nt s ,her informaiton on th,, ^»"^^P,i„„ „,- w itnesses ;" oh. xl, t.tle 5;a'cy;' -c-hrxli; Si: " "nrogatorics and Depos.t.ons." When the Depo..ions - -"^^f ^^0=^! to the Registrar ^y Ae Lxamme , ^ _^^ ^^.^j^. ^^^^^ ers, as the case may be, «mch mub ^^^ ^^ih ar- da;s after clos ng the C°~;°- .,„[,„,.]_The Regis- tide of instractton to ^^ ^J^^vs of both parties, w.U trar, at the request of "'« ^°'"=^J°he Deposiiions as expe- make and «'«''^«T^?'^'^f,"?P'has received them ; and it may ditiously as poss.We » '^^ ''^^I'^Vr'sinal documents, B.Us, be here observed, /'>»\ J", ".errogatories, Depositions, Answers, amUther plead ngMnUrrog _^^^^ ^^^^^^ and Affidavits (except hose maue Registrar, and Master in Ord.nary) mt^st be hleu « ^.e-the Court office copies taken ^X .the So>'"'°; ' J^,„ „,ere may be a „ever regarding the °"g'"^^\f 'J.P,,e office copy. The *"'P"''', " ' m'ed and keinnviite, in case reference to SataXture'petod'sh'ould be necessary. Setling down the Cause. If the Plaintiff 's Solicitor tWnk he J" -ft')' PJ^^^^^ to a hearing of the Cause "f °" f ^! ''^^^e o^ if evidence going into Ividence m ^"PPi"^* "^j^^janl or by both ; the ^nSret; t trcit^'ol tt several parties by the Registrar. TRACTICAL DIRECTIONS. I iti thi nnission irocure 6d. per I in tho ne Soli- le Com- , which Por fur- Grnnt'a ) •» Evi- imitted lission- n three ah ar- Regis- es, will IS expe- J it may 5, Bills, osilions, fore the rar, and c Court lav be a y. The rence to proceed , without evidence both ; the he Cause ;nce have parties by ( 19 ) the following form, and pay him Qd. for filing it, and 5,. for Helling th« Cause down : — " In Chancery. ^ ^ ^ ^ ^ i« Ra nleased lo set down this Cause for hearing forthwith. Be pleased lo ^^^^^^ ^^ Plaintiff's Solicitor and date.] «« To Wm. Hepburn, Esq., Registrar." The Registrar will then enter the Cause in his Book of Causes atfcordingly, the next in succession after those ^* Order^XULabove referred to, provides a remedy for the Defendant in case of the Plaintiff's delay in setting down the Cause, which vide. Stibpana to hear Judgment. The Cause is now ripe for hearing, but by the terms of Order XIII the Plaintiff must serve a Subpoena to hear Judgment returnable within one week rom the fay on ihich office copies of the evidence are del. vered out by the Registrar. This is the next step to be taken by the Flam tifTs Solicitor after setting down the Cause. PRAGTICAL DIBKCTIONS. Le, ,h. Plaintiff', Solicitor leave a Pre=h>e "i'h'he Registrar jMho fol- " To Wm. Hepburn, Esq., Registrar." The Solicitor must endorse upon the Writ these words " Tc .ar Judgment." It need not be served personally on the Defenlant, Order IV providing that s- vice on his Solicitor shall be deemed good service.-.[See further upon this subject, 1 Grant's C P., ch. xlv.J The Hearing, The Cause will be heard in Court on or as soon after the 4 .! .1 :„ *u^ CpKprpno in hpar indffment as me Court may have disposed of the Causes standing betore (20) u Ti,» c!«r.oUor Iherefore, must from lime to time watch !he JrocSngs" ;" Ibe Court, to see when the Cause .b likely to come on. PRACTICAL DlRKCTtONB. .^Stra'nIil'XroVirpr^°."rcf%;e°B'i.,. .wo dear d.J. before .he hearing. \fter hearing the Cause, the Court, if all proper parties are\"efore'it?vv1u pronounee >'» d--'-;,''^ ^t^reSg • 4i.o r;i1 florreeinff the relief prayed— or by reierriig 2 ttfeV-rho^elessary) to aLertain ceH^^^^ S^oru\^.:;\ ;.s "rpo^lhrot r^^^^^^^ made his Report! the Court will pronounee such Decree as Tavbe lust -rSee further information with reference to ^HeVrtg, ind Decree, when a^olaje >^^r^ ^ 1^ °Th1Ve" 5r rtue mL'^ of thfo'ecrle made by Ihe CoLt-paf iL U. U. for every Exhibit marked «.d filed. PRACTICAL DIKECTIONS. Let the SoHci.or, in who» Clien.'e ^'-"V'JiJilerArhi-"'''"" gi.o„, ..ten.) '''^F^»g'f 7'/S;,tjrorof.he ot^er pr-ierof .h'd.y .«d OU8 V ordered copies oi the Minutes, wiulu wm vimntfiq when when he will slulo and sign .ho M,nu.e» ^ee'e 'he *^ ".^.rp.^ie." Solicitors concerned, to ^tlend the Registrar, on V'^'^^^rig .he Decree . ♦♦ In Chancery. «« A. B. V. C. D. «♦ Take notice that the Registrar will pass this Decree ^n^ — ;;;;^ day of ■ at noon or at |" -- ■« ^ o/at in the afternoon, [As the case may be.J- *' To Mr. FNarae of the Solicitor, drawing up the Decree, and date.J i , Solicitor" [for the Defendant or Plamliff.J (21 ) watch use 18 with the ings in- jfore tha parties lismiss- jferring acts be- n Ordi- • he has jcree as ence to first in- vii, and ;e made ked and liAve been im 25. 