THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
^^Su^^^%)
>VV*V4tfV
kVv^
H
THE
PRACTICE
OF THE
HIGH COURT
OF
CHANCERY.
By JOSEPH HARRISON,
of Lincoln's inn, esquire.
NEWLY ARRANGED,
WITH THE ADDITION OF THE MODERN CASES.
By JOHN NEWLAND,
OF THE INNER TEMPLE, ESQUIRE, BARRISTER AT LAW.
IN TWO VOLUMES.
VOL. I.
LONDON:
PRINTED BY A. STRAHAN,
LAW PRINTER TO THE KINg's MOST EXCELLENT MAJESTY?
FOR J. BUTTERWORTH, LAW BOOKSELLER, FLEET STREET,
AND J. COOKE, ORMOND QUAY, DUBLIN.
1808.
T
ADVERTISEMENT.
THE eftimation in which Harrifon's Chancery Prac-
tice is juftly held by the Profemon, and the length of
time which has elapfed fince its Jaft publication by the
Author, induced the Editor to undertake a revifion of this
work. An alteration has been made in its general ar-
rangement ; and the modern cafes on the practice of the
court, and other new matter, have been, introduced be-
tween brackets.
Inner Temple,
Odober 1808.
A : TABLE
O
74RS*°
TABLE
OF
CONTENTS.
CHAP. I. On the jurifdiSion of the court of chan-
cery - Page i
CHAP. II. Concerning the office of lord high chancel-
lor — mafter of the rolls — and the reft of the officers
of the court of chancery - - - ix
CHAP. III. Of parties to a fuit - - 25
CHAP. IV. The form of original bills for relief 41
CHAP. V. Bills of interpleader - 45
CHAP. VI. Certiorari bills 49
CHAP. VII. Bills to perpetuate the teflimony of wit-
neffes - - - - 5 2
CHAP. VIII. Bills of difcovery - - 57
CHAP. IX. Amended bills ... 60
CHAP. X. Supplemental bills - 66
CHAP. XI. Bills of revivor - - 71
CHAP. XII Crofs bills - - - 81
CHAP. XIII. Bilis of review 84
CHAP. XIV. Bills impeaching decrees on the ground
of fraud - - - - 91
CHAP XV. Bills to carry decrees into execution 93
CHAJr. XVI. Informations - - - 95
CHAP. XVII. Subpoena - 97
CHAP. XVIII. Letter raiffive - - 101
CHAP. XIX. Of the fervice of the writ ot.fubpoena 103
CHAP. XX. Appearance - - - 108
CHAP. XXL Attachment - - - 115
CHAP. XXII. Habeas corpus - - 124
5 CHAP.
vi CONTENTS.
CHAP. XXIII. Attachment with proclamations Page 127
CHAP. XXIV. Co mmi (lion of rebellion - 129
CHAP. XXV. Serjeants at arms - - *34
CHAP XXVI. Sequeftration - -' 137
CHAP. XXVII. Dijlrlngas - - 149
CHAP XXVIII. Bills proconfefo - - 15*
CHAP. XXIX. Contempts in general - 157
CHAP. XXX. The time and manner of filing an an-
fwer - 164
CHAP. XXXI. Of the matter to be contained in the
nfwer - - - - l8t
CHAP. XXXII. Amending anfwers - - 188
CHAP. XXXIII. Referring anfwers for fcandal, &c. 192
CHAP. XXXIV. Excepting to an anfwer for infuffi-
cierjcy - x 9 6
CHAP., XXXV. Excepting to the matter's report with
reft rence to an anfwer - - 20 5
CHAP. XXXVI. Demurrer - - - 210
CHAP. XXXVII. Plea - - - 218
CHAP. XXXVIII. Difclaimer - - 235
CHAP. XXXIX.— Replication - - - 237
CHAP. XL. Rejoinder and rejoining in commifnon 241
CHAP. XLI. Commiffions to examine - 245
CHAP. XLII. Examination of wicneffes - 259
CHAP. XLIII. Publication - - s8 5
CHAP. XL1V. Depofitions - - 2 94
CHAP. XLV. Setting down the caufe for hearing 302
CHAP. XL VI. Subpoena to hear judgment - 3°4
CHAP. XLVII. Hearing -
CHAP. XLVIII. Difmiffion - - - 3 X 3
CHAP. XLIX. Decrees - - * 3 21
CHAP. L. Signing and enrolling decrees - 3 2 S
CHAP. LI. Execution of decrees - - 33 r
CHAP. LIL Exemplifying decrees - - 3~$6
CHAP. LIU. Reviving decrees - - 339
CHAP. LIV. Rehearings and appeals to the lord chan-
cellor - - - » 41
CHAP. LV. Appeals to parliament - - 34$
CHAP. LVI. Cofts - - - 354
CHAP.
CONTENTS. vli
CHAP. LVII. Infants - - Page 361
CHAP. LVIII. Feme coverts - - 375
CHAP. LIX. Lunatics - - - 379
CHAP. LX. Paupers - - - 389
CHAP. LXI. Solicitors - 392
CHAP. LXII. Affidavits 398
CHAP. LXII. Or petitions in general - 417
CHAP. LXIII. Of motions - 464
CHAP. LX IV. Of references - - 472
CH^P. LXV. Reports and farther directions 478
CHAP. LXVI. Sales before the mafter - 490
CHAP. LXVI I. Certificates - - 494
CHAP. LXVIII. Receiver 499
CHAP. LX1X. IlTue - - - 508
CHAP. LXX. Orders - - - 511
CHAP. LXXI. Paying and receiving money in court 524
CHAP. LXXII. Deeds and writings - 530
CHAP. LXXIIT. Writ of ne exeat regno - £33
CHAP. LXXIV. Writofinjunaion - 539
CHAP. LXXV. Writs of certiorari and procedendo 560
CHAP. LXXVI. Writ of homine replegiando 562
CHAP. LXXVII. Writ of fupplicavit - 503
CHAP. LXXVIII. Bills, anfwers, and interrogatories 564
CHAP. LXXIX. Of the proceedings upon a commiflion
of lunacy - - 629
THE
THE
PRACTICE
OF THE
HIGH COURT OF CHANCERY.
CHAPTER THE FIRST.
On the Jurifdiclion of the Court of Chancery.
IN Chancery are two powers or courts; the one (a)
ordinary, the other (b) extraordinary ; the former is a common
law court, and the proceedings therein are according to the
laws and ftatutcs of the realm, called the Petty Bag Side ; the
latter is a court of equity, and proceeds according to equity
and good confcience (c).
With refpetl: to the ordinary or legal court, it has been
a court of record time out of time, and held coram domino
rege in canccllario on the Petty Bag Side (d). It (e) hath
jurifdiclion to hold plea of fcire facias for repeal of letters
patent at the fuit of a former patentee, when they are granted
to feveral perfons for one and the fame thing : But when
they are againft the law, or granted upon a falfe fuggeftion,
the king may have a fcire facias to repeal his own grant by
letters patent (/). Here alfo it may hold plea of petitions
m$njirans de droit, (i. e.) for a fubjecl to be rcltored unto lands,
Sec which he fhews to be his right (g) traverfes of offices,
(i. e.) to prove that an inquifition taken of lands or goods is
(a) 8 Edvv. 4 . 5. 9Edvv. 4. 15. (d) 2 Inft. $$2. 4 Inft. 79-
i4Edw. 4. 7. Lev. 142.
(*) Stan. Prar. c. 20. fol. 6$ b. (e) 4 Inft. 79, 80, 81, 8a, 87,
Pl.Com. fol. 4, 72. 88.
■ (c) Vide 2lnft.5 52. 4 Inft. 79. (/) Vide 18 Hen. 6. c. I.
Lambard's Archaion, 58, 78. 3 Edw. 6. c. 4. i^Eliz.6.
Clef. Obferv. Office Lord Chan. (g) Vide 34 Ed. 3. c. 14.
44. 45- 36 Ed, 3. c. 13. 4 Re P- 54-
Vol. I. B defective
2 THE JURISDICTION OF
defective and wreng. There may alfo be a fcire facias upon
recognizances in this court (£), execution upon a flatute-
itaple, Sec. But the execution upon a ftatute merchant is
returnable either into the K.B. orC. P. (/') And this court may
hold plea of all perfonal actions by or againft any officer or
miniiler of this court in refpeft of their fcrvice or attendance ;
and by acts of parliament of feveral offences and caufes (k).
[It might likewife hold plea (by fcire facias) of partitions of
lands in coparcenary (/) and of dower (?n) where any ward of
the crown was concerned in interelt, fo long as the military
tenures fubfifted : as it now inny also do of the tithes of foreit
land, where granted by the King and claimed by a ftranger
againft the grantee of the crown («).]
This court cannot hold plea of land (0) but it may of trefpaf*
or debt (p).
This Court is offulna juflicut out of which all original
writs, all commiffions of charitable ufes, bankrupts, fewers,
ideots, lunaticks, 8cc. that pafs under the great feal, do iffue,
and for which it is always open (q).
The procefs is under the greac feal, which is the feal of
the court, and is now in Englifh as are all other law proceed-
ings by 4. G. 2. c.26. But the proceedings in this court are
not inrolled in rolls, but remain itif/aciis, being filled up in die
office of the Petty Bag (?-).
In profecuting caufes, if the parties defcend to iflue, this
court cannot try it by a jury ; but the lord chancellor delivers
the record with his proper (s) hands into the King's Bench
to be tried there ; becaufe for that purpofe both courts are ac-
counted but one; and after trial it is to be remanded into
Chancery (/) and there judgment to be given : But if there
(h) Vide 23 Hen. 8. c. 6. (r) 4 Inft. 80.
(i) '4 Inft. 79. (/) An officer's delivering the
(i) 4 Inft. 80. record is held fufficient. Jefferfoa
(/) Co. Litt. 171. A. ▼• Morton. 2 Saund. 23. The King
(m ) Bro. Abr. Tit. Dower. 66. and the Warden of the Fleet. 1
(n) Bro. Abr. T. Difmes. 10. Eq. Ca. 128.
(0)2 And. J 64. And therefore it) But it feems that the con-
where a fuit was in the chancery ftant practice has been to give
of Chefter, for a woman's jointure a judgment in the King's Bench,
prohibition was granted. Sid. 189. Lat. 3. Allen 17. 2 Saund. 23. et
(p) 26 Hen. 6. 32. I Eq. Ca. 128. For when a re-
\q) Vide tifln'it. 80. 81. The cord comes into the court of
chancery in ourold books is called King's Bench, it is never removed
Oficina Brr.ium originalium et re- out of that Conrt. Vide. I Salk.
mcdialium ; where all original w fits 352.
were deyifed and framed.
THE COURT OF CHANCERY. *
•J
be a demurrer in law, it fhall be urged and adjudged in Chan-
cery (iv).
[If there be a demurrer upon part and iflue for other part in
Chancery, the whole record ihall be delivered to K, B. which
lhall give judgment both on the verdict, and on the de-
murrer, and the record fnall not be fent back again into Chan-
cery (.v).J
[If the Iflue arifes in a county palatine, the Chancellor ought
to deliver the record unto the King's Bench, and they to
write to the county palatine to try, and return it to the
King's Bench ; for the Chancellor cannot write to the county
palatine to try the iflue, neither can he tranfmit the record to
be tried there or in the common pleas (j) ; yet if the iflue is
to be tried by certificate, the Chancellor may write to the
Bifhop (z).]
A writ of error was moved for into B. R. on a judgment in
the Petty Bag, but denied. The lord Keeper was pleafed to
think Dyer (a) and Coke's (b) opinion ill founded, and thought
the jurifdiction of the Chancery on the Latin Side, not fubje£t
to be controlled by K.B., and faid he would injoin all fuch
writs of error (c).
[An action was brought in the Petty Bag Office by the Six:
Clerks v. Baker, one of the Sixty Clerks, for fees. It was
tried in the K. B., and a verditt found for plaintiffs. A new
trial was moved for in K. B. and refufed ; afterwards 20th
December 1787, defendant applied by petition to the lord
Chancellor for a new trial The lord Chancellor difmifled the
petition with cofts, without heaving any argument, on the
ground that the application ought to be made to the K.B. and
not to him.]
Having confidered the ordinary court in Chancery proceed-
ing according to law ; it will be proper next to fpeak of the 0t*
traordinary court, proceeding according to equity.
().]
[The principal of the inferior jurifdidtions in England are
thofe of the county palatine of Che/Ier, Lancajler, and Durham,
the courts of the great feffion in Wales, the courts of the tw§
vniverfties of Oxford and Cambridge, the courts of .the city
cf London, and of the Cinque Ports. Thefe are neceffarily
bounded by the locality either of the fubject of the fuit, or of
the refidence of the parties litigant ; where thofe circum-
stances occur, which geve them jurifdi£tion, they have ex-
clusive jurifdi&ion in matters of equity as well as matters of
law j and they have their own peculiar courts of appeal ; the
court of chancery afluming no jurifdiclion of that nature,
though it will in fome cafes remove a fuit before the decifion
into the chancery by writ of certiorari. "When therefore it ap-
pear on the face of a bill, that another court of equity has the
proper jurifdi£tion either immediately or by way of appeal,
the defendant may demur to the juriidiction of the court of
chancery (q).~]
[The plaintiff called on the defendant dwelling in the
county palatine of Chejler, to anfwer a bill of lands lying in
the faid county palatine, contrary to a general order lately
certified into this court, touching the faid county palatine (V).]
[Upon affidavit made that the defendants dwell within the
connty palatine of Chefter, and the caufe of the bill to be
relieved of certain debts there, the caufe was therefore dif-
Hiiffed into the county (j-).]
[The plaintiff having exhibited his bill as a privilege man
for lands lying in the county palatine of Chefter, as it appeared
by letters patent openly fhewed in court, under her majefty's
great feal of England, that this court by any privilege ihould
not hold plea of land lying within the faid county palatine,
the bill was therefore difmified, if the plaintiff fhewed not
good caufe (/).]
But if a man hath caufe to complain in equity of a matter
arifing within the county palatine of Chefter, if the defendant
(o) Jay v. Braine, I Eq. Ca„ (q) Mitford 133.
134. (;•) Carj'59, x edit.
(p) 8Vef. 241, etvide 2 Vein. (s) Cary 82, 1 edit.
426. Pre. Clia. 47, 153. 1 Anft. (/) Cary J09, I edit.
162. fed vide l^Vern. 469.
lives
THE COURT OF CHANCERY. 7
lives out of the county palatine, lie may be fued in the
chancery here (iv).
[A defendant pleading the jurifdi&ion of the county palatine
to a fuit here, was over ruled to anfwer ; the plaintiff living
out of the county (a-).] A decree being afterwards made
between the fame parties, was reverfed here ; for that it was
made coram non jud'ict (y).]
A man cannot fue in the chancery of Chefter for x thing,
which in intereft concerns the chancellor there {%) .
Upon a bill to have an account of the profits of land which
the defendant had received on truft for the plaintiff during hit
minority, and for monies received upon bonds belonging to
the plaintiffs, and for writings ; the defendant pleaded that the
lands lay in Chefhire, and that the defendant lived in Chefhire
in the county palatine of Cheshire and Lancamire ; upon long
debate the plea was over ruled, but without cods (a).
[Where the bill was exhibited for certain lands parcel of the
dutchy of Lancafler \ it was ordered that for fo much, it mould
be dilmiffed (£)].
[It hath been held, that if the plaintiff charge the defendant
for iffue and profits of lands in the county palatine of Lancafter,
merely by way of account, the defendant mould not be com-
pelled to anfwer here ; otherwife if he charge the defendant
in refpect of a promife {c ) ,~\
[It appearing that all the parties dwelt within the jurifdiclion
of the marches of IValcs^ the caufe was difmiffed to be triei
there (*■).]
[Where it appeared, that the plaintiff and defendant were
both dwelling within the jurifdiction of Wales, and that the
money complained of was under 10I., therefore the caufe was
difmiffed (d).~\
[Conufance of pleas in equity in the unherfty of Oxford t
was not allowed by way of claim ; it muff be by way ot plea ;
but need not be upon oath (/").]
[A bill was exhibited here touching certain promifes about
goods and money ; upon the defendant producing a certificate
under the feal of the univerfity, of their right of conufance of
pleas, &c. (felony maihem and franktenement excepted) within,
or without the city of Oxford, &c. where one of the parties
is a mailer or fcholar, or common minifler of the fame univer.
(w) 12 Co. 113. (c) Wyatt's Pratt. Reg. 266.
(*) Pratt. Reg. 267. {d) Cary 74, 1 edit.
( y) Ibidem. (o Cary H4, 1 edit, et vide
(as) 12 Co. 113. Cary 02 and 102. fed vide Carey
{a) 1 Cha. ca. 4.!. 89.99. contra.
{b) Cary 97. (fj 1 Cha. ca. 237.
B 4 fity,
8 THE JURISDICTION OF
fity, or fuch as the chancellor, &c. will certify, ought to
enjoy the privilege of the nniverfity, &c. and that the defendant
is a batchelor of law there, the bill was difmiffed (g).]
[Even a cook of a college there, has had his privilege (A).]
[Where a member of the univerfity of Oxford was joined
a defendant with one not fubjefcl: to that jurifdiction ; the univer-
fityman was put to anfwer here (z) .]
[The plaintiff fets forth in his bill a contract under feal with
the defendant, for making a leafe of certain lands in Middlefex,
and prays an execution of the agreement ; to which the de-
fendant pleaded, that he was head of a college in Oxford, and
fets forth the charters of, See. impowering the univerfity to
inquire, and proceed in all pleas and quarrels in law and equity,
&e. and concluded to the jurifdiction of the court, but the
pleas was over ruled j firft, becaufe the charter ought pro-
perly to be extended to matters at common law only, or to
proceedings in equity which might arife in fuch cafes ; and not
to mere matters of equity, which are originally fuch ; as to
execute agreements in fpecie ; idly, conufance of pleas is
never to be allowed, unlcfs the inferior jurifdiction can give
remedy •, here they can only excommunicate or imprifon ; but
cannot proceed to Sequeftration of the lands inMiddlfex (£).]
[The plaintiff's witnefles living out of the jurifdiction of
Cambridge, the defendant was over-ruled in the privilege,
which he infifted en of being impleaded there only, and put to
anfwer ; but after witnefles were examined, the caufe was dif-
miffed this court ( /).]
[In fome cafes the privilege claimed in the cinque ports
hath been allowed ; in fome over-ruled (/»).]
[This court hath flayed the proceedings in the Jtannariet
In fome cafes the privilege of the court of ftannaries hath
b«en allowed («.)]
[Conufance of pleas or privilege claimed hy Fever/ham in,
Kent, hath been over-ruled (o).]
[The mayor and commonalty of Canterbury, defendants,
refufed to anfwer, for that by the charter of that city they
ought not to be impleaded out of the fame city ; but it not
bei»g thought reafonable they fliould be judges of their caufej,
they were ordered to anfwer (j>) .]
(g) Carey 6j. 75. (m) Toth. 15 1.
{h) Wyatt's Prad. Reg. 267. (») Ibidem,
(*')Carey55. (0) Ibidem 117.
(i) 1 Eq. Ca. 136. ip) Wy. Prad. Reg. 26?.
(/) Wy. Pract. Reg. 2(53.
[A bill
THE COURT OF CHANCERY. 9
[A bill here was to be relieved for copyhold lands, and
though the defendant infilled that the lands were ancient
demefne of the queen's manor of IVoodJlock, and there only
impleadable, yet he was driven to anfwer (?).]
[Devifeof 3,500 1. South Sea annuities to the plaintiffs, to
be applied in the maintenance of poor labourers rending in
Edinburgh. Lord chancellor would not give directions as to
the distribution of money, which belonged to another jurif-
diction, that is, to fome of the courts in Scotland -, but
directed the annuities to be paid to fuch perfons as the plaintiffs
ihould appoint, to be applied to the trufts of the will (r).]
[The court of chancery has not jurifdi&on over the difciplin©
or the property of chambers in an inn of court (j-).]
[Political treaties between a foreign ftate and fubje&s of the
crown of Great Britain, acting as an independant ftate under
powers granted by charter and a£ts of parliament, are not a
fubjeft of municipal jurifdi&ion ; and a bill founded on fuch
treaties by the nabob of Arcot againft the Eaft India Company,
wasdifmiffed (t).~\
[A court of equity will retain bills for the wages of feamen,
though they are recoverable in the court of admiralty, and
are properly chargeable upon the bottom of the fhip ; and fir
John Trevor mafter of the rolls ufed to fay that equity had a
concurrent jurifdiclion (iv).~\
[So where a cafe was within the mercantile law, yet it being
admitted by the anfwer, that the charge was for tackling for
the fhip, it was faid by the court, that a court of equity muft
grant the redrefs a court of admiralty would (*).]
Legatee infant fueth in a court ecclefiaftical ; and pending
that fuit fueth in chancery. The former fuit depending being
pleaded, the plea was difallowed ; for there is no fuch fecurity
for the infant's advantage as here ; and poffibly not for intereft
if placed out, and for bringing in account here, &c. (?)•_
Suits in chancery are admitted for the diftribution of intef-
tates' eftates, upon the flat, of 23 Car. 2. (2).
[So where a widow in the fpiritual court fet up a procurator
for her children being infants, and gets her account palled, and
fuch children's proportions afcertained there, and diftribution
decreed, and on giving new fecurity, get the old fecurity dif-
(a) Carey 85, 1 edit. (w) Gilb. Rep. aa&
(r) Ambl. 236. (*) Gilb. Rep. 227.
(s) 2 P.W. 511. 2 Bro.CC. 241. (y) 1 Cha. Ca. 85.
(*) 4 Bro. C. C. 15©. 2 VefJ, U) 2 Vent. 362.
|6. 3Vef.424,
charged j
io THE JURISDICTION OF
charged ; but the court without regard to the proceedings in
the fpiritual court, decreed an account of the whole eftate (a).']
Where there is a fraud in obtaining a will relating to a per-
fonal eftate, fuch fraud is not examinable in this court after
the will is proved in the fpiritual court, and fo long as that
probate remains is in force (/>) .
[In this court there were feveral things which belonged to
the king -as pater patriae, and fell under the care and direction
of this court, as charities, infants, idiots, and lunaticks, &cc.
afterwards fuch of th.ern as were of profit to the king, were
Temoved to the court of wards by the ftatute ; but upon the
difiblution of that court, came back to the court of chancery.
The lord chancellor has jurifdi£tion in cafes of idiotcy or
lunacy, not as lord chancellor, but by virtue of a royal (ign
manual, and from his orders or decrees touching thefe matters,
no appeal lies to the Houfe of Lords, but only to the king in
council (e).~]
[This court will not retain a fuit by Englifh. bill under ro 1.