6rf. le day and e. Let all ving previ- to attend), lUtes when the parties, ibtained the uments and and sums; y think ne- tolhe other icree :— ^ nd date.] The Solicitors who do not draw up the Decrod hut take copioi, will either when they meet the Solicitor drawing up the Decree, when ho attends to pass it, with the Registrar, or afterwards, according to circum- stances, take care to examine and see that their copies are correct with the oriKinal'. The Decree must then be left with the Regiatiar to be entered. Pay the Registrar Is. per fol. for drawing Decree, and Gd. per fcl, for en- tering and copying. Having said thus much with reference to the regular steps in a Cause, we shall now proceed shortly to advert to Interlocutory Proceedings, These occur in the commencement and during the pro- cress of a Suit, and are resorted to for a great variety of purposes before the question between the parties is brotight to a hearing at its regular period. They are of two classes Motions and Petitions. Motions. These are of two kinds— of course, which are made with- out notice, being required to be given to the opposite party, and special motions, which are only allowed to be made upon such notice previously given— of the first kind are, for instance, the following :— To amend Bill before repncation —to refer Bill or Answer for scandal, &c.— or an Answer for insufficiency or impertinence— for the different pro- cesses of contempt, and other matters, which by the ordi- nary course of the Court are allowed as necessary for the ends of justice. Some of these matters, however, must be actually moved in Court ; others need not, and delivering a motion paper to the Registrar will be sufficient.— [See 1 Grant's C. P., ch. xxxv.] PttACTICAL D1EECTI0N9. Motions of Course. Let the Solicitor for the Applicant prepare a Motion Paper on half k «heet of draft-papor, or a quarter slieet of (oolscap, once folded lengthwise. Write inside the title of the Cause thus, for instance :— ♦♦ in Chancery, ' ' , , . rn^ . r\ *' Between J. M., an Infant, under the Age of Twenty-One T-\ • ] years, by N. B., iisq-, his next rriciiu, and W. P., M. M., and W. II., .IflC- . Defendants." ( 22 ) And oa-tl»*^«t*'de thus :— In Chancery, M Brief for Plainliff. Motion to refer the Defendant, W. P.'s Answer, for insufficiency. [Counsel's Name ai^J JaJo.] [Solicitor's name.] Deliver it to the Registrar, who will draw up the Order.-[Seo the direc lions bifore given as to drawing up, passing, and entering the Order. Special Motions are very ^a".^"^^^ ^f ^™P^f llJ,? ^^^ money, admitted in an Answer into Court-that a Bill may be dismissed for want of prosecution-that the ^^fendant may leave with the Registrar a deed, admittedby his An- swer, to be in his custody-to discharge an Order, and liberate a party committed for a contempt of Court—tor me Master to "review his taxation of a Biii of Cosls— loi uu ui- tachment for not leaving deeds in the Master's office— that plaintiff may produce witnesses to be cross-examined, ( 23 ) the direc- rder. To pay (ill may fendant his An- er, and -for the >r aii tit- office — amined, PRACTICAL DIRECTIONS. • Special Motions. The notice to be given must express shortly all the objects of the appli- cfttion, for in general the Court will not extend the Order beyond the mo- tion ; thus:— If the costs of the application are desired, they must be re- quired by the notice of Motion, otherwise they will not bo given. Suppose the application to be by the PlaintifT, that the Defendant may pay money into Court, admitted by his Answer to bo in his hands, let the Solicitor, (or the Plaintinr, give the following notice of Motion, which will serve aa a iorm for other applications: — " In Chancery. r .u 01 • »•«• i •♦ Between A. B., C. D., &c. [Insert all the names of the Plaintiff^.] Plaintifis ) and E. F.. G. H., dec. rinsert all the names of the DefendantR.J '- Defendants. ♦• Take Notice that the Plaintiffs intend to move his Honour the Vice Chancellor on — next, the day of ~ instant, or so soon after as Counsel can be heard, that the Defendant E. F. may be ordered on or before day of next, to pay in'^^he "^"^ or Upper Canada, with the privity of the Accountant General of this Lourt, to bo placed to the credit of this Cause the sum of £ ■-. Haiiiax Currency, admitted by his Answer to be in his hands. And that the said sum of money, when so paid in. may be laid out m the purchase of Go- vernment Debentures, with the privity of the said Accountant General, m trust in this Cause. . ^^ ^ ^^ ^j^.