Value, except in cafes of charity, nor under the value of 40 s.
per ann in lands, except it be lor a rent charge (d).~\
[But a bill may be brought in a court of ecmity for a lefs
demand than 10 1., provided the party cannot have any remedy
at law, ss in the cafe of fuldtraCtion of tithes (*).]
[Where a bill is for an account, and it appears that there
cannot, upon taking the account, be more than 10I. due to
either party, the bill muft be difmiffed with colts (/).]
(a) 1 Vci-n. 47. 483. et vide Owen c. Smith, 2
{b) 2 Vern. 8. 76. 2 P.W. 286. Com. 715.
Almfworthy v. Shaplond in 8th (c) Held in the fame cafe of
Edit. of Harr, C.P.i Vol.52. Ken- Owen v. Smith, according to a
rick ).
[Some have gotten this office by letters patent, at will j
and one for term of his life, but it was hold en void ; for being
an ancient offi.ee, it ought to be granted as has been accuf-
tomed (»). Sir Edward Hyde, afterwards earl of Clarendon,
had a patent to be lord chancellor for life ; but he was dif-
mifTedfrom that office (£).]
This high officer, viz. the Chancellor, is to fee that all things
concerning the court of chancery be directed and difpofed ac-
cording to his advice ; and he may hold plea as well extra ter-
minum, as infra, in matters concerning either the ordinary or
extraordinary jurifdi&ion. And this court being always open,
a man may have procefs iflued at any time (/).
And it belongeth to the Chancellor, ratione officii, to pro-
nounce the caufe of fummons at the beginning of a parliament ;
and he is to be prefent at all the king's councils, and is prolo-
cutor in the houfe of lords by prefcription, &c. (m). To him
belongeth the conftitution and appointment of juftices of the
peace, and quorum by commiffion throughout all England (;;).
And he is a confervator and juftice of the peace throughout all
England, by prefcription (o).
He is to vifit all hofpitals and free chapels of the king's
foundation. And if the ordinary offers to vifit them, a pro-
hibition lies (p).
[The Chancellor ihall prefent unto all the king's churches which
are under the fum of 20 marks by the year, which are in the
king's gift and in right of the crown : but if the king has them by
(e) Vide 4 Inft. 83.
(/) Sid. 33$-
(g) 4 I"ft- 87-
(b) Camd. Hift.Chan. 180.
(i) 4 Inft. 87.
(i; Sid. m$,
r. jn. p. £sV. is chief
of the twelve mafters in chancery, and a very ancient officer.
His office is grantable by letters patent, either for life or at
(q) F. N B. 35 K. (/ Fortef. c. z\. flat. 12 Rich,
(r 21 H 8. c. 13. 2. c. 2.
it) Kft. Chan. 57.
will,
14 THE OFFICERS OF
■will, at the pleafure of the king (w). But at this time it U
always for life.
Both the Chancellor and Kafter of the Rolls have been here-
tofore fpiritufil perfons. And by a patent offcdwai-dlll the
Mafter of the Roll* was appointed and inftallcd in the houfe'of
the rolls in Chancery Lane, by the lord chancellor, which
manner of induction and inftalment continued as long as the
Mailers of the Rolls were of the clergy ; which may be proved
bv the precedents of thofe inrolments, and the writs them-
feives extant of record (.v).
The mailer of the rolls is by virtue of his office the chief of
the mailers in chancery, as well as chief clerk of the petty bag
office, and is a judicial officer of the court of chancery ; for
befides what he doth as affillant to, or affiociate with the lord
chancellor, many caufes arc let down before him in his court
at the rolls to hear and decree, which he ufually doth on cer-
tain days appointed (v), when the court at Weftminfter or
clfewhere before the lord Chancellor or Keeper is not fitting ;
and all fuch orders or decrees as arc made by him, arc drawn
up and entered as made per curiam, and mud be figncd by the
chancellor or keeper before they are inrolled (z). And he is
the keeper of all Records, judgments, fentences, "decrees, and
orders given in chancery when inrolled (a).
Iu the llatute 12 R. 2. cap. 2. he is numbered amongft the
greateft officers and magiftrates of the realm by the name of
clerk of the rolls, and before the juftices of either bench, viz.
it is enacted, that the chancellor, trcafurcr, and keeper of
the privy feal, the fleward of the king's houle, the king's
chamberlain, the clerk of the rolls, juftices of both benches,
&c. lhall be called to the naming of juftices of peace, iheriffs,
&c. and be fworn to do the fame faithfully, and without
sftecHon. And bv virtue of his office he is a general con-
fervator of the peace throughout the kingdom ; but 'tis faid
he taketh recognizances, and iflues out procefs of the peace,
&c. not as incident to his office, but by prefcription. But
('■y) i Inft. qc. has any lawful authority to do fo,
(«) Eles. n 6 "if. or t© determine caufes at the rolls
C) [Note!, Cardinal Wolfey, (at of late times has been ufed>
who was chancellor in the 20 of unlefs he be authorized by fpecial
Tien. 8. is faid to have introduced comraifiion under the great feal ;
the matter's judging in caufes in which it feems he now is. W.
the lord chancellor's abfence ; and Pra&. Reg. 273]
lord Coke in the preface to his (*) Vide C romp. Juris. 416.
13th report, fays, he cannct con- {a) Eles. $6, 37.
ceive. that the mafter of tl e rolls
r, quaere,
THE COURT OF CHANCERY. ic
quxrty if this be not incident to his office as juftice of the
peace {b).
It appears by the ftatute i4Hen. %. cap. 8. that the Mafter
of the Rolls hath the giving of the offices of the fix clerks in
chancery. And he hath likewife the appointment of the
clerks of the petty bag office ; the two chief examiners, the
ufhers of the court of chancery, fee. And he hath divers
prerogatives by ftatutcs, commiffion and prescription, (c).
By the ftatute 3 Geo. 2. c.30*. All orders and decrees made
by the Mafter of the Rolls, except orders and decrees of fuck
nature as according to the courfe of the court ought only to
be made by the lord chancellor, lord keeper, or lords com-
miffioners, fhall be deemed valid orders and decrees of the
court of chancery ; fubject neverthelefs to be difcharged or
altered by the lord Chancellor, 8ec. fo as no fuch orders or
decrees be inrolled, till the fame are figned by the lord chan-
cellor, &c.
By the ftatute 23 Geo. 2. c.25. f. 6. the yearly fum of
1,200 1. is granted to the mailer of rhe rolls, payable by equal
half-yearly payments, viz. on the 25th of March and 29th of
September in every year.
You may move before the mafter of the rolls, to difcharge
an order made by the lord chancellor, on a motion of courfe,
or an order made ete parte ; for only one fide being heard, it is
as a continuance of the lame motion (d).
You may prefer the fame petition to the lord Chancellor,
that has been difmiffed by the mafter of the rolls, for it is in
nature of an appeal, and the party has no other remedy (e).
[Befides the mafter of the rolls, the chief, there are eleven
other Majlers of Chancery ; thefe eleven are from time to time,
upon death or furrender, appointed by the refpe&ive lord
chancellors for the time (/ ) •]
[In antient times they were created by the king's letters
patent, but by Baggot's cafe, 9 E. 4, 5. this was at that time
worn out of ufe, and they were made by the election of the
court, on fwearing them (_§•).]
(b) W.Praft. Reg. Vide Lamb, fir Jof. Jekyll publifhed a dif-
Juft. lib. 1. fol. 12. courfe on the judicial authority of
(c) Elef. 36,37. Vide Crompt. the mafter of the rolls.]
Jur. ar. (d> Mof. 72.
* [Tlu3 flat, was occafioned by (e) Mof. 77. For the form or
a controverfy between lord C. oath taken by the mailer of the
King, and fir Jof Jekyll refpeft- rolls, fee W Pracl. Reg. 277.
ing the power of the mafter of (f ) W. Praft. Reg. 278.
the rolls, in the courfe of which (g) W, Pra&. Reg. 279.
[Their
16 THE OFFICERS OF
[Their oath is the fame with that of the Matter of the
Rolls (£).]
They are afliftants or aflbciates to the chancellor, and
Matter of the Rolls, and fit with them in court ; and references
touching accounts, matters of practice, &c. aie made to them,
upon which they make their reports. And they alfo adminifter
oaths, take affidavits, and acknowlegements of deeds, recog-
nizances, &c.
They were formerly filled $krhi de prima forma y and were
to be grave and ancient clerks ; fkilful and of long experience
In the practice of the court: and by fpecial appointment of
parliament thefe twelve clerks, or matters were made coadju-
tors with the chancellor, and had equal authority with him in
forming the brevia magijlralia ; for unlefs they all agreed,
they were to go to parliament : but in all other cafes, by the
conftitution of the court of chancery, they are afliftants or
aflbciates to the chancellor and matter of the rolls. And they
were antiently members of the king's court, and allowed robes
out of the king's wardrobe, and dieted as part of the houfe-
hold, for whom fpecial purveyance was made; and as in refpecl:,
of their being connfellors, and afliftants or aflbciates to the
chancellor and matter of the rolls, they have the honour to fit
upon the bench with them in open court ; fo in refpe£t, of
their having been members of the king's court, they attend
the houfe of lords, (without receiving any writ of fummons)
and have a right to affift at the coronations of our kings (z).
The latter name of mafters of the chancery they retain at
this day ; as alfo their antient precedency before all other
clerks. And now a recognizance acknowledged before any
of them, and certified under his hand, is of that authority,
that it is a matter of record, and as effectual as if it had
been acknowledged in open court. And all deeds or inden-
tures, which are to be inrolled in chancery, mutt be acknow-
ledged before them. And every defendant in any bill exhibited
againft him in this court, muft iwear his anfwer before one of
them, except the defendant live in the country j when his
anfwer is taken by commirTioners.
By the flat. 13 Car. 2. (k) a publick office is to be kept near
the rolls for the matters in chancery, in which they, or fomeor
one of them, fhall conftantly attend for the adminiftring of oaths,
taking captions of deeds, and recognizances, and difpatch of
aJL matters incident to their office (references upon accounts
{h) W. Pra&. Reg. 279. (&) This a& is not printed.
(i) Rot. Pari. ioEd.3. Hid. W. Prad. Reg. 280.
•Chan. 30,32, 43. Vide Fleta,
Kb. 2. c. 13.
1 a and
THE COURT OF CHANCERY. iy
and infufficient anfwcrs only excepted) from feven o'clock in
the morning 'till twelve at noon, and from two in the afternoon
until fix at night: And by this act thi re are fees appointed j and
tables of the fees are to be put up in their office, 8cc.
By the Hat. 5G.3: c 28. 200 1. per annum Ihall be paid out
of the general cafti in the bank of England, belonging to the
fuitors of the court of chancery, the fame to be paid thereout half-
yearly, by an order of the court of chancery, to each of the eleven
mailers of the court, to commence from 5th June 1 765. [And
by ftat. ^6 Geo. 3. c. 128, out of the dividends of the funds
carried or to be carried to the account of the fuitors of the court
of Chancery, there mail be paid 400 1. a year additional to each
of the eleven Mailers ; and the lord Chancellor, &c. may order
an annuity of i,qool. out of the faid fund , to be paid to any
Matter of twenty years handing, or who is difabled by infirmity
from discharging his duty, on his refigning his office.]
[A reference was removed from one mafter to another, upon
the ground that the former was in fuch a ftate from his age
and infirmity, that it was not proper to go into thebufinefs be-
fore him (/).
[Befides the twelve mailers already mentioned, it hath, fince
the great increafe ofbufinefs in this court, been found neceffary
to appoint one or more Majlers Extraordinary in each county
for the taking of anfwers, affidavits, deeds^ and recognizances
in the country (/«).]
[In order to obtain this office, there is commonly a certificate
from fome gentlemen of the country, that there is occafionfor
a mafter there, that the perfon who delires it is fit to be in-
truflcd. and conformable to the government («).] Which certi-
ficate is to the following effe£t.
To the right honourable the lord chancellor of Great Britain..
We whofe names are Hereunto fubferibed, viz. A. B.
of, &.c. E.F. of, &c. and A. II. of, &c. being three of his
majeity's juflices of the peace for the faid county of S., do
humbly certify your lordfhip, that 1. K. of the parifh of
L. in the faid county of S., is a perfon well qualified to be a
mailer in chancery for taking of affidavits in the faid county;
and that there is occafion for a mafter extaordinary in the faid
place, where he dwells, there being never a mafter extraordi-
nary near that place ; and that the faid I. K. is a perfon well
ane£ted to his prefent majefty and government. "Witnefs cur
hands this day of in the year of our Lord
ana in the year of the reign
of his majefty king George the third. A. B.
E. F.
A. H.
(/) 9 Vef. 349. (m) V/y. Praft. Rug. 282, («) Ibid.
Vol. I. C Thi
i$ THE OFFICERS OF
This certificate you carry to one of my lord chancellor's
fecretaries, who procures a fiat to be fi-gned under the certi-
ficate by his lordihip, which you carry to the clerk of the
crown, and he makes you out a commiffion appointing fuch
perfon to be a Mailer in chancery Extraordinary. The whole
fees thereof come to about fevcn pounds. And when the
Mailer in chancery Extraordinary has got the commiflion, he
is obliged within a month after the date thereof, to take the
oaths of allegiance and fupremacy.
If the perfon to be appointed a Mafter Extraordinary is to be
fworn in as fuch in the country, the clerk of the crown makes
out a commiflion to commiilioners with the oaths of allegiance
and fupremacy to be adminiftered to the party ; which being
adnuniftered the commifiioners return the commiflion with an
atteftation of the execution on the back thereof, figned by them,
to the clerk of the crown, who thereupon makes out acertiiicateon
double fixpenny (lamp paper, and figns the fame ; andthecxpence
where it is^by commiflion in the country amounts to near 9 1.
[Formerly thefe Mailers Extraordinary were reftrained from
doing any thing incident to their office within five miles only of
London; but by an order (p) of lord chancellor Clarendon,
they are now reftrained from doing any thing within twenty
miles of London ; and that it may appear whether they do or
no, they are in the caption (which is the mailer's certificate)
to exprefs the name of the town, and county where they fhall
take any affidavits, or the acknowledgment of any deed or
recognizance ; otherwife the fame fhall not be held authentic ;
nor be admitted to be filed or enrolled.]
[It feems neceflary, that not only the time but alfo the place
be inferted in the caption of an affidavit, and that not for the
aforefaid caufe alone, but that if the party has made a falfe
oath, it may be certainly known, where tire indictment, &c.
is to be laid (q).~]
[Commiilions are frequently granted to take the acknow-
ledgment of a deed in the country, though it is faid the Mafters
Extraordinary claim it as their right (r).]
Six Clerks in Chancery are of ancient continuance, and they
were heretofore fpiritual perfons, as may appear by the flat.
34 & 15 H. S. — Since the reign of R. 2. the reputation of
their office hath fo much increafed, that they have been
fpecially afligned amongft other officers to attend at the king's
coronation, as appears by the records of the herald's office.
They are principally concerned in matters of equ'ty ; and
tranfaft and file all proceedings by bill and anfwer ; and alfo
ilTue fome patents that pafs the great feal, as pardons of men
(*} Ord. Can. 58. (?) Wy. Pr'aft. Reg. 283. (r) Ibid.
■ ' foi
THE COURT OF CHANCERY. ip
for chance-medley ; patents for ambaffadors, flieriffs patents^
and fome others : and all thefe matters are tranfacTred by their
under clerks, or others by them appointed. They likewife
fign all office copies in order to be read in court, and alfo
certificates, and attend upon the court in term, by two at a
time, at Weftminfler, and there read the pleading.
The bufinefs of the office is done by their under clerks, each
of which has a feat in the office, and whereof every fix clerk
has a certain number, ufually about ten (j), befides two wait-
ing clerks in each divifion ; all which are accountable to their
refpecYive fix clerks for the bufinefs they tranfatt.
At this day they employ deputies in their abfence (ufually a
fworn clei'k, or a waiting clerk of their own divifion) to file
the proceedings, and to iign office copies and certificates.
Formerly there was an order (/) for dividing the bufinefs
among the fix clerks, which being found to be inconvenient to
the fuitors, was vacated and difcharged : and all clients are
now at liberty to choofe their own attornies and clerks (w).
Note ; befides the fees in the fix clerks office there are alfo
feveral others which are claimed and taken by the fix clerks as
comptrollers of the hanaper, and for inrolling the warrants for
patents, grants, and other matters puffing under the great feal,
and returned into the hanaper office ; moreover the fix clerks,
and the three clerks of the petty-bag are by letters patent
granted by queen Eliz. in the 16th year of her reign, incor-
porated by the name and flile of the clerks of the inrollment of
the high court of chancery, and have under them two deputies
who officiate.
With refpecl to fworn Clerks and 'waiting Clerks it is to be ob-
ferved, in order to be qualified for clerks in court, one mult be
articled to a (x) fworn clerk, and ferve him (y) five years in the
fix clerks office, and at the expiration of their clerkfhips, they
are to be examined by the mafter of the rolls, and if approved of,
they are thereupon admitted, and fworn in before his honour, to
the good and faithful execution of their office, and thereby
(j) [Formerly there were ninety be purchafed at the end of three
fworn, but they are now reduced years, and after two more a fworn
to the ancient number of fixty.] clerk's feat. But a waitrig clerk
(/) W. Praft. Reg ioj. cannot take an articled clerk.
{tv) W. Prad. Reg. 105. [No fworn clerk fhall have more
(x) For this oath fee the flat, than one articled clerk at a time :
18 Ed. 3. to be taken not by the nor take a fecond till the firfi: be
fix clerks only, but by all other preferred in the office or dif-
officers in the chancery, of the charged by the appointment of
like quality, and their fervants the lord keeper or mafter of the
alfo- rolls. Ord.Cha. 195, 4 edit.]
Jijf) Awaiting clerk's feat may
C 2 become
ILih OFFICERS OF
become fwoxn clerks of this court, and aft as fuch, and are
allowed to have freeholds [i. e. feats] in the fix clerks office,
and to vote for parliament men in Middlefex. And all fuitors
of this court muft employ one of the fworn clerks, or one of
the twelve waiting clerks practifing in the faid office, to ac~t as
clerk in court.)
They make out all writs both fpecial and common, and all
procefs (except fubpecnas) in all caufes, depending on the
equity fide of this court, wherein they are respectively em-
ployed. They claim a right to, and as occafion requires, have
the cuftody of all records relating to eaufes there, of which
records they make copies for their clients. They alfo engrofs
bills, anfwers, &c> (if not done by their clients or folicitors)
and attend the court and mailers in chancery as occafion
requires, and draw and inroil the decrees of the faid court,
and alfo make copies of all depoiitions taken by commifiion in
the country, &c. And they give their attendance not only in,
term-time, but alfo in the vacation, by themfelves or agents.
All office copies of pi-oceedings made by them are to contain
fifteen lines in every iheet, and fix words in every line, writ
orderly ; and are to be figned with the name of the fix clerk
to whom they belong, by himfelf or deputy, or otherwife
they ihall not be made ufe of in court. Ord. Cane. 83.
No under clerk is to be deprived or fufpended but by order
of the lord chancellor, &c. (z). By this order likewife the
fees or copies of bills, anfwers, pleas, &c. and for writs, corn-
millions, and exemplifications, are limited ; as to be divided
between the fix clerks and under clerks ; and the under clerks
are to pay, and be accountable to the fix clerks for their fees,
or give notice of the name and place of abode of clients in.
arrear, in their difeharge.
[Under the order above mentioned, the fix clerks are entitled
to receive their proportion of the fees from the fworn clerk,
though he may have given credit to the client (a).] ;
[None ought to fit or write in the fix clerks office but the
fix clerks, fworn under clerks, and waiting clerks, and their
clerks or agents ; and no mailer of the court is to deliver any
anfwer, plea, See. to any perfon but fuch clerks ; and no fix
clerk lhall deliver any bill, anfwer, &c. to any perfon but a
fworn under clerk, or waiting clerk or their refpe£r.ive agents %
alfo no fworn clerk is to deliver any bill or anfwer, &c. other
than to his refpeclive deik or agent, for whom he Ihall
anfwer (£).]
(») Ord. Can. 130, 4 edit. (h) Ord. Can. 182 and 138,
(«> 3 Vef. J. 589. vide Ord. 4 edit.
Can. 238, 4 edit. ' The
THE COURT OF CHANCERY. 21
The Reg'ijler (c) is a place of great importance in this court..
He holds by letters patent, and hath feveral deputy regifters
under him, who fit in court by turns, and take notes of all
orders and decrees made in court ; and accordingly draw up
the orders, which are to be entered in this office *, but before
they be entered they are to be paffed, [i. e. to have the hand or
mark of a deputy register to them.]
Rules and attachments are alfo to be entered in his office,
by one of the entering clerks. See more hereafter.
In his office are filed all reports from the Matters upon re-
ferences, and all exceptions taken to any of the faid reports.
The R.egifters are not to enter any plea or demurrer in the
paper, unlefs the order for it be brought to be drawn up at leafl
four days after fuch order is pronounced for arguing fuch plea,
or demurrer, he. and afterwards no alteration fhall be made.
Minutes of decrees, 8cc. taken by ths Regifters, are to be
read in open court, that if there be any miflakes, the counfel
may fpeak for rectifying them while frefh in memory {d).
By flat. 12. Geo. I. cap. 32. two orders of the court of
Chancery, in the act (tt forth, are confirmed, and thereby
{inter alia) it is directed, that all fecurities belonging to the
fuitors of the court to be delivered out of the bank, are to be
certified by the Regifter to the Mafter, what fecurity is to be
delivered out, together with the numbers, dates, and funis of
fuch fecurities, and the name of the caufe wherein the fame is
to be delivered out.
When flock is likewife to be transferred to fuitors, the
Regifter is in like manner to certify.
And when it is to be paid out of the bank to fuitors, &c.
the chequer note on the bank for payment mutt be counter-
figned by the Regifter.
[The court will commit a party guilty of an a£r, of violence
in the Regifter's Office (if).
The Regifter's Office is in New Buildings in Chancery-
Lane.
In the Subpoena Office are made out all writs of Sukpcena, both
fpecial and common. The office is granted by letters patent ;
and the bufinefs is tranfa£ted by deputies.
The office is in Chancery-Lane.
(c) On an appeal to the lores, (J) Ord Can. 171, 4 edit,
the party is never put to prove (e) 8 Vei. 535.
the regifter's hand to a decree.
Mofely 3j.
C3 The
%i THE OFFICERS OF
The Rcgifler of Affidavits files and regifters affidavits, and
makes copies of the farrtej which are figned by himfelf or his
deputy j and he alfo iffues certificates under his or his deputy's
hand, when required on any extraordinary occafion.
Affidavits in this court are generally to be filed before ex-
hibited in court, or produced to ground any orders, writs,
8tc. Likewife copies are to be made by the Regifter ; and
no counfel, clerk, &c. (hall give any affidavit in evidence that
is not filed and regiftered in the affidavit office.
This Ofliice js alfo granted by letters patent (f)>
The Affidavit Office is in Staples Inn.
The Examiners are two in number, and have under them
feveral deputies, and copying clerks : They by themfelves, or
deputies, examine witnefles produced on either fide (being firft
fworn by a Mafter on interrogatories) take their depofitions,
and make out copies of them, and of the interrogatories,
where not by cornmillion in the country. And as cccafion re-
quires, they give certificates, and attend the court with any
deeds or writings left in their cuftody. And none but fuch,
clerks as are fworn, or their agents by them employed, fhall
make copies of depofitions, &c. which are to be kept private
In the office till publication be palled, &:<;.
The Examiners Office is in the Rolls-Yard in Chancery-Lane.
The U/her of the Chancery had formerly the receiving and
cuftody of all money ordered to be depofited in court, and
paid it back again by order, for which purpofe he attended on
the court ; which bufinefs was by order of the court vefted in
the Maft ers in Chancery ; but was taken from both the one and
the other by flat. 12 Geo. 1. and veiled in the Accountant
General.
To the Ufher it belongs to have the carriage of records ;
and by order of court, he or his deputy is to (g) deliver parch-
ment of due proportion to the under clerks for inroliing of
decrees, &c. (h).
The Accountam General is a new officer appointed by parlia-
ment (z), and Hands in the place of the Maftero a^d Ufher, and
fhall do all fuch matters and things relating to the delivery of
the fuiiors money and effects into the bank, and taking them out
by order, and keeping accounts with the bank, as by the orders
of the court of Chancery of the 26th of May, and the 4th of
November 1725, are to be done by the Mafters and Ufher.
And the Matters and Ufher were to make up their ac-»
(/) Ord. Can. 8, 4 edit. (i)' Ord. Can. 19, 4 edit.
(g) This is done by the clerk (i) Vide flat. 12 Geo. 1. c.32.
©f the chapel of the rolls.
cj count;*
THE COURT OF CHANCERY. 23
counts with the Accountant General, and pay Into the
bank all money, Sec. remaining in their hands, to be placed
to the account of the Accountant General ; aifo mortgages,
tallies, and fecurities in the Mailers' or L'iher's name in
truft for the fuitors, to be affigned to the Accountant
General, Sec. And mortgages taken by the direction of ne
court, for the benefit of the fuitors, mail be taken in the name
of the Accountant General, where:. 1 th pari liar truft is to
be fpecified ; and the Accountant General fhall not meddle
with the actual receipt and cuflody of the fu ney or
effects, but fhall only keep the account with the bank -, and the
bank is to be anfwerable for all money received by them^ ...ad
not the Accountant General, £cc
He holds his office during the pleafure of the court, which
is generally for life •, and the court of Chancery hath pewer tp
make further regulations relating to his office ; and"' forging the
name of the Accountant General, &c. to any cetificate, n
order to the receiving any of the fuitors money, is by the
faid ftatute made felony.
[One of the Mafters in Chancery is always appointed to this
office.]
The Accountant General's Office is in New Buildings in
Chancery- Lane.
The Curfttors are of a very ancient inftitution ; they are in
number twenty-four, and were incorporated by queen Eliza-
beth. They make out all original writs in Chancery returnable
inC.B. &c. and amongft thefe the bufinefs of the feveral
counties is feveraily diftributed by the Chancellor. In the ftat.
18 Ed. 3. rhey are called Clerks of Courfe.
[Thefe original writs pafied to the great feal through the
hands of an officer called the Clerk of the Hanape>:~]
The Curlitors Office is in Chancery-Lane.
With refpeft to the Clerks of the Petty Bag Office it is ob-
ferved that the principal clerks of that office are three in num-
ber, (of which the Matter of the Rolls is chief) and have
feveral clerks under them. They tranfadt great variety of
bufinefs, which requires knowledge and experience in the
practice of the law ; and have the making out writs of fum-
mons to parliament ; and commiffions directed to commiffioners
of every (hire for afleffing of fubfidics and taxes, as appears by
the Itat. 33 H. 8. c. 22., Conge de
the Crown in Chancery ; Clerk and Controller of the Hanaper;
Clerk for Inrpllmg Letters Patent, 8cc. not employed in pro-
ceedings of equity, but concerned in making out commiffions,
patents, pardons, &c. under the great feal, and collecling the
fees thereof: a Clerk of the (k) Faculties for difpenfations,
licences, &c-- Clerk of the Prefentations for benefices of the
crown in the Chancellor's gift ; Cleik of (/) Appeals, on ap-
peals from the courts of the Archbifhop to the court of Chan-
cery •, and clivers other officers and clerks, who are conflitu-
ted by the Chancellor's ec-mmiffion or letter, and they are
to attend the lord Chancellor for particular purpofes, and on
particular occafions ; fuch as the Sealer of Writs, kc.
Others areganted by patent from the king ; as the Clerks for
writing Licences. of Alienation, Writs of Licences of Protection,
and many others of a like nature. And fome are ordained by
Parliament to be nominated and conllituted by the King's
Letters Patent j fuch as the "Writer and Inroller of Confirma-
tions of all Licences, am! Eifpenfations, as fhall be brought
into Chancery under the Archbifhop of Canterbury's feal, -&c,
(}.) Vide 25 H. 80 c. ao, (/) Vide 25 K. 8. c, jo. fea, ^
THE COURT OF CHANCERY. 25
CHAPTER THE THIRD.
Of parties to a fiiit.
A S the bufjnefs of this court is chiefly taken up in its ex«
"£*■ tracrditiary quality; we intend in the following treatife
intirely to coniine ourfelves to that branch
[It will be proper firft to confider the feveral perfons who are
capable of exhibiting a bill by themfelves, or under the protec-
tion, or in the name of, others. Suits on the behalf of the crown,
and of thole who partake of its prerogative or claim its peculiar
protection are inftituted by officers to whom that duty is attri-
buted. Thefe are in the care of the crown, and of thofe whofe
rights are objects of its particular attention, the king's attor-
ney or folicitor general («), and the bill they exhibit is by way
information (£).]
[If the fuit does not immediately concern the rights of the
crown, its officers depend on the relation of fome perfon,
whofe name is inferted in the information, and who is termed
the relator. Where it happens that this perfon has an intereft
in the matter in difpute, his perfonal complaint being joined
to and incorporated with the information, they form together
an information and bill, and are fo termed. But if the fuit
immediately concerns the rights of the crown, the information
is generally without a relator ; and where a relator has been
named, it has been done that the court might award cofts
againft the relator, if the fuit mould appear to have been
improperly inftituted, or in any ftage of it improperly con-
duced (r).]
[The attorney general need not be a party to a bill re-
lating to a private charity ; fuch as a voluntary fociety to
provide for the members and their widows by weekly con-
tributions (d)]
[Where a legacy was given to a charity, upon a bill for
an account, it was held neceffary to make the attorney general
a party (*).]■
[In a bill to eftablifh a modus where the re£!ory is an elee-
mofynary foundation of which the king is vifitor, the attorney
general need not be a party (/ ).]
(^ R. v/Wilkes, 4Burr. 2537. {d) 3 Atk 277.
(6) Mitf. 22. 1 Vern. $70. ' (*. 4 Br . C. C. 3$.
(0 Mitf. 23, (f) 3 Anft. ]68.
Z 6 OF PARTIES TO A SUIT.
[It is not abfolutely necefiary that relators in an information
for a charity mould be perfons principally interefled; anyper-
fons, though the moft remote in the contemplation of the
charity, may be relators (g).]
[The queen confort, partaking of the prerogative of the
crown, may alfo inform by her attorney (£).]
[Bodies Politic and corporate may by themfelves alone exhi-
bit a Bill (/).]
[A corporation may join in a fuit to eftablifh a claim of ex-
emption from tolls, in favour of its individual members (£)•]
fThofe who are incapable of exhibiting a bill by themfelves
alone, are infants, married women, idiots and lunatics.]
[A learned writer (/) obferves, with refpect to the difabilities
arifmg from outlawry, excommunication, conviction of popifh
recufancy, attainder, and alienage, and thofe which formerly
arofe from villenage and profeflion, thatfuch of them as fubfift
do not, and the others did not, abfolutely difable the perfon fuf-
ferin^ under them from exhibiting a bill ; that outlawry, ex-
communication, and conviclion of popifh recufancy, are not in
fome cafes any difability ; and where they are a difability, if it
is removed by reverfal of the outlawry, by purchafe of letters
of abfolution in the cafe of excommunication, or of con-
formity in the cafe of popifh recufant, a bill exhibited under
the difability may be proceeded upon - y that attainder and '
alienage no otherwife difable a perfon to fue, than as they de-
prive him of the property, which may be the objecl: of the
fuit j that villenage and profellion were in the fame predica-
ment.
[It may be doubted, however, whether the learned writer is
correct in his obfervation on the effecl; of attainder. Lord Coke
certainly confiders attainders to create a perfonal difability to
fue in a court of juftice ; his lordihip faying, that every perfon
that is attainted of high treafon, petit treafon, or felony, is
■difabled to bring anaftion, for he is extra legem pofttus, and is
accounted in law civiliter mortuas (;«) .]
(The chancellor may fue or be fued in equity •, but he can-
not make a decree in his own caufe. (?/).]
[A bill may be exhibited againfl all bodies politic and corpo-
rate, and all perfons as well infants, married women, idiots,
3nd lunatics, as thofe who are not under the fame difability,
excepting only the king and queen {o).~\
Q) 2 Atk. 328. 1 Vef. J. 24.6. (/) Mitf. 24, in the note.
\h) 2 Rolle Abr. 213. (fit) Co. Lit. 130.
(h Mitf. 24. («) ! 7 q Ca. Abr. 71.
(i}3 Anft. ft«. (»)M»tf. 29.
[It
OF PARTIES TO A SUIT. 27
[It is the ufual practice to make fuch of the individual
members of a corporation parties, as are fuppofcd to know any
thing of the matters enquired after in the bill (/>).]
[In a bill againft the Eaft India Company, one of the offi-
cers of the company was made a defendant in order to diicover
fome entries and orders in the books of the company : a demur-
rer becaufe he was not interefted in the quellion, alfo becaufe
his anfwer could not be read againft the company, and the
plaintiff might examine him as a witnefs, was overruled ().]
[But in a bill for a fale, the perfonal reprefentative of the
mortgagor mull be a party, for the perfonal eltate mud be ap-
plied, before the court will decree the real eftate to be fold (7}.]
[Where there is one mortgage of freehold and of leafehold
effates, and the mortgagor dies, both heirs and executors mult
be parties to a bill of foreclofure (>•).]
[If the mortgagor become a bankrupt, he is not a neceffary
party ; it is fufficient to bring the affignees before the court(j).]
[The court ordered a bill of foreclofure to (land over to make
a judgment creditor, the only incumbrancer not before the
court a party (t).~]
[It is the ufual and common practice, almofl without excep-
tion, to make all incumbrancers parties (v). S$uere whether it is
abfohitely neceffary to make all the incumbrancers fubfequent to
the plaintiff 's parties (w).]
[Where a debt is joint and feveral, the plaintiff muff bring
each of the debtors before the court (x) ; becaufe they are
entitled to the affiftance of each other in taking the account,
and becaufe the debtors are entitled to a contribution, where
one pays more than his fhare of the debt (y)-~\
[But if one of the co-obligors has died infolvent, and thi»
fact plainly appears in the caufe, there is no occafion to bring
his reprefentative before the court (3).
[If it appears by the anfwer of the principal debtor, that
the other obligors are only fureties, and that no part of the
debt has been paid by the fureties, the principal cannot objeel
for want of parties (a).
[It is not neceffary in every cafe of alignment, where all
the equitable intereft is affigncd over, to make a perfon who
has the legal intereft a party ; but if an obligee has affigned
(n) Call v. Mortimer, 8th July -(v) 3 Vef. 317.
j-91. (iu) 2 Vern. 518. I Cha. Ca.
(o)iBro.C.C. 368. 299.
(p) 3 P.W. 333. (x) Sed vide 2 P.W. 313.
(q) Daniel v. Shipwith, MSS. (y) 3 Atk. 406. 2 Vent. 348.
(r) Robins v. Hodgfon at the 2 Dick. 738.
rolls. 1 <|th February 1794. (») 3 Atk. 406.
(s) Adamsv. Holbrooke, MSS. (a) 3 Atk. 406.
(03 Vef. 314.
over
OF PARTIES TO A SUIT. 31
ever a bond and a prefumption of its being fatisfied arifes from
the great length of time, as in a cafe where a bond is given in
1709, and affigned over in 17 17, and no demand made, till the
bringing of the bili by the affignce in 1739, the reprefenta-
tive of the obligee mult be made a party, becaul'e it is poflible
the obligee himfelf may have been paid (£).]
[A bond had been given by the defendant to S. and by
him affigned to the plaintiff; on a motion for aw exeat againft
the defendant, lord Thurlow refufed the fame ; becaufe the
reprefentative of the original obligee was not before the
court (r).]
[An infolvent debtor is not a neceffary party to a bill by a
purchafer of his intereft in ftock againft the affignee (d).~]
[A leffee of water works affigned over the leafe in truit for
fuch perfons as fhould buy lhares therein. On the original
Jeffee becoming infolvent, and the rent in arrear, a bill was
brought againft the affignees, and others who had bought
(hares, to have the arrear of rent and the growing rent, and the
performance of covenants. The objection that the original
leffee was not a party was allowed, but the objection that
all the fharers were not parties was difallowed ().]
[At law, where there^are feveral executors, and one only
prove, and the reft renounce, they muft be all parties ; for
notwithstanding fuch refufal, they may adminifter after, at
their pleafure. Eut if all refufe before the ordinary, and
the ordinary commits adrniniftration to another, there they
cannot afterwards adminifter () 3 PAV. 331.
(0) 1 Cha. Ca. 27".
[A father
OF parties TO A SUIT. 33
[A father by his will appointed an executor durante miyore
estate of his daughter, and that fhe fhould be the executrix,
when (he comes of age ; the daughter, turned of twenty-one,
was brought alone before the court, though it appeared in the
caufe, that the executor durante minor* atate had collected the
greateft part of the perfonal eftate. Held that the latter muft
be before the court ; but that it would not have been neceflary,
it the daughter had received all the teftator's perfonal eftatc
from the hands of the executor minore at ate upon an account
between them {s).~\
[A mother of a baftard child by her will gave all her per-
fonal eftate to her child, and made B. and C. executors. The
mother died, and alio the baftard died without wife or iflue.
One of the executors brought a bill againft the mother of her,
who was the mother of the baftard, and who had in her hands
the portion belonging to the baftard. Demurrer, becaufe the
adminiftrator of the baitard and the Attorney General in right
of the crown ought to have been parties was over-ruled, as
the executor of the baftard's mother was legally entitled to the
perfonal eftate of the teftatrix, and could give a good difcharge
to the defendant (/).]
[In a queflion between the heir of a hufband and his widow
who claimed a chofe in adtion of hers as being undifpofed of
by her hufband, there was an objection ma.ie for want of
parties, for that the adminiftrator jof the hufband was not a
party ; but the wife being called adminiftratrix in the bill, and
having by her anfwer confeffed that (he had poffeffed the per-
fonal eltate and difpofed of it, and being the perfon by law
entitled to adminiftration, though denied by anfwer that fhe
had taken out adminiftration, the court over -ruled the objec-
tion (v).]
[The teftator gave legacies to his wife, and to his daughter,
and alter fome other legacies, gave one third of the refidue of
his perfonal eltate to his wife, and the remaining two thirds to
his daughter, appointing his wife and brother executors. A
bill was brought by the hufband of the daughter againft the
defendant, who had married the widow of the teltator, for an
account of the perfonal eftate of the teltator. At the time of
bringing the bill the Widow of the teftator and his brother v\ere
dead, fo that there was no executor or adminiftrator of the
teftator a party to the bill : for which reafon the defendant
demurred to the bill j and it was allowed (w).] •
(s) 2 Atk. iai. („) Pre. Cha. 6x.
(0 jP.W.32. ( W j 3 P;\V. 348.
Vol. I. D [In
24 OF PARTIES TO A SUIT.
[In the laft cafe the wife of the plaintiff afterwards took out
letters of adminiftration to her father, and charged the fame, by-
way of amendment to the bill ; and it was held that was
fufHcient, that fhe had now taken out letters of adminiftration ;
which when granted related to the time of the death of the
inteftate, like the cafe when an executor, before proving the
will, brings a bill, yet his fubfequent proving the will, makes
fuch a bill a good one, though the probate be after the filing
thereof (x).]
[The executor in all cafes fuftains the perfon of the teftator
to defend the eftate for him, creditors and legatees (y).~\
(Where a bond creditor brings his bill againlt an executor
for an account of afiets and for fati^fa£tion, it is no ob-
jection for want of parties, to fay that he has not brought
other bond creditors or creditors of a fuperior nature before the
court j for any one bond creditor may bring his bill, and thf
court decrees only an account, and directs the executor to pay
in the courfe of adminiftration ; and then the executor before
the matter may fet forth, as he is conufant of the ft ate and
condition of his teitator, what debts are prior to the
plaintiff's, which he is obliged to pay as having a legal
preference (z)-]
[A. going to fettle his affairs, upon the fame day makes two
inltruments, one called a deed by way of agreement between
him and the defendant, and the other he called his will ; by
the former he puts 4000 1. into the hands of the defendant, to
pay an annuity to A. for life, and afterwards 1000 1. a-piece
to other perfons, and an annuity to A.'s houfekeeper if fhe
furvived him ; the refidue to the defendant. By his will A.
makes the defendant executor and refiduary legatee. After
A.'s death, the defendant made fome payments ; but difcon-
tinued them upon notice of a bond creditor, which occafioned
a bill by the three perfons claiming the benefit of the truft in
in the deed. It was objected that they had not made the bond
creditor a parly, who had alfo filed a bill. But the objection
was not allowed (a).]
[The general rules are plain, that a creditor of the teftator or
inleftate, need not make any body but the perfonal reprefenta-
tive a party j at the fame time if there are any perfons who have'
poffefTed the eftate, or any debtors of the deceafed, and any
collufion between them and die representatives, they may here
(x) 3P.W.550. (a) iVef. 131. 2 Eq, Ca.
ly) I Vef. 129. Abr. 353.
(*)3Atk. 57 i.
. Z make
OF PARTIES TO A SUIT'. 35
make them parties, and demand an account againd them.
Thus where the widow or reprefer.tative of a perfon brought a
bill for an account againd the furviving partner of her late
huiband ; and her brother, who was the creditor of her huf-
band, alio brought a bill againlt Inch partner lor an account.
The court decreed an account between the plaintiif' in' the
fecond caufe, and the partner (£).]
[A legatee where there were many legacies, fued for his
legacy, the executor lets forth, that there were divers other
legatees, and that there were not fulheient allets to pay all, there-
fore infilled that the other legatees might be parties, that they
might come into the account and abate equally ; but that the
lord Chancellor thought no objection (c).]
[A legacy of ieol. was given to the wife of the plaintiff,
and a like legacy to the defendant her brother, and to two
more of her brothers, with a refiduary bequed to them four
equally. Two of the brothers had received theirlegacies. But
the plaintiff's wife had not received her legacy. The defendant,
demunedfor that the two brothers who were refiduary legatees
were not made parties to this bill. But the court over-ruled
the demurrer as to the legacy, and allowed it as to the fhare
of the refiduary part (el).']
[On a bill by lome of the refiduary devifees on behalf of
themfelves and other devifees, lord Chancellor Thurlow held
that all the devifees mult be parties (*).]
[The bill was to have an account of a truft ; the defendant
pleaded that he was intruded for three children, viz. for the
plaintiff and his two brothers, and that the other two not being
made parties to the fuit he was not bound to anfwer ; for other-
wife he might be thrice called to account for the fame matter j
and the plea was allowed (g ).]
[A bill as to a moiety of a refidue, the other moiety was
given to A. for life, and upon her death to fuch perfons as
ihe fhould appoint, and in default of appointment, to certain
ether perfons ; thefe perfons mud be parties (£).]
[Where a real edate is in the hands of a trudee and the
trudee conveys it over to another, who has no notice
of the truft, if the bill is brought by cejluique trujl, the trudee
mud be made defendant (/).]
(c) 2
Vef. 105. Mof. 126. (0 3 Bro. C. C. 361;.
2 Cha. Ca. 178. (g) 1 Vern, 110.
(d) Finch 243. 2 Cha. Ca. 124. (//) 3 Bro. C. C. 229.
Nelf. 243. (1) Barnard 325.
D 2 [A bill
3 6 OF PARTIES TO A SUIT.
[A bill was brought by one trufeee of flock againft the
othei-, to compel him to replace it, or give fecurity accord-
in? to his engagement when the plaint. ff joined in transfer-
ring the ftcck into his name ; a demurrer becaufe the
<:ejluique truji were not parties was over-ruled ; for what-
ever demand the cejiuique trujl would have, they could never
found themfelves upon the cafe the pvefent plaintiff makes
againft the defendant (k).
[Marriage fettlement having been made of certain lands an
the hufband for life, remainder to the wife for life, with divers
remainders over, a bill being brought by the hufband, to have
the opinion of the court, whether a certain parcel of land was
not intended to be included in the fettlement j held that thi
wife was anceeifary party (/).]
[In fome cafes, as in the inftince of creditors feekmg an
account cf the eftate of their d~ceafcd debtor for payment of
their demands, a few Cuing on behalf of the reft, may fub-
ftantiate the fuit, and the other creditors may come in under
the decree (m).] -
[A bill was brought by the treafurer and mrnager of a brafs
work, in behalf of themfelvea and all other proprietors and
partners in the laid undertaking (eicept the defendants,
who were the late manager and treafurer), to call them to
.an. account touching the partntrfhip. Defendants demurred
becaufe all the reft of the proprietors were not made parties }
demurrer was over-ruled («).]
[Where all the perfons inlerefted are not made parties, yet
if there is fuch a privity between the plaintiffs and defendants,
that a complete decree may be made, the want of parties will
not be an objection. Thus a bill may be brought by a lord
of a manor againft fome of the tenants, or by fome of the
tenants againft the lord upon a queftion of a common ; or by
a parfon for tithes againft fome of the parifhioners, or by fome
of the parifhioners againft the parfon to eftablifh a modus (o) ]
[There is a cafe in the book referred to (p)> which fays, that
if a bill is brought to eftablifh a general modus through a whole
parifhj all tire land owners muft either be plaintiffs or de-
fendants ; but if the parfon fues for tithes in kind, defendant
may infill on fuel: a modus, though the reft of the parifhioners
are not made parties.]