^^.^^ g^^.^.^^^ " Dated this day of . ^^T*t? •• To Mr. , Solicitor for the Defendant h. F. *• To Mr. , Solicitor for the Defendant G. H." ^ Serve copies of the notice on the Solicitors of all the parties interested, which, according to Order XVI, must be done at least two days before the hearing of the Motion, for instance, Monday for Thursday. These mo- tions rnust always be supported by affidavits, verifying the material facts, which affidavits must be filed with the Registrar at least two days before the dav of Motion ; to give the opposite parties time to ^^ke o^ce 3'^ and file others in reply, if necessary.-- [As to affidavits, see the re ma k 9 post, p. 26.] Attend the Court-get the Minutes ^^,^0 Order romtha Keg s\rar-give notice to parties to attend him onsetthngthe Minutes and Sng the Order, as before directed with respect to the drawing up and L— :«» 4K- n«««o Thft OrHflr must be entered by the Registrar. ^ ( 24 ) Petitions* These, ..ke Motion,, are eilhcr of cmrse or mcU They eVer Ca«sc Petitioner Petil.ons e^/« «.«^j^ ^^ former « on the Petitioner is a party to a smt to vvh ch tho purposes of forwarding a suit, such as for setting down Pleas, Demurrers, or Exceptions to be argued. PRACTICAL DIRECTIONS. Petitions of Course. 'Engross the Petition in a neat l;,-^;-'^'"f^;'" te'^^tR Tn^d'^Answen waysiendorse it as befor. dincted ^.th respect to he B.M am^ Lea.e it with the Registrar to ^^^"Xt tion^answered, 'i Gd. The an- Registrar for tiling and geU.ng me P«^'''"j' ^"^^^^i^^ of it to be given swer consists of granting the.prayer and req r.ng notice o ^^^ ^«^^^^ forthwith. The notice required to ^^ f'^^'^jj^^.^^l ,^ ^y Jf it. Leave Feiilion.] Vr).rm/ Petitions are presented to obtain iipportant ob- ^pecial ^^V"°" /'^/.Up„pforp never granted without llVhe^dr Co^"l"f:Vt[atX"the Lnsfer of fun^ ^:rpi;rnoP™o.^mtheC^^^^^^^ the r respective rights and >»t^rest ineieiu, ^ by prior 'proceedings in f-, -^''s„,f -;,^^;:;,he M-'-^^^ £ttLC^:^rttof?ufltn°\Jde^ nu'C-For Iney by a party entitled on com.ng of age, TRAOTICAL DlRBCTlONi. I Special Petitions. .~ «V/ Draw the Petition, siatiGg «»3 »av. thus : — f«nta nnrnffraDhically. Addresi it ( 25 ) oeciaL ; the jh tliG to the :h are neral, iinary down r, book- Answer. •r. Pay The an- te given e Order, Leave 2s. 6rf. ; jred with jsing the tant ob- wtthout of funds rding to 3rtained stock to Master's 3f an an- g of age, " In Chancery. " To the Honourable Robert S. Jameson, Vice Chancellor of Upper Canada, *» Between, &c. " The humble Petition of A. B. ♦' Shfcweth, «» That," «kc. Concluding with the prayer, thus, in an inner margin : — " Your Petitioner, therefore, humbly prays your Honour, that, &c. <' And your Petitioner will ever pray," &ic. It need not be signed either by the party, his Counsel, or Solicitor. En- gross it on foolscap paper, bookways, on one side of the page only. Endorse ft as before directed. Leave it with the Registrar, to be answered by the Vice Chancellor, which is done by his requiring the allendance of all par- ties on the matter of the Petition, and notice to be given as above men- tioned in the case of Petitions o/course. Pay the Registrar 2s. 6d. A copy of the Petition must be left by the Solicitor with the Registrar for the use of the Court. Sorve copies of the Petition on the Solicitors of all necessary parties, with the Vice Chancellor's answer thereto, which is the notice thereby required to be given — it must be served two clear days before the day of hearing. [See Order XVI.] The copy of the Petition left with the Registrar are sufhcient instructions to him to set down the same for hear- ing. Pay him 5s. for setting down the same accordingly. Attend Court — obtain and settle Minutes— pass and enter Order — ['See the directions given respecting Special Motions, antCj p. 22.] Ex-parte Petitions. It is hardly possible to detail all the subjects of this class of Petitions, but it may be observed that the appointment of guardians to infants, and