[One owner of lands in a tovvnfhip may fue for himfelf
(k\ 3 Vef. 75. («) Pre.Cha. 592.
(/) 1 Atk 'by. (0) MM 3 Hi
\m) Mitf. 145. (/>) Wy. Pract. Reg-. 3 n.
and
OF PARTIES TO A SUIT. 37
and the other land owner,, to eftablilh a contributory
modus (q). j
£ln a bill by a vicar to cftablifh a right to an annuity of 40 j.
a year out of particular lands, againft the land-holders, it is
not necefiary that the occupiers as well as the land-holders
fhould be made parties to the bill (V).]
[In a bill to eftablilh a cuftom whereby the owners and occu-
piers of certain lands in a parifh were obliged to keep a bull
and boar for the ufe of the parifhioners, the owners of the
inheritance muft be parties (.«).]
' [A bill wk's' brought by a leffee under a dean and chapter,
againft a lord of a manor and the tenant of a pavticuh :•: houfi ,
that it might be pulled .'.own, as it obftruftecl the plaintiff
way to the fields, and to be quieted in his pcfiliiicn ; the
dean and chapter miiil be brought before the court (/).]
[One charged all his lands in the parilhee of A. and B. with
20 I. a year to the poor of B. -, on information being brought to
make divers lands in B. liable to the charity leaving out the A.
lands. Held that in conlequence of the diftanee of time, it
was not necefiary to make the owners of the land in A. parties,
unlefs it was infifted on in the anfwer, and the particular
owners fhewn ; but that the owners of the lands in B. ought
to take the labouring oar on themfelves, to find out the A.
lands, and briiig their bill for that purpofe if they think
fit ( V ).]
[It is a general rule, that no one need be made a party
agam.fi whom, if brought to a hearing, the plaintiff car. have
no decree [iv). Thus in a bill brought by the creditors of a
Anftr. 768.
Gilb. Rep. 230.
<0 Gil
{s) Bunb. 181. [Note. The
general rule requiring all perfons
interested to be parties, is dif-
penfed with, where it is impracti-
cable, or extremely difficult. As
in the inftance of a perfon having
at law a general right to demand
from the individuals of a large
diftrict not to grind corn for
their own fubfi Hence, except at
his mill. To bring actions agair.it
every individual for fubtrajfling
that fervice is regarded ae per-
fectly impracticable ; therefore
D 3
when a bill is filed to eftablilh
that right, it is not necefiary to
make all the individuals parties.
11 Vef. 420, 4M-]
(0 1 Atk.5,5
{%) 1 P.W. 509. [On zg-.nerai
objection by the anfwer to an
information that all the terre-
tca.'uS of the prcmifes charged
With the charity are not parties,
the court directs. Inquires what
lands, &c. are charged, previoufly
deciding the Wn&fyofthis charge
againft the defendants before the
court, iiVezeyj65.]
(•zv) Barnard ,324. 2 Atk. J.44.
bankrupt
3» OF PARTIES TO A SUIT.
bankrupt againft the ailignees under .the commiiTion, the banL-
rupt himfelf need not be made a party (#).]
[But where bills have been filed to impeach deeds on the
ground of fraud, attornies who have prepared the deeds, and
other perfons concerned in obtaining them, have been frequently
made parties for the purpofe of obtaining a full difcovery ;
and no cafe appears in the books of a demurrer by fuch a
party, becaufe he had no claim of intereft in the matter in
queftion (v).]
[There have been cafes, where agents to fell and auctioneers
were made parties without objection. But thofe cafes are
upon cafes for relief (2).]
[But to a bill for a difcovery, a mere witnefs cannot be a
defendant, except in the cafe of a corporation («).]
But none need be parties to a bill, except thofe that may be
bound by the decree. And great caution ought to be ufed in
making defendants to a bill ; for if it be matter of evidence
whereby to make a difcovery, you will be obliged to pay
them their cofts ; and another thing, you deprive yourfelf
of their evidence ; for it is a conftant rule of this court
that the aniwer of one defendant cannot be read againft
another, and efpecially when it does not appear that they
have any thing in their cuftody, nor pray any thing againft
them, for then they may well demur to the bill. 3 P.W.
311. S. P.
[If a fufficient reafon for not bringing a neceffary party
before the court is fuggefted by the bill, as if the party be
Tefident out of the jurifdi£tion of the court, and that fa£t is
charged ; or if a perfonal reprefentative is a neceffary party,
and the reprefentation is charged to be in litigation in the
ecclefiaftical court, a demurrer will not hold (/>)•]
[If a proper party be beyond fea, upon an affidavit of that
fa£t, and that is not known whether he be dead or alive,
the plaintiff" fhalthave a decree againft the other defendant with-
out prejudice (c).~)
[A bill charged T. to be out of the kingdom, but that did
not appear in proof, otherwife than by the books of the
defendant W., which he produced in evidence, in which T.
{x) 3 P.W. 3 10, in Note. (c) Pre. Cha. 83. 1 Vern.487.
(y) Mitf. 153. 2 Vef. J. 641. Bunb. 200.
(*) 7 Vef. 289. id) 1 Vef. J. 416.
(a) 7 Vef. 287. (f) 1 Ca. Ca. 197.
(6) Pre. Cha. 83.2 Atk.510.
.:,Atk. 51.
was
OV PARTIES TO A SUIT. 3<>
was ftah.d to" be a merchant at P. in America. The de-
fendant B. whom the plaintiff examined as a witnefs, fworc,
that he knew T. late a merchant at P. Held that this was
i'ufficient evidence that T. was flill at P., and to preclude the
objection that he was not a parly (<•/). J
[If a bill leeks a difcovery of the parties interefled in the
matter in queftion, a demurrer for want of the necefiary
parties will not hold (e).]
[The want of proper parties, if it be apparent on the face
of the bill, is a fubjeel: of a demurrer. But if the defect:
does not appear in the bill, the defendant may plead the
necefiary matter to fhew it (/")•]
[And this objection likewife may be made at the hearing of
thecaufe ; and the court "will order the caufe to {land over,
that the neceffarv party may be added (#).]
[The rule is, that the objection for want of parties ought to
be upon opening the proceedings, and before the merits are
difclofed. But it is frequently known, that after a caufe is
gone into, and evon thoroughly heard, yet the court is com-
pelled to let it ftand over for want of parties. Therefore the
objection, though it is not taken in time, muft have its weight,
becaufe otherwife the court cannot on the one hand do juftice
to the defendant, and on the other, the court would be obliged
to difmifs the bill, which is never done now, though it was
attempted by Jofeph Jekyl formerly, but reverfed on appeal
to lord Chancellor King ; and fince that time caufes are ordered
only to ftand over on paying the cofts of the day, that
the plaintiff may have an opportunity of making proper
parties (£)•]
[But if, when the caufe comes on to be heard, the objec-
tion by defendants in the original caufe for want of proper
parties to the fupplemental, was not made in the firft in-
ftance, it will be too late to make the objection, when
the caufe comes on again, if it was put off for want of
formal parties by the court, in order that the decree might
be complete («).]
If one of the defendants is profecuted to fequeftration,
(tl) i Vef. J. 416. difmjjpj for want of a proper
(e) 2 Ch. Ca. 197, party, with cojls. And the reporter
(f) Mitf. 144. 220, adds that inftances were cited,
(g) 1 Atk. 289. where bills had been difmiffed
(Z>)PerlordHardwicke,3 Atk. for want of parties, as well as
no. Note. In Stafford v. the where caufes had been put off
city of London in Eafter Term only. Et vide 1 P.W.417
1 4 Geo. 1. 1 Stra v 9j. the bill was (/') 3 Atk. 217
D 4 the
4 o OF PATIES TO A SUIT.
the caufe may be carried on without him (k). Yet I think
in fuch cafe, if the fequeftration be for want of an anfwer
you muft obtain an order that the plaintiff's clerk in court
may attend with the record of the bill at the hearing, and the
court will then decree the bill to be taken pro confejfo again ft
that defendant fequeftered ; and at the fame time make fuch
decree againft the other defendants, who have anfwered> and
are brought to hearing as the court fhali think fit.
[Where the defendant did not appear, and procefs
was iffued againft him to a fequeftration ; the court decreed
the execution of a truft to pay debts againft the truftees, the
other defendants. 7 Vef. 206, et 1 Vera. 227.
(i) Mich. T. 1699. Parker v. Blackburn, 2 Vern. 369.
( 41 )
CHAPTER THE FOURTH.
The Form of original Bills for Relief.
A BILL in equity is in nature of a declaration at law,
wherein the plaintiff is to fet forth the circumftances of
his cafe, praying relief, and alfo procefs of fubpeena againll
the defendant to compel him to anfwer the charge of the bill.
[But in the cafe of a peer or peerefs, or lord of parliament,
the bill mult pray the letter of the perfen holding the great
feal, called a letter miflive, requefting the defendant to appear
and anfwer the bill, and the writ of fubpeena only, in default
of compliance with that requeft. And if the attorney general
is made a defendant as an officer of the crown, the bill mult
pray, inftead of the writ of fubpeena, that he being attended
with a copy may appear and put in his anfwer («).]
[It is ufual to add to the prayer of the bill a general prayer of
that relief, which the circumftances of the cafe may require.
Indeed it has been faid, that a prayer of general relief without a
fpecial prayer of the particular relief to which the plaintiff thinks
himfelf entitled, is fufficient (/•), and the particular relief which
the cafe requmes may at the hearing be prayed at the bar.
But this relief muft be agreeable to the cafe made by the bill,
and not different from it (c). As where a bill was brought for
an annuity or rent ciiarge of 10/. a year left under a will, and
the couniel for the plaintiff pray at the bar, that they may drop
the demand of this annuity, and infift upon the land itielf out
of which the annuity iflues ; but the lord Chancellor denied it,
becaufe it came within the above rule (d)-~\
[It is the practice to infert in a bill a general charge that
the parties named in it combine together, and with feveral
other perfons unknown to the plaintiff*, whofe names when
difcovered, the plaintiff prays he may be at liberty to iniert in
the bill. But a peer is never charged with combining with
others to deprive the plaintiff of his right (e).~\
[A charge of combination is often omitted in amicable
fuits(/).]
Where a perfon may be allowed to fct forth in a bill, par-
ticular inftances of combination (g).
(a) Mitf. 37. c. 3$. (c) Mitf. 40.
<*) 2 Atk. 3. (f) Wy. Pra&. Reg. 63.
(c) Mitf. 39. {g) Vide Barnard, 263 .
{d) 2 Atk. 141.
Where
42 ORIGINAL BILLS FOR RELIEF.
Where a particular combination is alledged in a bill, a par-
ticular anfwer mull be given to it (h).
[A bill niuftbe true in fubftance and plainly, yet fuccintly
alledged with all neceffary circumftance, as time, place, manner,
and other incidents (**,.]
[Whatever is effentiai to the rights of the plaintiff, and is ne-
ceiTarily within his knov.ledge,ought to be alledged pofitively and
with precifion ; but the claims of the defendant may be ftated
in general terms ; and if a matter eflentiai to the determi-
nation of the plaintiff's claims, is charged to reft in the know-
ledge of the defendant, or rauft of neceffity be within his
knowledge, and is consequently the fubjed of a part of the
difcovery fought by the bill, a precife allegation is not re-
quired (£).]
If a bill be exhibited where the lord Chancellor is a plaintiff
to the fuit, it muft be directed to the King's molt excellent
Majefty, and the word nwjejfy muft be ufed in the prayer and
concluhon thereof, inltead of lordfhip.
[Every bill muft be under counfel's hand, and if it be not,
or if the counfePa hand be counterfeited or difallowed, it (hall
be difmiffed on the defendant's demurrer (/).]
[On a certificate of the mafter to whom it was referred, that
the bill was not figned by counfel, the bill was ordered to be
taken of the file and fuppreffed, and the plaintiff to pay the de-
fendant cofts to be taxed (?«).]
[In cafe of a bill without counfel's hand, antiently it hath
upon motion been ordered, that the defendant fhould not
anfwer, till counfel had figned the bill («)•]
[A counfel is not to put his hand to a bill (or any other
pleading) unlefs it be drawn or perufed by himfelf in the
paper draught before it be engroffed ; and counfel are to take
care that the fame be not fluffed with repetitions of deeds, &c.
in hac verba, but that the fubftance of fo much of them only as
is pertinent, &c, and that in brief terms without long needlefs
traverfes or points not traverfable, Sec. Much lefs may any
counfel infert therein matter merely criminal or fcandalcus,
under penalty of good cofts to be laid on the counfel, to be
paid to the parties grieved, before fuch counfel, to be heard
in court (o).]
[If there be matter fcandalous in a bill, a mafter of Chan-
cery is to expunge it, and to tax cofts for the party fcanda-
lized •, but if on fuch reference the mafter reports the bill not
(h) Ibid. (m) i Dick. 68.
(i) Wy.Praft. Reg.57. (») Wy. Prad. Reg. 57.
(i) Mitf. 41. Cary.93.
(1) Prax. Aim. 1 vol. p. 3. (0) Old. Can. 93.
3d Edit. Cary's Rep. 82.1 Edit.
fcandalous,
ORIGINAL BILLS FOR RELIEF. 43
fcandalous, the party procuring fuch reference, fliall pay cofts
to the plaintiff for fuch his reference (/>).]
If fcandal or impertinence be contained in a bill, the de-
fendant is to move the court ; upon which he obtains an order
to have the bill referred to a mailer, and he to report whether
it be fcandalous or impertinent, which, if fo reported, the
court upon motion will make another order that fuch imper-
tinence or fcandal be expunged by the faid mailer, and that the
plaintiff fliall pay the defendant his cofts occafioned by fuch
impertinence or fcandal to be taxed by the faid mafter.
[A bill cannot be referred for impertinence after anfwer ; nay,
after fubmitting to anfwer, &c. as by praying time, &c. (q).]
[But for the fcandal you may refer it at any time. In Auguft
the defendant had obtained an order upon the fecond applica-
tion for three weeks' time to anfwer ; upon the 2d of Novem-
ber by a motion of courfe, he obtained a order to refer the bill
for fcandal and impertinence; upon a motion to difcharge it,
order was confined to the fcandal (r).]
[The fame diftindion between impertinence and fcandal pre-
vails in the exchequer (/).]
[If a bill is reported fcandalous, it muft be impertinent of
courfe : Nothing relevant is confu'.ered as fcandalous, otherwife
it would be laying down a rule that all charges of fraud are
fcandalous (/).]
[Upon the mafter having reported the plaintiff's amended
bill impertinent, the defended is entitled as a motion of courfe
to apply to the court, that the fix clerk with whom the bill
is filed, might attend the mailer therewith, in order that the
mafter might expunge the impertinent parts of it, and that it
might be referred back to the mafter to tax the cofts of refe-
rence, and that they maybe paid to the plaintiff(u).]
[Bills are not to be antedated ; but all are to be dated the
fame day they are brought into the fix clerks office (it;) ; no
under clerk fhall keep a bill by him ; but with the firft oppor-
tunity deliver it to the fix clerk or his allowed deputy to be
filed (»).]
(p y Ord. Can. 04. (A Bunb. 304. fed vide Bunb.
(?) 2 Vef. 631. 53. '
(r)5Vef. 656. vide 2 Vef. (/) 2 Vef. a^Gilb. For. Rom.
631. 2 P. W. 313. note. I Dick. 207,208,209.
173. It is, however, to be ob- (u) 4 Bro. Cha. Ca. 222.
ferved, that lord Chancellor King (w) Ord. Can. 93.
difcharged an order for referring (*) Ord. Can. 1,4.
a bill tor fcandal, the defendant
having fubmitted to anfwer,
aP.W. 31.
[The
44 ORIGINAL BILLS FOR RLLIEF.
[The Form of an original bill commonly ufed, confifts of nine
parts. Tne ift part is the addrefs of the bill to the perfon
holding the great leal. In the id place are contained the names
of the parties complainants and their defcriptions. The 3d
part, contains the cafe of the plaintiffs, and is commonly called
the dating part of the bill. In the 4th place, is the general
charge of confederacy againft the perfons complained of.
cthiy, if the plaintiffs are aware of a defence which may be
made, and have any matter to alledge, which may avoid it, the
general. charge of confederacy is ufuaily followed by an allega-
tion, that the defendants pretend or fet up the matter of their
•>, and by a charge of matter which may be ufed to avoid
it is commonly called the charging part of the bill,
s alio ufed for the purpofe of obtaining a dif-
cov of the nature of the defendants cafe, or to put in rflue
fome matter, which it is net for the intereft of the plaintiffs
to admit, for which purpofe the charge of pretence of the de-
fendant is held to be fumcierit (y) . The 6th part cf the bul
is intended to give jurffdieiion of the fuit to the court by a
general averment, that act. complained of are contrary to
eauity, and tend to the injury of the complainants, and that
they have no remedy or not a complete remedy without the
affiuance of the court. The bill in the 7th place prays, that
the parties complained of may anfwer all the matters contained
in the former part of the bill, and it has become a practice
to add to that general requifition, a repetition by way of in-
terrogatory of the matters mod effential to be anfwered. This
is commonly termed the interrogating part of the bill, and it
mult be founded on the matters contained in the former part
of the bill. But a variety of quefiions may be founded on a
fingle charge if they are relevant to it. The prayer of relief
is the next and 8th part of the bill, and is varied according to
the cafe made. 9th.lv, the bill prays, that procefs may iffue,
to require the defendant to appear and anfwer the bill.
Thefe are the formal parts of an original bill, as ufually
framed (z).]
3 Atk. 626, (z) Mitf. 41. 47.
A-.
CHAPTER THE FIFTH.
Bills of Interpleader (a.)
a BILL of interpleader is where two or more, claiming the
■*"* fame thing by different or feparate interefts,pray the judg-
ment of the court to which of them it belongs.
But that which is commonly called a bill of interpleader, is
that which is exhibited by a third perjfon, who not knowing to
whom he ought of right to rentier a debt or duty, or pay his
rent, fears he may be hurt by fome of the claimants ; and
therefore prays that they may interplead, fo that the court
may judge to whom the thing belongs, and he be thereby
rendered fafe on the payment : As where two parties are pre-
tending title at one and the fame time to an efface, and are
harailing and fuing the tenants for non-payment of rent
Or where a man holds flakes at a horfe-race, and the parties
can't agree who won the match, yet both fuing at law for the
money ~(b) ; and in many other cafes the party brings his bill of
interpleader for claimants to interplead amongft themfelves, to
whom the eftate or money belongs, and to prevent his paying
it twice over, and that proceedings againft him at law may-
be ftaid till the title be determined. And this he may do,
whether any fuits be actually commenced againft him in law
or equity, or is only in danger of being fued or molefted by
the parties. But to this bill he muft annex an affidavit that he
does not exhibit it by fraud or collufion with all or either of
the defendants, or of any other perfon or perfons, but only to
be indemnified, and to pay his rent or debt fafely, to
fuch perfon to whom this court {hall order or adjudge the lame
to belong.
Sometimes a bill of interpleader is, where one who is not
party in the firft caufe, fuppoics he has feperate intereft in the
matter in qutftion, and brings hfs bill agaii.ft the firft or other
defendant, praying to be relieved according to his right :
Whereupon the firft plaintiff makes the iecond a defendant, iu
order to interplead and conteft the right ; or, if the firft plain-
tiff does not make him a defendant] then the defendant may
(a) What perfons may bring (t>) In cafes of bailment the
this bill a , to copyholds or tenant parties may be compelled to in-
right eibtes. VUc Barnard.-— terplead at law, Mitf. 48. note.
Chan, Rep. 250.
exhibit
4 6 BILLS OF INTERPLEADER.
exhibit his bill againft all the other parties, and pray that they
may interplead, and that the court may order and decree to
which of them the thing in demand belongs, and further as
his cafe requires. Or, if there be no fuit here between the
pretenders, he, who has fuits at law brought againft him, or
is in danger of trouble from both the claimants, may file his
bill againft them, and pray that they may interplead •, and that
the proceedings at law againft him may be flayed till the right
be determined.
The plaintiff who brings a bill of interpleader commonly
offers by his bill to pay the money or rent into court, for the
benefit of fuch party to whom the court ihall adjudge the fame
to belong : And in cafe he does not make fuch offer, the
court, upon application of either of the defendants, will order
fuch plaintiff to pay the money or rent into court, or the bank
of England, for the benefit of fuch party to whom the court,
at the hearing of that caufe, fhall decree the fame.
[The practical regilter Hates, that the plaintiff* muft bring
the money into court, till which done, the court will not com-
monly order an injunction or fhew the plaintiff* any counte-
nance (c). Agreeably thereto, lord Thurlow was of opinion,
that in a pure interpleading bill the plaintiff never can proceed
compulforily by injunction till he has brought the money into
court ().]
[So where a bill of interpleader was filed by tenants againft
their landlord, and perforus claiming annuities fubfequent to
the leafe, the bill was fupported by fir Thomas Sewell, the
tenant being by the aft of the leffor entangled in a queftion
which he could not fettle ($')•]
[A bill praying that a modus might be eftablifhed, and that
the rectors of two parjihes might interplead, as to the tithes to
■veredby the modus, was difrniffed (r).]
[Jtn a cafe where a bill of interpleader was filed by leffees
lft feveral lets of annuitants, who had itiftrained for rent,
t.'ie rents having been paid into court, lord Thurlow directed
the plaintiffs to be paid their cofts out of the fund in court, in-
stead waiting the event ofthefuit, and recovering them againft
the parties who mould appear ultimately to be wrong in the
interpleader (;).]
[Lord Thurlow inBowfon v. Hardcaftle is reported to have
faid, that he knew no inltance of giving cofrs, as among the
defendants (t) . There are, however, feveral cafes in which
the court appears to have done it («),]
[It appearing in a cafe where a tenant filed a bill of. inter-
pleader againft. his landlord, and a perfon claiming adverfely to
the Iandl t the plaintiff colluded with that perfon, the
pkdr.tiff and his fclicitor were ordered to pay cofts, and the
folicitor to fhew.-ca.ufe why he mould not be itruck off the
Rolls (w).]
[An interpleading bill is exactly upon the footing of an in-
junction to ftay walte, and may be fupported by affidavit of
rial facts [x] ]
here the cburfe of the court is, that the party mud make
affidavit that there is no coHufion, the court cannot prefume
that -to be faM'e ; for if it is falfe he is liable to a profecution-,
much lefs can the court determine it to be falfe upon a counter
affidavit, (_>-).]
(0)2 Vef.J. 312. (0 I Vef. J. :<6S.
( p\ 9 Vef. 1 c 7 • (■') 9 Vei ' °7 » l ° 3 -
(q) Cited 9. Vef, 107. 2 Bro. \iv) 2 Vef. J. 3:3.
C.C. 149 '?*) 2 y ef- J. IOi -
fy) Anftr. ,?c 1 : (j, 2 Vef. j. ue.
(j) 2 Bro. C. C 149.
C 49 )
CHAPTER THE SIXTH.
Certiorari Bills*
\ Certiorari Bill in this court, is fuch whereby a fpecial writ
-^ of certiorari is prayed *, for removing a caufe from an
inferior court of equity, upon fuggeftion that the caufe is out
of the jurifdiclnon of fuch court ; or that the witnefles, or the
defendants live out of its jurifdi&i'on; or upon fome good
reafons given why equal jullice may not be had in fuch court.
So that a certiorari bill has fomething of the nature of an in-
junction bill, as to the jurifdicYion of inferior courts (a).
[This fpecies of bill, having no other object than to remove
a caufe from an inferior court of equity, merely dates the
proceedings in the inferior court, fhews the incompetency of
that court, and prays the writ of certiorari. It does not pray
that the defendant may anfwer or even appear, and confe-
quently it prays no writ of fubpccna (b) .]
Upon motion and a certificate from the Six-clerk that the bill
is filed, the certiorari writ prayed thereby will be granted bv the
lord Chancellor \ and it is commonly directed to the judge of
the inferior court, requiring him to certify, or fend to this
court, the tenor (c) of the bill or plaint there, with the proofs
and proceedings thereon.
Upon or before the receipt of the writ, the plaintiff muff
enter into a bond, with condition, that the bill exhibited contains
matter fufficient to bear a certiorari ; and that the plaintiff
prove the fuggeftion of the bill in fourteen davs after the
return of the writ ; when that is done, fue out a fubpxna (cl)
and ferve it, then get the Regifter's certificate that fecuritv
is given, and a certificate that the bill is filed, then
draw a brief of the bill, and move for a certiorari j which
being granted, draw up the order, pafs and enter it as in
common cafes, and fue out the certiorari and get it returned,
then the bill removed mult be re-ingroffed and filed as an
original bill, and move to file the certiorari, which is fiied with
* Woodcraft v. Kir.afton, 2 bad, becaufe the tenor of the
Atk. 317. record was only directed to he
{a) Praft. Reg. 82. removed, and not the record
(l) Mitf 49. itfelf. 2 Atk. 3 16]
(c) [This writ was held to be \d) $ed vide Mitt. 49.
V9L. I, E the
5 o CERTIORARI BILLS.
the bill removed ; this being done, you mud draw interroga-
tories to prove the fugqeftions in the certiorari bill ; file them
with the examiner and examine your witneffes j which done
you urn ft move or petition to refer it to a Mafter, and the
examiner is to attend witli the depofitipns ; but if it appears by
the plaintiff's own (hewing in his bill below, that he lives out
of, the jurifdiction of the inferior court, you may, without
proving aiiy allegation, move or petition to retain the bill
removed, and have an order ; after which the defendant muff
put in his anfwer, and you proceed as if the caufe had been
originally brought in Chancery ; but if it be ncceffary to pro-
ceed upon the interrogatories, you mnft get the Matter's
report ; if he reports the f'uggeftion of the bill proved, you
move or petition to retain the bill upon the M'ifter's report ;
in cafe you have not time to prove the fuggeftion within four-
th -si days, you may upon motion or petition get an order for
further time, on affidavit. of the remotenefs of his witneffes, or
other good caufe ; if the fuggeftion be not proved within the
time a procedendo may be awarded by the Chancellor to the in-
ferior court.
The certiorari bond is to be entered into by the plaintiff and
and one furety in the penalty of iool. to the Mafter of the
Rolls and the fenior Mafter in Chancery.
Not the plaintiff, but only the defendant in an inferior conn
of equity, may remove the proceedings hither by certiorari.
And though fuch defendant, who is plaintiff in this court, is
to examine within fourteen days after the writ is returned, as
to his proving the furmifes or fuggeftions of his bill j and giving
the court jurifdiction j yet the other fide is not to examine to,
or publifh any thing agaiuft it : but after the plaintiff's firfl
examination to prove his fuggeftions as to the jurifdiciion, if
the court retain the caufe, both parties are to examine their
witneffes orderly, touching the merits: and to have publica-
tion palled in the ordinary court.
[A certiorari bid was brought to remove a caufe out of the
Mayor's Court, his witneffes being out of that jurifdi&ion ; and
inferted other matters relating to an account not in controverfy
in the Mayor's Court. After examination of witneffes, the
defendant moved for a procedendo ; and infilled that if the caufe
(liould be heard here, he could not be relieved, not having
any bill here ; but a procedendo was denied ; the bill contained
other matters not determinable in the Mayor's Court-; neither
can the bill be divided : but the caufe after hearing was dif-
miffed out of this court (e).]
(e) i Cha. Ca 31.
[The
CERTIORARI BILLS. 51
[The plaintiff below fued for lands in the county palatine o£
Durham; it appearing that one of the defendants lived in
Middlcfex ; and the other was an old difeafed man and not
able to follow his fuit, a certiorari was granted (/")•]
[After a decree to account in the exchequer of Che/Ier, the
defendant mall not have a certiorari bill, upon pretence that his
witnefles and deeds are out of the jurifdiction (§■).]
[The plaintiff brought a certiorari bill ; the defendant pleaded
a decree in the Mayor's Court and an inrollnaent which was
faid to be only provifional ; and it was referred to a Mafter to
certify, whether it was before the bill (h) .]
[Upon a certiorari bill the caufe is brought on [to a hearing j
the court, if they think fit, may either fend the caufc back to
be determined in the court below, or retain it. It hath been
done both ways, fometimes retained and decreed here, but
oftenerfent back, fometimes after publication ; and fometimes
after afubpeena ferved to hear judgment (/).]
[The proofs made before anfwer in a certiorari bill, are not
to be ufed at the hearing ; for they are only to give the court
jurisdiction, and the defendants could i.ot then examine any
thing on his part (£).]
If) Cary's Rep. 48. I edit. (i) 2 Vern. 491.
(g) Ca. Temp. Finch, 452. (k) Curf. Can. 303.
(J>) 3 Cha. Rep 37.
E i
(. p
CHAPTER THE SEVENTH.
Bills to perpetuate the Tejiimony of Witnejes,
r A BILL to perpetuate the teftimony of witnefles mud ftale
L ** the matter touching which the plaintiff is defirous of
giving evidence (a), and muft flievv that he has fome in-
tereft in the fubje£t, and pray leave to examine witnefles
.touching the matter fo ftated, to the end that their tefti-
mony may be preserved and perpetuated. The bill ought
alfo to (hew that the facts to which the teftimony of the
witnefles propofed to be examined is conceived to relate,
cannot be immediately inveftigated in a court of law, as in the
cafe of a perfon in pofieflion without difturbance -, or that
before the fafts can be inveftigated in a court of law, the
evidence of a material witnefs is like to be loft by his death or
departure from the realm (b) .]
In the latter cafe, on affidavit that the witnefles to prove it,
are old, infirm, fick, and not like to live long, or that they are
going to fea, or beyond fea, whereby the party is in danger of
lofing their teftimony, he may obtain an order to examine them
(and if neceflary a commiflion for that purpofe) and zfubpccna
is to be ferved in all the parties interefted to fhew caufe if they
can to the contrary.
[After the bill is filed, the court, on affidavit that the wit-
nefles are going beyond fea^ will order them to be examined
de bene ejfe {c) .]
{a) [The defendant ought to whereof the memory of man is
know to what the plaintiff means, not to the contrary, and of
to point his commiflion. Thus in right ought to have common of
a bill to perpetuate teftimony re- pafture for their horfes, fheep,
fpe£ting a right of common and &c. in a certain wafte, &c. The
way, the plaintiffs claimed as court held that the charges in the
leffees of a manor under the bifliop bill were too general and not fuf-
of Winchefter, and the billcharged ficiently defcriptive ofany particu-
that the tenants, owners, and oc- lar right, and therefore allowed a
cupiers of the faid lands, mef- demurrer which had been put
fuages, tenements, and heredita- into the bill, i Vef. J. 449.]
ments in right thereof, or other- (b) Mitford, 50, 51.
tvi/r, have had from the time (c) Wyatt's Pracl. Reg. 70.
3 [So
BILLS TO PERPETUATE, &c. 53
[So if they live in the country, and the party is in danger of
lofing their teftimony, the court will upon motion or petition
and affidavit, grant a commiffion, or if they refide within
twenty miles of London, will order them to he examined by the
examiner de bene ejfe, which will make their depofitions valid in
that cafe only, and againft .thofe who are parties to the bill ;
but if it appear that they might afterwards have been examined
in chief regularly, fuch depofitions fhall not be made ufe of ;
and if the witneffes live till they can be examined in chief,
they muft be examined in chief; but if they die in the mean
time or have not returned from beyond fea before the hearing,
then their depofition may be publifhed. The depofitions thus
taken will bind as well as the parties, as all claiming by and
through or under them (d).~]
[Thefe bills to examine in perpetuam rei memoriam were utterly
difliked by the lord Chancellor Eggerton, becaufe the depofi-
tions are not (ordinarily) to be publifhed but upon oath that
the witneffes are dead, and being dead, there is no remedy
againft them if they have committed perjury. And he ordered
the party to exhibit his bill upon the title, and fo proceed to
an examination and publication in ordinary courfe, faying they
might go to law if they would, and take the benefit of thofe
examinations () 1 Vera. 9,i2„ (/) Pre. Cha. 531.
(i) 1 Dick, 55.
jnurred
BILLS TO PERPETUATE, &c. 55
murred as to perpetuating the evidence, in regard the defendant
xmVht bring his ejectment, and examine his witnefles at the
trial ; but upon affidavit that the plaintiff's witnefles were infirm
and unable to travel, the demurrer was over-ruled by the
Mafter of the Rolls, and afterwards by lord Chancellor Cowper
on a re-hearing ; but without fuch affidavit, the demurrer had
been good (/«)•]
[A tenant in tail out of poffeffion cannot bring a bill to per
petuate teftimony, till he has recovered pofleffion by eject-
ment (0).]
[A bill will not lie to perpetuate the teflimony of witnefles
to a lunatic's will in hit lifetime, which will was made before
his lunacy (/>).]
('A bill will lie to perpetuate teflimony on a ufurious con-
tract, though the plaintiff does not offer to pay what is really
due (q).]
[A man may bring a bill to perpetuate teflimony in many
cafes, where he cannot bring a bill for relief without waiving
the penalty, as in wafte, or in the cafe of a forged deed,
&c. (r) ]
[A bill was filed to perpetuate teflimony of the legitimacy of
the plaintiffs, who were infant fons, entitled in remainder in
tail, after an eflate for life : a demurrer by the feventh and
eighth in remainder after the plaintiffs and the other de-
fendants, all infants, was over-ruled, the plaintiffs having a
fufficient intereft to fupport the bill [s).~]
[In a bill to prove a will, and to perpetuate the teflimony
of witnefles, the defendant pleaded himfelf to be a purchafer
tor a valuable consideration without notice, and infilled that
unlefs there had been a verdict in affirmance of fuch will,
the plaintiff ought not to be permitted to examine his witnefles.
The plea was allowed (/).]
[The courts fuffered a widow to revive a bill to perpetuate the
teftimeny of witnefles to a will, laving the advantage of ex-
cepting at the hearing ; though upon a former bill by her
hufband and iffues at law thereon, the teftator was found n$n
compos mentis j and the finding upon the iffues, 8cc. was infifled
upon in the anfwer, by way of bar to the preient bill pf
revivor (tv) ]
(m) 1 PW. 117. (r) 1 Atk. 4J0.
(0) 1 Atk. 571. (s) 6 Vef. 251.
( p) I Vern. 105. (/) 1 Vern. 354.
:.>;,' ; Atk. 450. (w) Wy, Pratt. Reg. 75.
E 4 IK
5 6 BILLS TO PERPETUATE, &c.
[If a bill be exhibited for the examining of witneffes in per-
petuam rei memoriam, if the plaintiff therein prays relief, the bill
{hall be difmiffed (*).]
[In a bill for a difcovery, and perpetuating teftimony, plain-
tiff {truck out the difcovery, and all the relief ; but in praying
procefs, prays that the defendant may abide fuch order and
decree as the court fhall think proper ; this makes it a bill for
relief, and it ought to be difmiffed (y).]
[A bill to perpetuate teftimony may be difmiffed for want of
profecution, any time before replication and examination of
witneffes. After the witneffes are examined, plaintiffmuffc not
poceed to fet his caufe down to be heard ; for the end is an-
fwered by the examination, and if he does, his bill will be dif-
miffed with cofts,but fo as not to prejudice him in perpetuating
the witneffes' teftimony (2).]
In a bill to perpetuate teftimony of witneffes, colts are
never given againft the defendant. 1 Atk 610.
(x) 1 Vent. 266. (z) Ambl. 257.
(y) 3 Atk 439. fed vide 3
Anftr. 768.
( 57 )
CHAPTER THE EIGHTH.
Bills of Difcovery.
"T^VERY bill is in reality a bill of difcovery; but the
-*- i fpecies of bill ufually diftinguifhed by that title, is a
bill for difcovery of fa£ts refting in the knowledge of the de-
fendant, or of deeds or writings, or other things in his cuftody
or power, and feeking no relief in confequence of the dif-
covery. This bill is commonly ufed in aid of the jurifdie'r.ion
of lb me other court, as to enable tlte plaintiff to profecute or
defend an action at law, a proceeding before the king in
couucil, or any other legal proceeding of a nature merely civil
before a jurifdiction, which cannot compel a difcovery on
oath (a) ; except that the court has in fome inftances refufed
to give this aid to the jurifdiction of inferior courts (b). A bill
of this nature mud itate the matter touching which a difcovery
is fought, the intereft of the plaintiff and defendant in the fub-
jecl:, and the right of the firfr. to require the difcovery from
the other (t).]
This bill lies for the difcovery of an eftate by one who had
title to it, as by the patentee (d) of the goods of a felon, or of one
outlawed (e) •, for outlawry is in nature of a gift or judgment
to the king (/"). So where A. obtained judgment ajjainft B.,
and the defendant to defraud him of the benefit of it, alligned
his eftate to truftees for himfelf, A. may have a difcovery,
though it is objected, that this is in the nature of a. foreign
attachment, and that there could not be a difcovery of a man's
perfonal eftate in his life-time. But if the phintiff in fuch
eafe has not taken out execution, it will not be allowed (g).
It was determined by the lord Chancellor Hardwicke that
the defendant was not obliged to diicover by anfwer, whether
he be a papift or not. In that cafe (h) on the marriage of
Mrs. Pain with Mr. Smith, a fettlement was made to ufe of a
hufband and wife for their lives, and after, to the firft and other
fons of that marriage in tail, remainder to Mrs. Pain in fee,
(a) I Atk. 288. <*) Hard. 22.
(b) i Vef. 205. (/) 1 Vent: 398.
(c) Mitf. 52. ( g ) 1 Vern.399*
(<*) Carey 1. ^) j Atk. 526. 8 Vin. 540.
who
5$ BILLS OF DISCOVERY.
who devifed it to the defendant, and the bill was to difcovcf
if the devife would be void ; and on plea to this bill lord
Chancellor held that the defendant was not obliged to
anfwer.
Whether a plea of the ftatute of limitations be a bar to a
difccvery, and whether the point of plea ought not to be con-
fidered firft, vide 8 Vin. 538 (z).
Chancery never allows a oj.ll of difcovery in aid of the eccle-.
fiaftical jurifdiclion (k).
Bill for the difcovery of a promiflbry note for 275 1. fuggeft-
ing that it was given ex turpi cuufa to fmother and make up a
felony, &c. Demurrer to that part of the bill, which feeks a
difcovery if the note were not given to make up a felony, which
is of a criminal nature, Sec, and the demurrer allowed (/).
Perfons who claim lands by a will, or any other voluntary
difpofition, having the law on their fide, are entitled as againft
an heir at law to a difcovery in equity of deeds relating to the
eftate, and to have them delivered up,otherwife the heir might
defend himfelf at law by fetting up prior incumbrances, and
by that means hinder the trying the validity of the will (»;).
Though no bill of difcovery will lie on penal ftatutes, with-
out waiving the penalty, yet the advantage of pleading it feems
waived by partners in clandeftine trade^ as among them-
felves («).
A caufe being brought to a hearing, where the bill was for
a difcovery only ; the queftion was, whether the bill mould be
difmified, or the caufe {truck out of the paper ; and his Honor
ordered the caufe to be {truck out of the paper, becaufe a bill is
never Ylifmiffed, where the plaintiff prays no relief, for the words
of the difmiffion are," The court feeing no caufe to relieve" (0).
[Where there is a mere bill of difcovery, it cannot be dif-
rniffied for want of profecution j but the defendant may obtain
an order upon the plaintiff to pay the defendant cofts to be
taxed by the Matter (_/>).]
[If a bill feeking a difcovery of deeds or writings alfo prays
fuch relief as might be obtained at law, if the deeds or writings
were in the cuttody of the plaintiff, he mud annex to his bill
an affidavit, that they are not in his cuttody or power, and that
he knows not where they are •, unlefs they are in the hands of
t he defendant (q). But a bill for a difcovery merely, or which
(i) This plea was over-ruled, (n) Gilb. Rep. 186, 187.
Bunb. ReD 60. (0) Mof. 185.
(i) 1 Atk. 288. (/) 1 Atk. 286.
(/) 8 Vin. Abr. ?43. (?) 2 P.W. 540, 541. 3 Atk.
(/n) 8 Vin. 551. 17 and 132,
only
SILLS OF DISCOVERY. 59
or.ly prays the delivery of deeds or writings ; or equitable
relief grounded upon them, does not require fuch an affi-
davit (r).]
[Mr. J. Buller in Weymouth v. Boyer (s) found fault with
the rule, that if a plaintiff conies for a difecvery, when he has
it, he (hall pay the cofts, thinking it too general, and that the
plaintiff ought only to pay cofts, when he thinks fit to file his
bill without trying firft to get difcovery in that way, in which
men acting with each other ought firft to afk their rights ; not,
where the plaintiff is by the defendant's refufal compelled to
come here for the difcovery.]
[Where the bill prays difcovery and a commiffion, the de-
fendant cannot have the cofts of the difcovery till the return of
the com million (r).]
[If the defendant to a bill for difcovery and a commiffion,
examines in chief, inftead of confining himfelf to crofs exami-
nation, he fhall not have cofts (if).]
[In an abatement by the marriage of a female plaintiff in s.
bill of difcovery after anfwer, the defendant cannot have the
coils (#).]
(r) Mof. 102. & Mitf. 53. (w) 8 Vef. 70.
( ) 1 Vef. J. 423. (t) 10 Vef, 31, 1 Dick. 1 ij.
0»- Vef. 1643.
( to )
CHAPTER THE NINTH.
Amended Bills.
A N amended bill is but efteemed a continuation of the origi-
■**- nal bill, and they two reckoned but as one. An altera-
tion which is made in a bill by way of an amendment, is
generally introduced before the caufe is at ifTue, and an order
of the court obtained for that purpefe.
And if you require an anfwer to' the amendments, it is on
payment of twenty fhillings colls. But where new matter
happens pending the fuit, and after replication or that the
caufe is at ifTue, which matter is neceffary for the plaintiffs to
let forth to the court, this cannot be done by way of amend-
ment, but fuch new matter beiug difco\ered, you fet it forth by
a fupplementai bill which you draw and file of courfe without
any order for that purpofe.
[When the new matter is but fmall, and docs not exceed in
any one place two folios, the record is amended by interlining,
provided the fame be done fo as to make the record fair and
legible ; or if the amendment be by omitting the original matter,
it is done by ftriking through the fame with a pen. If the
amendment be too copious for interlineation in the original
record, the bill is new ingrofled and annexed to the original
bill. Vide Hind. 22.]
If any overfight in a bill is difcovered which requires an
amendment before an anfwer, the plaintiff may upon motion
or petition either amend or difmifs his bill ; but if the defendant
has appeared, and taken a copy of the bill, the bill cannot be
difmiifed without payment of cofts to be taxed. And after an
appearance, if before anfwer, the plaintiff may alfo upon the
like application amend without cofts, amending the defendant's
copy, and this is no more than an order of courfe (a). But if
the-plaintiff wants to amend his bill after the defendant has put
in his anfwer, and he requires an anfwer to the amendments,
he mud by his counfel either move the court, or petition to
amend the' fame, on payment of twenty fhillings coft6* to the
(
and when exceptions are taken to any anfwer, and defendant
fubmits to put in a better anfwer, and it is ueceffary to amend
the bill, it may done without cojls (o).
[If the defendant's counfel hearing the plaintiff's motion for
liberty to amend, and that the defendant may anfwer the
amendments and exceptions together, prepares the anfwer to-
the exceptions before the order for liberty to amend is drawn
up, this is regular practice (/>)•]
Before anfwer defendant may be ftruck out of the bill, upon
the plaintiff's motion, or if defendant anfwers or difclaims, or
appears difmterefted, his name may be ftruek out on motion
of the plaintiff, but it muft be with cofts to be taxed after
anfwer. So a defendant may be ftruck out at any time before
hearing ; but after appearance and anfwer it is with cofts, the
bill as to him being difmiffed (q).
£A motion to withdraw replication, and amend the bill by"
(0 i Vef. J. 448. (0) Hind. 23.
) 1 1 Vef. 578. et I Dick.
(/) 1 Dick. 358. 296.
(m) 2 P.W. 30c. x Dick, 67, (7) Hind. 24.
(n) z P.W. 403.
ftriking
AMENDED BILLS. 6 3
linking out the name of one of the plaintiffs* and making him
a defendant, upon terms of amending the defendant's copy, and
not requiring any further anfwer, was granted (r) ]
[A motion to amend the bill by linking out the names of
two of the plain tirls, upon giving fecurity for cofts at firft
refufed, bccaufe the defendants did not appear and confent,
but afterwards granted (/).]
[Application by a plaintiff to have his name (truck out of the
bjill, becaufe it was inferted without his knowledge, was refufed-,
but it was ordered that a motion fhould be made at the hearing,
in cafe the plaintiffs were to pay the colts, he Ihould be indem-
nified by the folic itor, who had fo inferted the faid plaintiff's
name (/).]