for an allowance for their main- tenance, forms a leading one — [See 1 Grant's C. P., c. Ixiii] — and if the heir and devise Commission be superseded by an Act to be passed by the Legislature, and the jurisdiction transferred to the Court of Chancery, which is considered very probable, such cases will be brought forward under this head of Petitions. PRACTICAL DIRECTIONS. Ex-parlc Petitions. See the directions given with reference to Special Petitions above. Address it General Proceedings for Plaintiffs. rCJoA 1 QranVa f\ P ohnn. lYviii.l ( 26 ) General Proceedings for Defendants. [SeelGrant'sC. P.chap.lxix.] Master's Office. If the Decree or Order drrect an inqniry to take pl"ce It "'6 ueci J Ihercon, [See tlie ^"^°Z If nroceedns pointed out "for the Solicitor's gmd- course of proceeding p ^,^ ,^^ ^^ j„ Re. Zu-ch V as?o Exceptions to Answers and Reports- tGrmG(l Further Directions. When the Suit comes on, in this mode a final or such otl^r Dec ce as the then slate of the Cause may call for, w'a be pronounced, as to which see 1 Grants C. P., ''''•'''■ Costs Costs in Equity are f ••-^■7;^c"■p^t iS -"^ - a ^Sg^d \Vu!2s;ne'o'rtt;?he'^^^^^ ^^"^;n nf roc;ts— see ibid, ch.lxxiii, to be modified, how- his Dill 01 l^osis — bee luiu, 41 « u.^aJni^ccj ilone ac- Orders of the Court.] , JJUdavits. These in the course of practice, are used to verify the service of process, or in support of Motions or Petitions, TrXrintUcutiry procerd^in^ tions ex-parte-[As to the points to be attended to m pre paring Atfidavits, see 1 Grant's C l\ ch. xxxiv.] paACTICAL DIRECTIONS. Such .» are .o b. u,ed i. Cou,. ™u,. be fil.d with '^« ««f ;';';™';! .nakes office copies for Ihat purpose, and no Afiidavit, wh.ch ,3 pr ( 27 ) . duced and used in Court, will be allowed to be used or otherwise acted upon until filed. The office copy, and not the original, as before re- Trked, what the Court regards. Pay the Registrar «/• P" /°1- J° office conies, and Is, 2d. for filing and registering each Affidavit. Such IffidavUs however, as may be required by the Masle. in Ordinary in pro- ted in ^^(0^ him, need not be filed with the Registrar, bui being swora befot'the MaLr must then be left in his office, whence copies may be taken bv the parties requiring them. Deponents ''e/'J'"?;" ^>^^> 7. f Toronto or wFthin twenty miles thereof, must attend the Master in Ordi- parv to be sror-if within the Province, but beyond these limits, they must auend a Master Extraordinary for the same purpose. Where a De- Zent is sick or unable to attend, the Master or Master Extraordinary (as ^he case may he) viii attend and swear the party. No erasures with a nife wiirbe allowed-.he word must be struck out with the pen, so_ as to b^lt b le though ^^^^^^ altered-and the Master will put his initials in the marX opS such erasures or interlineations. Affidavits must be en- ZsTed in aplain and neat manner, on foolscap paper, folded once length- S and endorsed as before directed as to Bills and Answers, f^<:' J]^ Strar, when required, will grant certificates of Affidavits being filled rfeo JrSrfl and will seaJch for Affidavits, to ascertain if any expected to b^i filed havi been so or not [fee 1..], and will make office copies of the same, if found, and required, ' P As stated at the outset, it was intended exclusively to confine the present observations to the Extraordinary or Equitable Jurisdiction of the Court, and not to speak of its three other Branches; it may, nevertheless, be convenient to refer the Practitioner to some authentic source of inior- mation upon these subjects ; and it may be mentioned that Mr. Maddock's Treatise on Equity, before recommended, will be found most full and explicit. Applications may be expected to be made to the Court to decree the issuing and refusal of Patents. These fall under its Common Law Jurisdiction, as to which see 1 Maddock's Eq., p. 1-22; and 1 Grant's C. P. p. 2-4. Cases falling under its Statutory Jurisdiction must tre- quently arise, so soon as the Heir and Devise Commission shall have been placed by an Act ot the Legislature under the control of the Court. As to this head of jurisdiction. Bee 1 Grant's C. P. ch. Ixx, and the person and property ot idiots and lunatics may also call for protection. This in Endand comes within the specially delegated power ot the ;ourt oi unaucery. j.occ i»^iv.,