[The plaintiff after anfwer amended his bill without an
order for that purpofe ; the defendants appeared ; on motion
for the purpofe, liberty was given to the plaintiff to amend his
bill on payment of twenty millings colts, and for that purpofe
to take the lad engroffment of the file, and to amend the fame,
amending the copy of the defendant to the amended
bill («>).]
[When plaintiff hath obtained an order to amend after an-,
fiver, and negletts to do fo, the defendant may after three
terms move todiicharge the order, and at the fame time move
to difmifs the bill in the ufual manner ; or if an injunction hath
been obtained for default of appearance, or anfwer, and the
plaintiff amend his bill upon coming in of the anfwer, the de-
fendant muft after anfwer to the amendments move to diffolve
the injunction nifi ; for the injunction is not diffolved by plain-
tiff's amending his bill, or by defendant's anfwering thereto ;.
and if after anfwer and before injunction be diffolved, de-
fendant incur a breach thereof, he may be committed (*).]
[An order to amend not ferved, nor drawn up, does not
prevent a motion to difmifs the bill for want of profecu-
tion (y).]
[By the courfe of the court, the plaintiff in a crofs caufe
cannot have an anfwer, till he has himfelf anfwered the original
bill; but this is a privilege the plaintiff in the original bill has
in right of his original bill ; for if after the crofs bill be filed he
will amend the original bill, in material points, he will not be
entitled tohave an anfwer to the amendments; for as the bill may
(r) i Vef. J. 142. () 1 Dick. 234.
CO 6 Vef. 145. ( x ) Kind. 23. i-Dick. 2j;.
(/) 1 Dick 350. 1 Vef. J. 195. (/) 7 Vef. 222.
3 be
tf 4 AMENDED BILLS.
be amended both in difcovery and relief, the pendency of the
fuit, as to thofe points which are amendments is only from
the time of the amendment (z).]
[Where the bill is amended after anfwer, if the amended
bill is not anfwered, the plaintiff is entitled to a decree, that
the bill be taken pro conjejfo generally (a).']
[An original bill was brought by a creditor again ft an ad-
miniftratrix, who being a married woman, her hufband was
alfo made a party ; before hearing the wife dies ; the hufband
took outadminiftration dt bonis non of the inteftate ; upon which
the plaintiff amended his bill againit the hufband, to which
amendments the defendant demurred ; for any matter which
arifes fubfequent to the original bill cannot be put into the amended
bill ; but a bill of revivor and fupplement ought to be brought.
The demurrer was allowed (b).~j
[But in another cafe, where a plea was put in to an amended
bill under funilar circumftances, the plea was over-ruled, as
the taking out letters of adminiftration might be charged either
by way of fupplement or amendment (<:).]
[A plaintiff by a falfe fuggeflion^ that the caufe was at iffue
only when it was in the lord Chancellor's paper for hearing,
obtained an order by petition at the Rolls for liberty to amend
his bill, by inferting the prayer of the original bill, which had
been omitted by negligence in the amended bill ; the order at
the opening of the cafe was difcharged as irregularly obtained,
with twenty millings cofls, and the caufe put off till next term ;
that upon paying the cofls of the day, the plaintiff might have
an opportunity of amending his bill (), or it may be ufed as a ground
to impeach the decree, which is in the peculiar cafe o£
a fupplemental bill in the nature of a bill of revivor (/).
When any event happens iubiequent to the time of filing an
original biil (k), which gives a new intereft in the matter in
diipute to any perfon not a party to the bill, as the birth of a
tenant in tail, or a new intereft to a party, as the happening
of i'ome other contingency, the defect may be fuppliedby a lill s
which is ufuaily called a fupplemental bill, and it is in fact
merely fo, with refpect to the reft of the fuit, though with,
refpect \o its immediate object, and againft any new party it
has in fome degree the effect of an original 'bill. If any event
happens which occaficns any alterati >n in the intereft of any
of the parties to a fuit, and docs not deprive a plaintiff fuing
in his own right of his whole intereft in the fubjecl, as in the
cafe of a mortgage, or ocher partial change of intereft, or if a
plaintiff fuing in his own right, is entirely deprived of his in*
tcreit, but he is not the fole plaintiff, the defect arifingfrom this
event may be fupplied by a bill of the fame kind, which is like-
wife commonly termed, and is in fome refpects a fupplemental
bill merely, though in other refpects and efpecially againft
any new party, it has alfo in fome degree the effect of an
original bill (/).]
[If the intereft of z file plaintiff fuing in aider droit entirely de-
termines by death or otherwife, and fome other perfon thereupon
become entitled to the fame prcpirty, under the. fame title, as in
the cafe of new affignees under a commiffion of bankrupt, upon
the death or removal of former affignees (in), or in the cafe of
! an executor or adminiitrator upon the determination of an
adminiitration durante minori atate, or pendente lite the fuit may
(J) 2 Cha. Rep. 142. (0 Mitf. 59, 60.
(e) 3 Atk. 370. (i) 1 Atk. 291. 3 Atk. z 17.
(/) 3 Atk. 133. (/) Mitf. 60,61.
(g) 3 Atk. 1 10. (m) 1 Atk. bb and S9. 3 Atk.
{b) 3 Atk. 217. 28
F 3 fe«
63 SUPPLEMENTAL BILLS.
be likewife added to and continued by fupplementai bill (#}*=
But if a fole. plaintiff fuing in his own right is deprived of his
whole intereit iu the matters in queftion by an event fubfequent"
to the inftitution of a fuit, as in the cafe of a bankrupt or in-
solvent debtor, whole whole property is transferred to affignees,
or in cafe fuch a plaintiff affigns his whole intereft to another,,
the benefit of the proceedings cannot be obtained by a fupple-
mental bill, but muffc be fought by an original bill ().]
[In all thefe cafes, if the fuit has become abated as well as
defective, the bill is commonly termed a fupplementai bill in
the nature of a bill of revivor, as it has the effect of a bill of
revivor in continuing the fuit (q).~\
[A tenant in tail claiming upon the death of a former tenant
in tail without iffue, but by a new limitation in remainder, is
entitled to continue the fuit of a former tenant in tail, and to
have the benefit of the proceedings by a fuppiemental bill (r).]
fin a bill claiming a charge upon the whole inheritance in
ftrick fettlement againft the iirft tenant in tail in being, if he
dies without iffue, all the proceedings are had againft the
fecond fon, as if he had been originally a party>by fupplementai
bill(,).]
(n) 2 Vern. 237. 2 Eq. Ca. Tbompfon obferves, that the
Abr. 3 & 4. c< nltant practice was that the
(0). Mitf. 62. [In the cafes of affignees of a bankrupt, m
Sellas v. Dawfon, 1 Anltr 459 order to take advantage of a fuit
inthefiote, and Williams v. Kin- commenced by him, filed a fup-
der, 4 Vef. 3S7. it was held that plemental bill and not a bill of
the fuit abated by the bankruptcy revivor; but if the fuit abated,
of the plaintiff. But the rule in it would be neceffary to revive]
the Exchequer feems to be dif- (p) Mitf. 62, 63.
ferent, iiidc Davidfon v. Butler, (y) Mitf. 63.
I Cooke's B.L. 622. and I Anftr. (r) 9 Vef. 37.
460. in the note, Mr. Baron (s) 1 Vef. 57.
[A new
SUPPLEMENTAL EILLS. 69
]A new plaintiff by fupplemental bill may impeach a decree
upon rehearing on petition of former parties (/).]
In a bill of review a new fupplemental bill may be
added (w).]
On a fupplemental bill, the cor.rt upon motion will give
leave to add to the firft interrogatories, fo as the new interro-
gatories contain nothing but what relates to the fupplement.
Or I think you may file a replication to the defendant's an-
fwer to the plaintiff's fupplemental bill, and obtain an order that
fervice of -afubpeena to rejoin ret. immediate on the defendant's
clerk in court may be deemed good fervice on the defendant,
and then draw interrogatories to examine your witnefles,
touching fuch new matters contained in your fupplemental
bill, in cafe the defendant has denied the fame in his anfwer.
They are brought either before or after hearing ; where it is
after hearing, it recites the former proceedings and the true
ftate of the caufe, and then byway or' fupplement, adds the
new matter, and then prays procefs as in an original caufe.
Where a fupplemental bill is brought after publication, it is
irregular to examine witnefles to a matter, that was in ifi'ue and
not proved in the original caufe, and fuch proof not to be
read (a-).]
If there be no proof of the new matter in the fupplemental
bill, it mult be difmiffed, if fuch matter is not fully admitted in
the defendant's anfwer.
[A fupplemental bill muft Hate the original bill, and the
proceedings thereon ; and if the fupplemental bill is occafioned
by an event fubfequent to the original bill, it rnuit Hate that
event, and the confequent alteration with refpett to the parties,
and in general the fupplemental bill muft pray, that all the de-
fendants may appear and anfwer to the charges it contains.
For if the fupplemental bill is not for a difcovery merely, the
caufe muft be heard upon the fupplemental bill at the fame time,
that it is heard upon the original bill if it has not .been before
heard ; and if the caufe has been before heard, it muft be
further heard upon the fuoplemental matter (y) ; if indeed the
alteration or acquifition of interelt happens to a defendant or a
.perfon neceffary to be made a defendant, the fupplemental bill
may be exhibited by the plaintiff in the original fuit againft
fuch perfon alone, and may pray a decree upon the particular
fupplemental matter alledged againft that perfon only (z),
unlefs (which is frequently the cafe) the interelts of the other
(/) Vef. J. 405. ( y ) 3 Atk. 217.
(w) 1 Vera. 135. (z) 3Atk. 217.
<-v) 12 Vin. Abr. 114.
F 3 defendant
7 o SUPPLEMENTAL BILLS.
defendants may be affected by that decree. Where a fupple-
rmntal bill is merely for the purpofe of bringing formal parties
before the court as defendants, the parties defendants to the
original bill need not in any cafe be made parties to the fupple-
rnental (#).]
[An original bill in the nature of a fupplemental bill rauft
ftatethe original bill, the proceedings upon it, the event which
has determined the intereft of the party by, or againft whom,
the former bill was exhibited, and the manner in which the
property was veiled in the perfon become entitled \ it muft
then fnew the ground upon which the court ought to grant the
benefit of the former fuit to or againft the perfon fo become
entitled, and pray the decree of the court adapted to the cafe
of the plaintiff in the new bill (/>). This bill though partaking
of the nature of a fupplernental bill, is not an addition to
the original bill, but another original bill which in its confe-
rences may draw to itfelf the advantage of the proceedings on
the former bill (<;),]
(a) 3 A tk. 217. et vlJe Mitf. (&) 2 Bro. P.C 32©.
69 and 70. ■ (?) Mitf. 90.
( n )
CHAPTER THE ELEVENTH.
tills of Revivor.
iILLS of revivor are to i-evivc fuits and all proceedings
thereon abated.
When any of the pirties to a bill die, the fuit abates,
but it mult be bv the death • f fuch, as were fo far materially
concerned in int< r 11, as to make it neceffary to have their
reprefentatives b- f^re the court, before the caufe can be
finaiiy determ ned.
The Attorney General of the duchy exhibited an informa-
tion at the reJa.ion of om part owner of coal mines againft
the others, the relator dies, this abates the fuit (a).
If a feme plaintiff marries, by her own a£t fhe abates
the fuit, of which the defendant may take advantage, and
(he and her hi (band inuit therefore exhibit a bill of revivor,
and ferve zfubpaena to revive, and the time for anfwering being
out, it s a motion of courfe to revive proceedings, &c.
But where a feme fole an fivers, and afterwards pendente lite
marries, the plain tiff may proceed againft her, without reviving,
and the hiifband fh ill be bound by the anfwer (he made, whillt
fo , for fli • ftiall not take advantage by her o vn acl:. But the
hufb md in that cafe, is a party of courfe in all the proceedings
in the cauk fubfequcnt to his wife's anfwer. And there s no
occafion for a motion for an oruer to make the hufband a
party.
If tbe plaintiff dies pending a fuit, it is abated, and his
executor* or administrators muft revive the caufe before they
can proceed thereon ; and all the o- dtrs for the revival of pro-
ceedings muft be ferved on the advtrfe clerk in our . to the
end that he may take notice that the fuit is revived, and that
fuch revivor is right.
If a defendant dies, the fuit is abated, and if it is a perfonal
den and againft him the bill muft be to revive, and anfwer
agiinft the reprefentative of fuch defendant, and the fubpoena
accordingly. And this bill prays either an admiflion or dis-
covery of aflets from the legal reprefentatives of the dead
party ) 2 b q. Ca. Abr. 3. 2 Bro. the name of an executor or an
P.v . 3 a , 4")4» 45,5' adminiftrator.
(7) Mitf 67. (j) Finch v. lord Winchelfea^
(,) 1 Vern. 237. By this Mich. 1727.
ftatute it isena&ed that an ad- (/) Pre. Cha. 197,
jpijnftrator t!t bonis ncn may fue (w) 2 Vern. 296.
ruptcy
BILLS OF REVIVOR. 7.5
rtiptcy againft 1 perfon claiming as mortgagee. The title of
tl. bankrupt was under a fine by a tenant in tail ; as to
whofe legitimacy a quellion was made •, and a decree was
made, directing an iffue, and refsrving farther directions and
cofts In that iflue, the verdift was atgainft the legitimacy.
The fuit afterwards abated by the death of the mortgagee. His
reprefentatives may revive. 10 Vef.' 406.]
[But where the defendant has no intereft in the farther pro-
fecuticn of the fuit, as where his only object is to diflblve an
injun&ion and proceed at law (which it feems may be done by
motion notwithstanding the abatement,) the defendant cannot
revive. 12 Vef. 31 1 .]
[The defendant in any cafe may revive as well as the
plaintiff, after a caufe is heard and a decree pronounced.]
[The bill of revivor in this cafe merely fubftantiatcs the
fuit, and brings before the court the parties neceffary to fee to
the execution ot the decree, and to be the objects of its opera-
tions rather than to litigate the claims made by the feveral
parties in the original pleadings (*), except fo far as they re-
main undecided (y) .]
A bill of revivor lieth not upon a decree of a long (landing,
but the party is to exhibit an original bill. But quare if a hill of
revivor willnot lie upon decree of a long Handing in cafe either
the plaintiff or defendant be living.
After a caufe has flept twelve months, there mud be -zfubpccna
fidfaciefid' attornat.
Where no proceedings have been had for a year, the fuit may
be revived hyfubpcena fcire facias, and where you may revive by
fubpxna fire facias, you may at your election by bill of
revivor (2).
[Bill for a difcovery ; the defendant anfwered, the fuit
afterwards abated. Held it was not to be revived (a).~\
[A decree not being drawn up, fuit abates by the death of
a party ; the fuit muit be revived before the decree can be
paffed (£).]
[This bill lies not to revive a decree made for cofts only
unlefs the cofts are taxed, and a report made in the lifetime of
the party (c).]
[A bill of revivor may be brought for duty and cofls not
taxed in defendant's lifetime j but not for cofts alone (d).
(x) 1 Eq. Ca. Abr. 2. (c) 2 Cha. Ca. 7. 2 Cha.Rep.
(y) Mitf. 73 & 74. 195 & 246, & 1 Dick. 13.
(as) Cha. Ca. 378. (d) Bunb. 160. &3Atk. 773.
(a) I Dick. 133. & 812.
(/;) I Dick. 2j
[After
$6 ISiLLS OF REVIVOR.
[After a verdift on iflue directed, deeds were decreed to he
delivered up to the plaintiff; after the Mailer had fettled the
amount of the cofts, burbefore the' report, the plaintiff died ;
on demurrer to fo much of the bill by bis devifee as prayed
revivor, the court held the rule not to revive for cofts only,
nor applicable where the party to receive them dies ; and that
his reprefentative was entitled to the cofts although not taxed
at the plaintiff's death (*•).]
A bill of revivor w;;s brought iingly for cofrs, and it is de-
murred to ; it was faid in this cafe that a bill of revivor was
not proper ; but though the bill was difmiiTed, yet it was not
fo much out of court, buc that the party who was to pay the
cofts was ftill liable to ihe procefe of the court for fuch cofts,
as attachment, Stc. and here the demurrer was allowed.
[You cannot revive for cofts alone.; but if cofts are to be
paid cut of an eftate you may revive for them (/).']
A bill of revivor was brought to revive ail proceedings, and
particularly an order by content ; the defendant demurred to the
hill, for that it fought to revive that order; whereas the feme
was a party to it, and (lie being married fmce her executorlhip,
consequently her confent was determined ; and the demurrer
was allowed Q»).
A bill of revivor upon a bill of revivor lies, until the interefl
of, the thing in queftion be determined (h). Agreed per curiam
.efpecially in cafe of death.
Plaintiff brings a bill oi revivor ; defendant pleads a former
bill of revivor ; if that plea is not fufficient for Tome fpecial
/:ircumftances in the cafe, the court will order the caufe to
ftand revived without fubpeen a (;').
In a bill of revivor it may»be necefTary to infert fo much new
matter as is needful to fhew how the party becomes entitled to
revive (k).
If one be named a defendant in the original bill, who is yet
■alive, he ought not to be named in the bill of revivor, for the fuit
never abated quoad him. But if named in the bill of revivor
("/).
A bill of revivor may be brought either before or after hear-
ing ; it is fometimes brought to revise only, and then it i>
received without anfwer after appearance, upon motion, fug-
gefting that the time for anfwering is out. But where it is
brought to revive and anfwer, an attachment and all the fub-
fequent procefs of contempt may iffue, as on any other bill
if the defendant anfwer not in time.
A fuit cannot be revived in part, but the whole proceedings
bill, anfwer, &c and all orders mull ftand revived (p).
[In a bill of revivor merely, the defendant muft appear in
a town eaufe in four days exclufive of the fervice of fuipcena i , or
in default, procefs of contempt may be iffued {q). J
Where the teftator had pleaded to a bill, and died before the
plea was argued, the executor muft plead de novo. For the firft
cannot be argued now (r) .
[If defendant by anfwer only (not by plea or demurrer) in-
fifts, plaintiff is not entitled to revive, yet the court on motion
will order proceedings to be revived. But if- plaintiff does
not (hew a good title to revive, he will fail at the hearing (s).
[If part of the decretal order be omitted in the decree figned
and inrolled, plaintiff may revive by bill of revivor (/).]
[If a bill of revivor revive the whole decree, which was
to pay money and to convey lands, it may ftand as to the
perfonalty if the executor only revives, and not as to the
realty though the demurrer to the bill be general (w).]
[By confent of all parties interefted, the court may order
money to be paid out of court without reviving the fuit (a*).]
ft 4.
[When
(/') ha. Rep. 67.
(r) Ca. temp. Talb. 3.
(m)? C ern. 463.
(s) 3 P.W. 48.
(b) I Vern. 308.
(/) I Cha. Ca. 37.
(/>) 2 Cha. Ca. 80.
(«/) 1 Eq. Ca. Abr. 3
(j) Hind. 48.
(a) 2 Vet. 399.
78 BILLS OF REVIVOR.
[When a fuit became abated after a decree figned and inrolled,
it was anciently the practice to revive the decree by zjubpeena
in the nature of a fcire facias, upon the return of which, the
party to whom it was directed might fhew caufe agamll the re-
viving of the decree (y), by infifting that he war. not bound by the
decree (z), or that for fome other reafon it ought not to be in-
forced ogainft him, or that the peuon filing he fubpeena was
not entitled to the benefit of the decree, h th< opinion of the '
Court was in his favour, he was difmifled with colls ; if it was
againft .;«), or if he did not oppc*~ the reviving of the decree,
interrogatories were exhibited for his examination, touching
any matter neceffary to the proceedings. If he oppofed the
reviving cf the decree on the ground of t i£b which were dif-
puted, he was alfo to be examined up^n interrogatories, to
which he might an fwer or plead, and iflue being joined and
witneffes examined, the matter was finally he?rd and determined
by the court. But if there had been any proceeding fubfequent
to the decree, this procefs was ineffectual (£), a c _» it revived the
decree only, and the fubfequent proceedings could not be
revived but by bill ; and the inrolment of decrees being now
much difufed, it is become the practice to revive in all cafes
indiscriminately by bill (r).]
A commiffion being granted to examine witneffes at Algiers,
the plaintiff died, by which in ftri£tnefs the fuit abated ; but the
witneffes were examined there before notice of plaintiff's
death ; the examination was held regularly as well in regard
to one of the witneffes that was dead, as to another that was
(till living (d).
[A bill of revivor mu ft ft ate the original bill, and the fe-
veral proceedings thereon, and the abatement -, it muft fhew a
title to revive ().]
[The defendant to' the original bill mult generally anfwer
before defendant to the crofs bill (hall be compelled to anfwer.
And in cafe the plaintiff in the crofs caufe ihould attempt to fue
out procefs of contempt, the defendant may obtain an order
to ftay proceedings upon the crofs bill, until defendant to the
original caufe hath fully anfwered the fame. The defendant
to the crofs bill will be entitled to the ufual orders for time to
anfwer the crofs bill, after the anfwer to the original bill is.
filed (»).]
[A. brings his bill againfl B. and C. who put in fufficient
anfwers, and prefer their crofs bill againfl: A. — B. becomes
bankrupt ; his affigrie.es bring their bill in nature of a bill of
• revivor againft A., they (hall not go on till C. has anfwered A.'s
bill (*)•]*
[But if the plaintiff in the original bill, will after the crofs
bill filed amend his bill in things material, this amended bill
as to- the amendments is a new bill, and the plaintiff in the
original bill {hail be bound to anfwer the crofs bill, which was
filed prior to the amendments made to the original bill, before
fuch time as the laid plaintiff in the original bill (hall have an
anfwer to his amendments ; and as the amended bill muft be
(g) i Atk.291. (/') Hind. 53.5-4.
(h) 2 Vet" 36. ).
(7) 2 P. W. 435-. and 2 Atk, (0) Hard. 160. & Mitf. 75,
•2i;>. & 76.
(/«) 1 Vern, 221. (A) J Vef. J. 313,
(«) 3 Atk. 812.
G a
( 84 )
A
CHAPTER THE THIRTEENTH.
Bills of Rcviezv.
BILL of review is after a caufe is heard, and the decree
figned, complaining of feme error in law, or miftake ap-
pearing in the body of the decree, or when fome new matter
is difcovered that was not discovered at the time of making the
decree.
Ruled by Talbot lord chancellor, that if a decree be ob-
tained, and that decree inrolled fo that the caufe cannot be re-
heard upon petition, the party can in no cafe fet afide this
decree or obtain relief againft it by an original bill ; for then
the decrees of the court would be oppofite, and contrary one
to the other, which would breed the utrnoft confufiom
"Wherefore the only remedy in fuch cafe is by bill of review,
which muft be either for error appearing on the face of the
decree, or upon fome new matter, as a releafe, receipt, See.
proved to have been difcovered fince ; for unlefs this relief
were confined to fuch new matter, it might be made ufe of
as a method for a vexatious perfon to be oppreffive to the
other fide, and for the caufe never to be at reft (a).
The bill of review is in nature of a writ of error at common
law ; it recites fhortly all the proceedings with the decree ;
and here it is to be noted, all the decrees are to be enrolled
from the original proceedings ; they are not enrolled from the
regifter's recitals of the decree, becaufe the fix clerk certifies
ke has examined them with the records, and that they agree
together.
If any new deed is found out, or a new difeovery fince the
hearing, which the party had not knowledge of, at the hear-
ing, and has fince then come to the knowledge thereof, he
muft annex an affidavit of the matter, and pray an anfwer from
the adverfe party, and he muft, upon filing his bill of review,
ferve the party with z fubpoena ad revivendum..
Forgetfulnefs or negligence of parties under no incapacity,
is no foundation for a bill of review (b).
(a) 3 P. W. 371.
(b) 2 Atk, 533. 3 Atk, 26. 2 Vef, 597. 598. et 3 Vef. 750.
Infant
BILLS OF REVIEW. 8$
An infant may bring a bill of review (r).
[Where a matter in fa6t was particularly in iflue before the
former hearing, though you have new proof of that matter,
upon that you (hall never have a bill of review ; but where a
new fa£l is alledged, that was not at the former hearing, there
it may be a ground for a bill of review (d) .]
[Papers in the hands of a party to a former caufe, after
publication had palled, though not produced then, may be read
upon a bill of review ; for not being discovered till after pub-
lication in the caufe, they could not poflibiy be made ufe of
then (r).J
[On arguing a demurrer to a bill of review, nothing can be
read but what appears on the face of the decree ; but after
the demurrer is over ruled, the plaintiffs are at liberty to read
bill and anfwer, or any other evidence as at a rehearing, the
ca.ufe being equally open [f).~]
[Upon a bill of review, the party cannot afhgn for error, that
any of the matters decreed are contrary to the proofs in the
caufe, but mult fhew fome error appearing in the body of the
decree, or new matter difcovered fince the decree made (g).~\
[It was objected againft the bill of review, that they had
afligned errors collected from the proofs in the caufe, that did
not appear in the body of the decree -, but the lord keeper ob-
ferved, that was occafioned by the ill way they had got of late
in drawing up decrees in general, without particularly ftating
the matters of fact, and laid the plaintiff in a bill of review
ihould not be concluded by it, unlefs the matter of fa 61 were
particularly ftated in the decree (£).]
[The facts that were proved, fkould be particularly fo men-
tioned in the decree ; otherwife if a bill of review was brought,
thofe fads fhould be taken as not proved ; for elfe a decree
could nevre be reverfed by a bill of review, but all erroneous
decrees muft be reverfed upon appeals (/).]
No objection to be made upon a bill of review that is not
afligned for error (k) .
In a bill of review, a new fupplemental bill may be added (/),
Obje£tions to a matter's report cannot be afligned for error
upon a bill of review.
[On a bill of review, the caufe of review muft arife and
appear upon the cafe as ftated in the decree, and the fa£t muft
be admitted as there ftated ; and though the fad whereon the
(c) Gha. Ca. 384. (There is no (g) iVern. 117.
fuch page in Cha. Ca.) (/>) 1 Vern. 216.
(d) 2 Freem. 31. (i) 1 Vern. 214.
(e) 2 Atk. 179. 3 Atk. 35. (i) 4 Vin. Ab. 414.
(/) i Atk. 290. (0 1 Vern, 135.
G 3 Court
8 5 EILLS OF REVIEW,
court gave judgment was miftaken,yet thatisnogronnd for a bdi
of review after a decree inrolled, but the fact muft be admit-
ted true, and the decree inrolled is matter of record, and can
be tried only by the record •> but in rrflftaking the fact, the
proper courie was to have gotten the caufe reheard before the
decree had been figned and inrolled (nt).
[None but parties and privies, as heirs, executors, or ad-
miniftrators, can have this bill of review, fmce no body elfe
can be aggrieved by filch decree (;/).]
[A deyifee is not entitled to a bill of review, being not in
privity to the teftator againft whom the decree was made (o).]
[But where a parifh was fued, and four of the parifhioners
named only to defend, another parifhioner may bring this
bill (p).
[If a man have lefs decreed him than he would have, he
fhall not bring a bill of review, for this bill lies only for him
ag.iinft whom the decree of difrniffion is (q).~\
[A bill of review upon new matter difcovered has been per-
mitted even after an affirmance of the decree in parliament (;-) ;
but it may he doubted, whether a bill of review upon error in
the decree itfeif can be brought after affirmance in parlia-
ment (j).]
Appeal to the houfe of lords from a decree in chancery, and
upon the petition of the appellants to examine witnefles in
the caufe, it was re-jetted, and the petition dlfmifled ; the ap-
pellant- then brought in a bill of review, and it was decreed
that the defendants fhould either artfwer the hill of review or
demur on the errors in it without cods on either fide, and the
benefit of the order of difrniffion by the lords was fayed to the
defendants (/).
[If upon a bill of review a decree has been reverfed, another
bill of review may be brought upon the decree of reverfal {iv).
But when twenty years have elapfed from the time of pro-
nouncing a decree, which has been figned and inrolled, a bill
of review cannot be brought (x) ; and after a demurrer to a
bill of review has been allowed, a new bill of review on the
fame ground cannot be brought (y).~\
Bill of review not allowable on a decree of cornmiilioners of
charitable ufes., examined in chancery, and confirmed in part,
(m) 2 Freem. 182. (s) iVern. 418.
(«) Hind. 53. & Pract. Reg. (/) Finch. 469.
95. (••«.<.•) 2 Chan. Pract. 65$. but
(0) 1 Cha. Ca. 123. fee 1 Vern.417.
(p) 1 Cha. Ca 272. (x) r Bro. P. C. 95. 5 Bro,
(?) 1 Cha. Ca.5.3. P. C 460. 6 Bro. P. C. 195.
(r) 1 Vera. 416. (j) 1 Vern, J35. Mitf. 79.
and
BILLS OF REVIEW. 87
and altered in part 5 fo certified on reference out of chancery
to the judges of the common pleas. And Jones laid, fo it* is
upon a decree made upon the ftut. 37 H. 8. (tythes in Lon-
don) by the major part, and confirmed by the chancellor (z).
[The court would not grant a bill of review after an account
had been directed, and taken on a foreclofure bill, and the
report confirmed fome years before, and it appearing de-
fendant's agent and attorney and folicitor attended the matter
for him ().]
[But if any acl be decided to be done which extinguifhetht
the parties right at the common law, as making of affurance
or releafe, acknowledging fatisfaction, cancelling bonds or
evidences, and the like, thofe parts of the decree are to be
fpared, until the bill of review be determined ; but fuch fparing
is to be warranted by public order made in court {/).!
[In cafe money be decreed, the court may difpenfe with
the payment of it, upon giving good fecurity (g).]
[Per Cur. In a bill of review all things are to be per-
formed according to the former decree, that do not extinguifh
the right, otherwife the non-performance is a good plea in
bar j as if writings are to be brought into court, or cofts paid,
but not to releafe the right or make a conveyance, becaufe that
would deftroy the right (£).]
(z) Cro. Car. 40, (e) Toth. 42.
(a) 2 Atk. 533. (/) Lord Bacon's Ord. ^-.
(£) Wy. Pratt. Reg. 98. (>) 1 Cha. Ca. 4a.
(c) 2 Vern. 190. (£) 2 Freem. 88,,
(d) Lord Bacon's Ord. 3.
G 4 Ft
88 BILLS OF REVIEW;
[It is a rule of the court, that the bringing a bill of review
fhail not prevent the execution of the decree impeached ; and
if money is directed to be paid, it ought regularly to be paid
before the bill of review is filed, though it may afterwards be
ordered to be refunded (*).]
[Plaintiff is not allowed to bring a bill of review, unlefs he
performed the decree, or would fwear he was unable to do it,
and would furrender himfelf to the Fleet to lie there, till the
matter on the bill of review was determined (£).]
[Plaintiff was allowed to bring a bill of review without paying
the coils decreed in the original caufe upon making oath he
was not worth 40/. befidesthe matter in queftion (/).]
[A bill of review upon an error at law, apparent upon the
face of the record, may be filed without leave of the court,
making a depofit of 50/. and no affidavit is required (/»)•]
When a bill of review is brought for error apparent, the
conftant method is for the defendant to put in a plea and de»
murrer; a plea of the decree and a demurrer againft opening
the inrolment («).
The party generally fpeaking puts in the ufual demurrer,
that there is no error in the decree ; he rarely anfwer unlefs
ordered by the court.
There was once a precedent, where fuch a demurrer was
allowed, though the party had fince the decree come to the
knowledge of two letters, which feemed to overthrow the
decree, and all the proceedings depending thereon ; and the
court in that cafe would not put the party to anfwer to thofe
two letters, but allowed the demurrer ; the reafon given in this
cafe was, that the party might have found out thefe two letters
before the hearing, fince he had them in his cuftody, and if
that practice fhouid take place, it might overthrow all the de-
crees in the coun ; and if this mould be allowed as a pre-
cedent, a man might take up his defence when he pleafed j
whereas his whole defence ought to be made at once, and
before the hearing. It was faid the lords reverfed that allow-
ance of the demurrer, and ordered the party to anfwer the
bill of review (0).
The demurrer being fet down to be argued, the court pro-
ceeds to affirm or reverfe the decree, and the prevailing paity
takes the 50/, depofit.
(i) z Bro. P. 0, 34. note. («) Hind. 58.
(k) lVern. 117. (n) 2 Atk. 534.
(/) 1 Vein. 264. (0) Henriques v. Jacobfon,
Bil!
BILLS OF REVIEW. Sj?
Bill of review and error afligncd in the decree, plea and
demurrer thereto — demurrer in part allowed, and in part
overruled (/>).
[To render a bill of review necefTary, the decree fought
to be impeached muft have been figned and inrolled. If there-
fore this has not been done, a decree maybe examined and re-
verfed upon a fpecies of fupplemental bill, in nature of a bill
of review, where anv new matter has been difcovered fince the
decre (q). As a decree not figned and inrolled may be alter-
ed upon a rehearing without the afliftance of a bill of review,
if there is fufficient matter to reverfe it appearing upon the
former proceedings, the inveffcigation of the decree muft be
brought on by a petition of rehearing (r), and the office of the
fupplemental bill in nature of a bill of review is to fupply the
defect, which occafioned the decree upon the former bill (/).
It is neceffary'to obtain the leave of the court to bring a fupple-
mental bill of this nature (w) t and the fame affidavit is required
for this purpofe as is neceffary to obtain leave to bring a bill
of review on difcovery of new matter. The bill in its frame
nearly refembles a bill of review, except that inftead of praying
that the former decree may be reviewed, and reverfed, it prays
that the caufe may be heard with refpe£t to the new matter
made the fubjecl; of the fupplemental bill, at the fame time
that it is reheard upon the original bill, and that the plaintiff
may have fuch relief as the nature of the cafe made by the fup-
plemental bill requires (#).]
[If a decree is made againft a perfon who had no intereft at
all in the matter in difpute, or had not fuch an intereft as was
iufiicient to render the decree againft him binding upon fonie
perfon claiming the fame, or a fimilar intereft (v), relief may be
obtained againft error in the decree by a bill in the nature of a
bill of review. Thus, if a decree is made againft a tenant for
life only, a remainderman in tail or in fee, cannot defeat the
proceedings againft the tenant for life ; but by a bill fhewing
the error m the decree, the incompetency in the tenant for
life to fuftainthe fuit, and the accruer of his own intereft, and
thereupon praying that the proceedings in the original caufe may
be reviewed, and for that purpofe, that the other party may
(/>) Finch. 36. Rules and orders in chancery 107*
{q) 1 Atk.40. 813 Atk. Sn. 2Atk.i39. 3 Aik. 811. 2 Vef.
(r) 2 Vef. 598. 57 1 - 59 6 -
(/) 2 Atk. 177. (*) Mitf. 81, 82, & 83.
(w) Ord. iytji October 1741. (v) iCha.Ca, 272.
appear
90 BILLS OF REVIEW.
appear to, and anfwer this new bill, and that the rights of
the parties may be properly afcertained. A bill of this nature,
as it does not feek to alter a decree made againft the plaintiff
himfelf, or againft any perfon under whom he claims, may be
filed without the leave of the court (z).]
[Coils are of courfe upon a bill of review for error, where
no error in the decree (a).'}
(z) Mitf. 83. (a) 5.Vef. 509.
( 9i )
CHAPTER THE FOURTEENTH.
Bills impeaching Decrees on the ground of Fraud.
r|F a decree has been obtained by fraud, it may be impeached
I *- by original bill (a), without leave of the court {b)> the
fraud nfed in obtaining the decree being the principal point in
iffue, and necefiary to be eftablifhed by proof before the pro-
priety of the decree can be inveftigated. The plaintiff brought
a bill to redeem, ftating a mortgage of the lands by his father,
and that the defendant had procured an affignment of it to
him, with the father's confent, upon an affurance which had
rot been fulfilled ; that the defendant on the mortgage being
forfeited, turned the plaintiff's father out of poffeffion by
ejectment, and then brought a bill againft him, which he an-
fwered ; then the defendant upon a falfe affidavit obtained an
order, that the fervice of the then defendant's clerk in court
might be deemed good fervice, notwithftanding the plaintiff's
father was living, and appeared publickly in the next county,
but upon this affidavit, 8cc. the caufe was heard ex % irte, &c.
and the plaintiff's father became abfolutely ioreclofed
although the eftate was of much greater value. The defendant
pleaded this decree and report, and both made abfolute, and
inroiled. But the lord Chancellor over-ruled the plea, ob-
ferving that all thofe circumftances of fraud ought to be an-
iwered (<:).]
{"And where a decree has been fo obtained, the court will
reftore the parties to their former fituation, whatever their
lights may be (a?).]
[Befides cafes of direct fraud in obtaining a decree, it feems
to have been confidered, that where a decree has been made
againft a truftee, the ceftuique trull not being before the court,
and the truft not difcovered, or againft a perfon who has made
iome conveyance or incumbrance not difcovered, or where a
(a) 2 P.W. 73. & 3 P.Wi 1 1. where the faft of fraud could
&jt Bro. P.C. 414. [In 3 P.W. not be controverted. Mitf. 84 1
1 11 . it is faid that a decree in fuch (b) 3 Atk. S 1 1 . Ca. Temp,
cafe may be let afide on petition, Talb. 201.
but this was probably meant to (c) 2 P.W. 73.
extend only to the cafe of a de- (,/) Mitf. 84!
(*ree not iigned and inroiled, and
2 decree
9 z BILLS IMPEACHING DECREES, &c.
decree has been made in favor of or againft an heir, when the
anceftor has in fz€t difpofed by will of the fubjecl: matter
of the fo.it, the concealment of the truft, or fubfequent convey-
ance or incumbrance ought to be treated as a fraud (f).]
[It feems Hkewife that where an infant conceives him-
felf aggrieved by a decree, he is not under a neceffity to
itay till he comes of age before he feeks redrefs, but may
apply for that purpofe as foon as he thinks fit ; neither is he
bound to proceed by way of re -hearing or of review, but may
impeach the former decree by an original bill, a bill, in which
it will be enough for hian to fay that the decree was obtained
by fraud and collufion, or that no day was given him to fhew
caufe againft it (/)}?
[A bill to fet alide a decree for fraud, muft ftate the
decree and the proceedings which led to it, with the circum-
ftances of fraud on which it is impeached («•) -J
(r) i Cha. Ca. i si, 15a. & {f) 1 P.W. 736.
3 Cha. Rep. 95. & Mitf. 8 5> -) Mitf. 85,
( 93 )
CHAPTER THE FIFTEENTH.
Bills to carry Decrees into Execution.
rcOMETIMES from the neglect of parties, or fome other
L ^ caufe, it becomes impofhble to carry a decree into exe-
cution, without the farther decree of the court (a). This
happens generally in cafes where the parties having neglected
to proceed upon the decree, their rights under it become fo
embarrafied by a variety of fubfequent events, that it is necef-
fary to have the decree of the court to fettle and afcertain them.
Sometimes fuch a bill is exhibited by a perfon, who was not a
party, nor claims under any party, to the original decree ; but
claims in a fimilar intereft ; or is unable to obtain the determi-
nation of his own rights, till the decree is carried into execu-
tion ; or it may be brought by or againit a perfon, claiming as
alfignee of a party to the decree (£)•]
[The court in thefe cafes in general only enforces, and does
not vary, the decree ; but on circumftances it has fometimes
confidered the directions, and varied them in cafe of a mif-
take (r), and it has even refufed to enforce the decree [d).~]
If a bill be brought to have the benefit of a former decree,
the plaintiff cannot examine witnefles, much lefs the fame
witnefles, to the matters in iflue in the former caufe ; but on
fuch a bill the court may examine the juitice of the former
decree, but then it mull be by proofs taken in the caufe wherein
that decree is made (e).
[Though in other cafes the court, and the Houfe of Lords
upon an appeal, feem to have confidered, that the law of the
decree ought not to be examined, on a bill to carry it into exe-
cution (/).]
Such a bill may alfo be brought to carry into execution the
judgment of an inferior court of Equity (g), if the jurifdi&ion
(a) 2 Cha. Rep. 123. & % (e) 2 Vern. 209. -vide 1 Cha?
Vern. 409. Ca. 43.
{b) I Cha. Ca. 231. 3 P.W. (/) 2 Vef. 232. 6 Bro. P.C.
197. 4 Bro. P.C. 168. 395. and fee alfo 2 Bro. P.C.
(c) 1 Vef. 239. ^23.
(J) 1 Vef. 218. Mitf. 87. {g) 1 Roll. Abr. 373.
of
94 BILLS TO CARRY DECREES, &c.
of that court is not equal to the purpofe, as in the cafe of a
decree in Wales y which the defendant avoided by flying into
England (h), but in this cafe the court thought itfelf entitled
to examine the juftice of the decifion, though affirmed in the
Houfe of Lords (/").
[A bill for this purpofe is generally partly an original bill,
and partly a bill in the nature of an original bill, though not
ftri£Hy original ; and fometimes it is likewife a bill of revivor
or a fupplemental bill, or both. The frame of the bill is varied
accordingly (X').]
fi) j Atk. 408. (/) Dougl. 6. Mitf. 87, (k) Mitf 37 & 88.
( 95 )
^
CHAPTER THE SIXTEENTH.
Informations.
INFORMATIONS in every refpecT follow the nature of
tills, except in their ftyle. When they concern only the
rights of the crown, or of thofe whofe rights the crown takes
under its particular protection, they are exhibited in the name
of the King's Attorney or Solicitor General, as the informant,
and in the latter cafe always, and in the former fometimes,
a relator is named who irt reality fuftains and directs the
fuit (a).]
[It may happen, the relator has an inter.eft in the matter in
difpute, and fuftains the character of plaintiif as well of relator,
and in this cafe the pleading is ftyled an information and bilL
An information concerning the rights of the queen is exhibited
alfo in the name of her Attorney General (£).]
[It feeems upon an information for a charity, relator ap-
pearing to have no title, there can be no decree but\o difmife
the information, and in that cafe colts cannot be given out of
the charity (c).]
[The proceedings upon an information can only abate by
the death or determination of intereft of the defendant. If
there are feveral relators, the death of any of them while there
furvives one, will not in any decree efFe£t the fuit ; but if all
the relators die, or if there is but one, and that relator die, the
court will not permit any farther proceeding till an order has
been obtained for liberty to infert the name of a new relator,
and fuch name is inferted accordingly, otherwife there would
be no perfon liable to pay the colts of the fuit (d), in cafe the
information mould be deemed improper, or for any other
realbn fhould be difmiffed (f).]
[The information muft be drawn or perufed and figned
by counfel, and his Majefty's Attorney or Solicitor General
muft alfo fign it ; whofe fee on this occafion is according
to the length (/).]
[In an information by the Attorney General for the regula-
tion of a charity, it is the bufinefs of the court to give a proper
(a) Mitf. 90 & 91. (./) 1 Vcf 72. 2 Vef. 327.
(b) Ibid. 91. (e) Mitf. 91.
(.-) 1 Vef. J, 246. {J) Hind 74.
direction
9 6 INFORMATIONS.
direction as to the charity, without any regard at all to th^
propriety or impropriety of the prayer of the information •, and
this cafe herein differs from all others, wherein the decree mufl
be founded on the prayer in the plaintiff's bill (g).]
[The difference in form between an information and a bill,
confifts merely in offering the fubjedt, matter, as the informa-
tion of the officer inwhofe name it is exhibited at the relation
of the perfon who fuggefts the fuit in thofe cafes where a
relator is named, and in Hating the acts of the defendant to
be injurious to the crown, or to thofe whofe rights the
crown thus endeavours to protect ; when the pleading is at
the fame time an information and bill, it is a compound of the
forms ufed for each when feparately exhibited (£).]
[It is expected by the Attorney General, that the counfel
who draws the information fhould certify to him before the
information is filed, what is the object of it, and that the re-
lators are reiponiible perfons, able to pay the coils in cafe the
information fhould be difmiffed with cofts, and that it is a
proper cafe for an information.}
fe) i Atk. 355. (/) Mitf.91 £9*
91
CHAPTER THE SEVENTEENTH.
Subpoena*
A Subpoena is a writ by which perfons nre called or fubpcenaed
■** into Chancery, to anfwcr a bill where the common law
hath provided no ordinary remedy. And it is the firft and
leading procelo of th s Court.
After the bill is drawn, ingroffed, 8cc. according to the in-
ilruclions before given, it is to be carried to a clerk in court
to be filed, who firft enters it in his cauie book, and then in the
general bill book at the weft end of the office, after which he
marks it at the top, with the day of the month and year, and
fubfcribes his name at the bottom on the left fide, and
then delivers it to his fix clerk, if in his ftudy, to be filed ;
but if the fix clerk be aLfent, he nuts it over his ftudy door,
and the fix clerk, having entered it alfo in his book, files it.
This being done, the clerk in court or folicitor makes out a
fubpazrin note thus : " Subpcena C. D. Gent, to appear in Chancery
returnable at thefuit of A. B. Efq."
And he mud put his name at the bottom of the note.
This, being entered in his fubposna book, it to be carried
to the Subpcena Office, with 4 s. if but one or two defendants'
names ; but if three defendants' names, you pay 4 s. 6 d., upon
which they make out the fubpcena, and get it fealed ; after
which it is left at the clerk in court's feat, by the bag bearer
of the office, or if befpoke by the folicitor, it remains in the
office for him to fend for, or fetch it.
Form of a Subpcena to Anpwer.
George the third by the grace of God, of Great Britain,
France, and Ireland, King, defender of the faith, &c. To
A. B. C. D. and E. F. greeting. For certain caufes offered be-
fore us in Chancery, we cosamand and ftridTly injoin you, that
laying all other matter afide, and notwithftandiug any other
excufe, you perfonally appear before us, in our faid Chancery
the day of inftant, (or next enfuing) wherefoever
it fhall then be, to anfwer concerning thofe things which (hall
be then and there objected to y< u, and to do farther, and
receive, what our faid court {hall have coiifidered in this
Vol. I, H behalf 5
9 8 SUBPOENA.
behalf ; and this you may nowife omit under the penalty of
one hundred pounds •, and have there this writ. Witnefs our-
felf at fVejlminfler the day of in the year ot
our reign.
To each of thefe fubpoenas containing more names tnan two,
there are two labels or fmall flips of parchment, containing all
the defendants and the plaintiff's names, and the day of appear-
ance, &c. and there cannot be above three defendants' names m
onefubpoena. But as hufband and wife are accounted but as
one pcrfon, fo their names are alio accounted but as one.
You muft take care or rather the officer of the Subpoena Office,
who makes out the fubpoena ought to take great care, that there
be no miftake in the body of the fubpoena ; for if there is, and
any of the defendants find it, he may take advantage of it and
refufe to appear to the plaintiff 's bill ; and if profecuted for
want of an appearance, he may refer the fervice of the fubpoena
for irregularity, and obtain cofts, and the officer of the Subpoena
Office who made out the fubpoena is in ftriftnefs liable to pay
thofe cofts. j.
[This writ hath two returns, the ordinary and extraordi-
nary (a).]
|The ordinary return is upon a general return day, or any
day certain in term ; for ordinarily no fubpoena is returnable in
the vacation (b) ]
When a defendant livas in town, or within twenty miles on
an affidavit (c) made, and filed thereof, you may either peti-
tion or move for an order for a fubpoena returnable immediately,
againft the defendant, and then carry your order and pracife
for a fubpoena ret. immediate to the Sulpoena Office, for luch
fubpoena to be made out ; but &tte fubpeenas are feldom made
out but in vacation time ; for in term time it is needlefs to have
it returnable immediate, for k may be returnable any day m
term at the option of the plaintiff.
If the defendant lives in London the affidavit is thus : " be-
tween A. B. plaintiff, C. D defendant. A. B. the plaintiff in
this caufe maketh oath, that the defendant C. D.hves in Friday-
dreet (or other place) in the city of London.
^ 13 Sworn, &c.
But if the defendant lives near London, then the affidavit is
thus- " A. B. &c. maketh oath, that the defendant CD. lives
at, Sec. which faid place is about miles diftant from London.
(a) Hind. 77. againft an officer of the court,
(6) Ibid without the ufual affidavit, be-
(c) The 'plaintiff may fue his caufe he is prefumed always to
fubpxna returnable immediately, attend. Mofely 42.
SUBPCENA. 90
For a petition for a fubpcSna returnable immediate, vidt
Petitions.
When the bufmefs is done at a general feal, you pay as afore-
faid ; but if it be at a private feal, (which in cafes of great
importance may be neceffary) you pay two guineas for opening
the feal, over and above the fees of the writ ; but you
pay no more than 3 s. 6 d. extraordinary for fealmg every
common writ, where a private feal is obtained on any
extraordinary occafion for fealing a commiffion of bankruptcy
or the like.
[An affidavit is ufually fvvorn before the mafter at the
Public Office, and having given inftructions to counfel
with the affidavit to move for a fubpoena returnable imme-
diately, after the motion is granted, the affidavit muft be
filed at the Affidavit Office in Staples Inn, and having got a
certificate thereof, the counfel's brief, and the certificate muft.
be brought to the Regit! er Office, and the order befpoken ; with
which 4 s. 6 d. is to be left ; the next ftep is to pafs the order
at the fame office, and a copy of it being made and carried with
the order itfelf to one of the entering clerks in the fame office, he
will mark it entered, for which 1 s. 6 d. is to be paid, and the
order and precipe being carried, and left at the Subpoena Office,
the clerk will make out the writ (d).~\
[A clerk in Chancery was committed for fending writs into
the country with foft yellow wax upon them, without being
fealed with the great feal, a high mifdemeanor next to coun-
terfeiting the feal, and he was bound in 1000 1. with two more
fa 500 1. each for his appearance (e).~]
Where there are many plaintiffs, all of them need not be
named, either in the precipe or writ, but only fay, at the fuit
of the firft plaintiff, and others ; or if there be two plaintiffs
fay, the firft plaintiff and another. But all the defendants are to
be named.
[By flat. 4. Ann. c. 16. no fubpoena or other procefs for ap-
pearance flia.ll iffue, till after the bill is filed with the proper
officer, and a certificate thereof brought to the Subpoena Office,
except in cafes of bills for injunction to flay wafte, or flay fuits
at law commenced. And although folicitors, through ignorance
or inattention, frequently fue out and ferve this writ before the
bill be filed, taking care to file the bill on the return day, yet that
practice is altogether irregular, except in cafes in the ftatute ex-
cepted ; and the plaintiff does it at the rifk of ccfts. To prevent
(J) Hind. 79. 0) Wy. Prad. Reg. 406.
H 2 which,
ioo SUBPCENA.
which, the Six Clerk will fometimes antedate the bill ; but by an
oider made by lord Clarendon, all bills are to be dated the
fame day they are brought into the Six Clerk's Office, and no
Six clerk to prefume to antedate any bill, Ord. Chan. 93 ; and in
this cafe, if defendant be ferved with this writ, and before the
return, he inftrufts a clerk in court to fearch if any bill be
filed, and it appears no bill is filed, he may prefer coils, unlefs
it be an injunction caufe. Hind. 76 8c 77.]
( ioi )
CHAPTER THE EIGHTEENTH.
Letter MiJJive.
•\TT /HERE a defendant is a lord or peer or a bifhop of this
* * realm, you pray in the procefs of your bill for the lord
Chancellor's letter "miffive to be directed to fuch defendant,
defiring him to appear to and to anfwer the faid bill. [The fame
refpe£t is (hewn to a peerefs, either in her own right, or a
dowager of a peer.]
[Since the union with Ireland, Irijh peers, with the excep-
tion of thofe who are members of the Houfe of Commons, are
entitled to the letter miffive. 8 Vef. 60 1.]
After fuch bill filed, you petition the lord Chancellor
for his letter miffive, defiring the faid defendant to appear at
a certain clay, which muft be in term time, unlefs upon
affidavit of the defendant's refulence within ten miles of
London, the lord Chancellor thinks proper to defire his im-
mediate attendance. This letter muft be delivered to the
defendant or left at his houfe with an office copy of the
faid bill figned by the Six Clerk ; and if he refufes, upon
fuch fervice to appear thereto, you then ferve him with a
fubpeena, in the fame manner as any other defendant to ap-
pear to the faid bill ; which if he refufes to do, then, upon
making an affidavit of ferving the defendant with fuch letter,
petition, copy of the bill, and [ubpeena \ you then upon filing
fuch affidavit, move the court for a fequeftration againft the
defendant to fequefter his perfonsl eftate and the rents and
profits of his real eftate, which the court grants of courfe,
unlefs the defendant being perfonally ferved with fuch order,
fhall within eight days after fuch fervice fhew unto the court
good caufe to the contrary. And if after the defendant, is
ferved with this order, he ftill perfifts in refufmg to appear
to the plaintiff 's bill, then upon making an affidavit of the
fervice of this order, you may move the court after the eight
days are expired, to make the order abfolute. And when fuch
order is drawn up and entered, you may have the fequeftration
made out againft the defendant. And the fame method is ob-
ferved againft a defendant a member of parliament for
want of his anfwer or for non-performance of a decree, &&.
after being ferved with a writ of execution thereof \ for his
H 3 bo^f
io2 LETTER MISSIVE.
body cannot be attached by reafon of his being a member of
parliament.
[The court will not difcharge the fequeftration, till the
party has appeared and paid the cofts of the procefs ; and then
he may move to difcharge the fequeftration upon notice to the
adverfe party, if it be executed, which will be granted of
courfe (a).]
[Per'fonal fervice of the order nift> in cafes where the peer
keeps within his own houfe to avoid fervice, or the party
ferving the procefs is denied accefs, and it is very difficult
and almoft impoffible to ferve the order perfonally, may
be difpenfed with ; in order to do which, it is neceffary to
apply to the court to fubftitute a fervice by leaving, in lieu of
perfonal fervice, grounding fuch application upon a proper
affidavit of the particular circumftances of the cafe ; upon
which the court will exercife a discretion and make the order,
if the fads dated in the affidavit are ftrong enough to warrant
fuch a proceeding (£).]
[The original letter with a copy of the petition as anfwered,
and an office copy of the bill as before directed, muft be
ferved perfonally or left at the defendant's place of refi-
dence (*•).]
[For a petition to the lord Chancellor for his lordfhip's
letter miffive to a nobleman, and the form of fuch letter,
vide Petitions^
(a) Hind. Si & 82, (*) Hind. 82. (c) Ibid,
( J03 )
CHAPTER THE NINETEENTH.
Of the Service cf the Writ of Subpoena.
A Subpoena may be made returnable, and ferved the fame
-*- *• day on which it is fealed ; but it muft be ferved before
the court rifes, otherwife it is not good fervice, and the de-
fendant is not bonnd to appear thereto.
It muft be ferved before noon of the laft day of the return,
and is good fervice in the night, if before the return, or on a
funday, if the fuhpeena be not returnable that day.
[Service on the return day is good, if before 12 o'clock at
night (a).]
This writ is to be ferved before the return thereof, either by
delivering the writ itfelf tinder feal to the defendant, or by fhew-
ing him the fame under feal, and delivering him the label there-
of. And when there are more perfons than one in the fubpoena,
it is ufual to have a label, which is always perfonally ferved on
the fir ft of the defendants you can meet with, and the body under
feal fliewn to him ; and if there be three defendants you have two
labels to your fubpoen a ; and the next defendant you can meet
with, you muft alfo perfonally ferve with the other of the
labels, and alfo fhew him the body under feal ; and then
the body of the fubpoena under feal may either be delivered
to the laft defendant, or it may be left at his dwelling houfe
with one of his family, or with the mafter or miftrefs or
fervant of the houfe where the defendant lodges ; and the body
of the writ under feal muft always be fliewn to fuch defendants
as are ferved with the labels.
[And fervice on the wife is good fervice on the hufband, if
the body be left with her under feal at the hufband's place of
abode, becaufe it is prefumed to be fufneient notice to the
other; but leaving a label with the wife has been doubted if
good fervice on the hufband (/>).]
[Where the hufband only is ferved with -x fubpoena again ft
him and his wife, it is good fervice upon both j and for want
(a) Hind. 83. (b) Hind. 84.
II 4 of
104 OF THE SERVICE OF SUBFCENA.
of an appearance for himfelf and his wife, an attachment may
iflue againft him (r).]
A. who ferved the fuhpcena depofed, that he hung the fame
upon B.'s door, and within half an hour after, faw him abroad
with a writ in his hand, which he fuppofed to be the f/bpcena.
Attachment awarded, and B. committed to the Fleet for his
non-appearance (d).
It has been held good fervice, if a perfon keeps the door of
his houfe fhut, and refufes to open it, to leave the writ under
feal hanging upon the door of the houfe, or to put it into the
houfe under the door, or within the windows j. but none of
thefe are good fervice, unlefs it can be proved that fuch
fuhpcena afterwards came to the defendant's hands, and he was
in the houfe at that time, or had notice of it, &c.
It is conceived, that the Label ought to be left with the party
himfelf, and that the leaving thereof with his wife or fervant
has been often doubted whether it be good fervice or not ; but
any neglect of this kind feems to be falved- by the parties' fub-
fequent appearance.
If the defendant cannot be found, or be beyond the feas, on
affidavit thereof, if the bill is to be relieved againft an action
at common law, then the court will on motion or petition
grant an order, that fervice on his attorney at law be deemed
good fervice of the defendant, and fuch order and fuhpcena
beins* ferved on fuch attorney, he is bound to appear, and if
he refufes, on an affidavit being made of ferving fuch attorney
at law with fuch order, and fuhpcena and the affidavit being
filed, you may make out an attachment againft the defendant for
want of an appearance, and thereupon move the court for the
common injunction to ftay the defendant's proceedings at com-
mon law againft the plaintiff, which is granted of courfe.
[Two defendants had brought a joint aiiion at Leghorn
againft the plaintiff, and had there arrefted his goods, and the
defendant Baker being now here, and the other at Leghorn,
and a bill being filed againft them, Baler put in his anfwer.
And it was ordered that a fuhpcena being left -with him, fhould
be good fervice on the other defendant who was at Leghorn ;
and thereupon an attachment for want of an anfwer and fo
an injunction to ftay preceedings at Leghorn. But the lord
Chancellor faid he would advife with the judges ; which after-
wards he faid he had done ; and their opinion was, that the in-
junction ought to be diffolved. But the reporter fays, that all
the bar were of another opinion ().]
[The court will order that the fervice of fubpeena to anfwer an
amended bill upon the defendant's clerk in court or folicitor
to be good fervice, where though the defendant had never been
ferved with a fubpeena, he had appeared upon two motions, and
his anfwer will be important, and he lived abroad out of the
jurifdiclion, and will not appear to anfwer (/).]
[Where infants are parties, and the mother fecrets them, fo
as they connot be ferved, a fervice upon the mother is fufficient \
as flie is the natural guardian (£).]
[Service of fubpeena upon the father-in-law of the infant is
good fervice (/).]
[A defendant having been a lodger in London, and not now to
be found, the plaintiff obtained an order that fervice of procefs to
appear and anfwer at his laft place of abode fhould be deemed
good fervice ; and left the fame at the houfe where he fo
lodged ; but it being above twelve months lince the defendant
had left that lodging ; the fervice was held not good (w).]
[Defendant lived at Epfotn above ten miles from London, and
being a Barrifter he had chambers in the Temple, but had little
or no bufinefs. A fubpeena returnable immediate was moved
for upon an affidavit ; Hating, that defendant's place of abode
was at Epfom, but that he had chambers in the Temple anil
refided there. Lord Thurlow faid, that as it did not appear
(/)Bunb. 170. (/) 2/\tk.7o.
(g) Hind. 90 & 91. (/) 8 Vef. 141.
(h) 4 Vef. 359. (?«) 2 Vern. 369.
(i) 6 Vef. 171.
his
io6 OF THE SERVICE OF SUBPOENA..
his place of abode was in the Temple, he would not make
riny order (/.') ]
[Defendant, a member of the Houfe of Commons having a
houfe at Southampton, and no town refidence, was ferved with
a fybpeena returnable immediate in Loudon at a friend's houfe,
with whom he was upon a vifit ; for default of appearance, a
iequeftration had been awarded ; and a motion was made at
the»inflance of defendant to fet the procefs afide for irregu-
larity. Lord Thurlow could not fuppofe that defendant, a mem-
ber oi parliament, during the fe.fiions of parliament, had no
town refidence, or that the refidence above ftated fhould not
be taken as a refidence quoad defendant, whofe duty it was
to attend and who acluaily did attend the houfe ; and his
Lordfhip refufed to grant the motion (o).~\
[Defendant having a town refidence and a country refidence,
zfubpeena returnable immediate was ferved upon her by leaving
the body under feal at her houfe in town, defendant at that
time being at her houfe in the country (Pcnfjwjl in Kent)
above ten miles from London ; defendant appeared gratis as in
a town caafe, and obtained by petition the ufual order in a
country caufc, viz. a commiflion to take her anfwer and fix
weeks time to return it. Plaintiff moved to dilcharge thig
order for irregularity, but lord Thurlow refufed the motion,
and; laid it is not conclufive evidence that it is a town caufe if
ihe appears in a town caufe ; but rather as if fhe was defirous
of expediting the caufe and here fhe has appeared gratis (/>).]
[If the defendant be a member of the Houfe of Commons,
.111 office copy of the bill figned by the proper Six Clerk, or his
deputy, mult accompany the writ, and may be ferved perfohally,
or, which is more convenient and moll ufual, by leaving the
Jukpcsna under feal and copy of the bill at the defendant's dwel-
ling houfe or place of refidence, with one of the family (q).~\
[By an order of 28th November 1743, members of either
houfe of parliament are not obliged to pay for or to take out
any other copy upon their appearing thereto (*').]
[If a bill be filed againft a corporation, the procefs muft
be ferved upon fome one of the members (j - ).]
[The court, on motion, will order leaving a fubposna with
the turnkey of a prifon to be good fervice on a prifoner at
large : if the defendant be in clofe cuftody, fuch fervice is good
without motion (/}.]
(h) Hind. 92. (r) Hind. 87.
(0) Hind. 92. (s) Hind. 87.
'/>) Hind. 92 & 93. (/) Hind. 85.
( ? ) Hind. 87.
[Defendant
OF THE SERVICE OF SUBPCENA. 107
[Defendant made oath, that he was ferved with afubp&na by
plaintiff in the name of William Webb, utterly unknown to
the defendant, and now upon his appearance, no bill in court
a ainlt the defendant in the name of the faid William Webb,
or of the plaintiff, therefore 30s. cofts are rewarded againft the
plaintiff (w).]
[If upon a copy ferved, and the writ fliewn, the perfon fpeaks
with contempt before he knows the contents, or from what
court it iffued, it will be a contempt (x).]
[If the contempt be by abufive actions, as beating or abufing
the perfon who ferves the procefs, the offender ihall be on
motion committed upon an affidavit thereof, without examina-
tion (v). So of contemptuous words, he fhall be committed upon
the affidavits of two perfons without further examination ;
and a fingle affidavit in fuch cafe is fufli:ient to ground an
attachment, upon which he fhall be examined, and if the mif-
demeanor be confefied or proved, be committed. And if he
(hall not thereof be found guilty, fave by the oath of the party
who made fuch affidavit, he fhall be difcharged, but without
cofts, in refpe£t of the oath made againft him (2).]
[Though contemptuous words were fpoken otzfubpaena, and
the perfon ferving it feverely beaten, yet as thefe facts were
proved by the oath of a fingle witnefs only, the court would not
in the firft inftance order him to (land committed, but made a
rule upon him to Ihew caufe, why he fhculd not ftand com-
mitted (a) ]
[A counterfeit fubpeena does not oblige •, and whofoever
ferves it, if he knows it, mifbehaves himfelf ; and an attach-
ment will go againft him (b).]
(nv) Cary92. (a) Ord.Can. 116.
(x) Mod. Ca. 43. (a) 3 Atk. 219.
(j) Ord.Can. 116. {b) Hind. 86,
( ioS )
CHAPTER THE TWENTIETH.
Appearance.
\ F the defendant lives within (20) miles of London, he has
*- four days to appear in, after the return of the fub-pcena^
unlefs it was fervcd four days before the return, and then he
ought to appear at the return day or next day after at fartheftj
but if he lives beyond that difLance then he has eight days
after the return ; yet if ferved eight days before the return, he
ouohr to appear on -the return day or next day after. But if
the defendant living within 20 miles of London, be ferved fix
or feven days or more before the return, then he fhail appear
at the return day, or the next day after. And fo if he be ferved
one, two, or three days before the return. And if he lives
beyond that diltance, the)', if he be ferved, either the morning
of the return, or one clay before, in fuch cafe he hath eight
days to-appear •, but where he is ferved eight days or more
before the return, he has only one day at moft after it, to
appear in. And this I think, is the (trick practice of the
court. (The defendant has alfo the fame time to appear, where
the fubpeena is returnable immediately.) But yet if a de-
fendant lives twenty miles from London, he is entitled to
anfwer by commiffion, and then he has ufually time till the
firft return of the enfuing Term, or longer on caufe fhewn by-
motion or petition.
[When hufband and wife are ferved with a fi/bpccna, or if
the hufband be only ferved, and hath notice that his wife is
alfo a defendant, he muit appear for both, other wife an at-
tachment mav in the firft cafe go againlt both, in the latter
againft him («).]
[Bill againft hufband and wife, the hufband only appeared,
and put in a demurrer in their joint names ; for the non-ap-
pearance of his wife, attachment againlt both (b) ]
[If a wife is fued in reipect of an agreement contained in
* a note given by her to pay a debt oi the hufband's out of her
0) Wy. Prad. Reg. 37. (b) Cary. 55. 92.
own
APPEARANCE. Ico .
own feparate eftate, and her hufband is out of the realm, Ihe
may be taken upon an attachment for non-appearance (c).~\
[In a bill againft hufband and wife, procefs of contempt
iffued againft both, upon which the wife only was taken, and
gave bail bond for her appearance ; held that the irregularis
was waived by her having appeared, and afterwards having
applied for, and obtained time to anlwer feparately ().]
[The perfonai fervice of the order nift for a fequeftration
may be difpenfed with, if defendant keep within his houfe,
(/) Hind. 96. fo under feal
as aforefaid, and this deponent farther faith, that he did on
the day of ferve the other defendant G. H. with the
{aid fubpcena, by leaving the body of the faid fubposna, fo under
feal as aforefaid, at the dwelling houfe of the faid defendant
G. H. with a perfon who informed this deponent he was a
fervant to the defendant G. H. by which faid jubpxna the
faid defendants were directed to appear to this honourable
court, the day of at the fuit of the faid A. B. as
appeared to this deponent by the label of the hid fubpeena.
A. B. Sworn 3 &c.
( "5 )
CHAPTER THE TWENTY-FIRST.
Attachment.
7 F the defendant does not appear on being ferved with procefs
-■" olfubpcena in order to anfwer, then upon affidavit of fen ice
of iheful'pcena, an attachment may be iflued againft him \ and
if a non e/l inventus is returned by the fheriff, an attachment
with proclamations directed to the fherifF may be ifTued ; and
this being alfo returned non ejl inventus ; and if he (lands
further in contempt, then a commiffion of rebellion directed
to four or more perfons, commiiTioners, maybe iflued for ap-
prehending him, and taking him into cuftody, who may either
detain him in cuftody, or bring him into court; and the
court will make an order to deliver him to the warden of the
Fleet, if taken in London, and if taken in the country, may
deliver him to the county gaol ; in the execution of which com-
miffion the perfons to whom it is directed may, with the affiff-
ance of a conilable juftify breaking open doors, if they knew
the perfons to be within houfe. And if the defendant Hands
further in contempt, then on a non e/l inventus returned by the
commiffioners, you may move the court upon the faid com-
miffion of rebellion (which mult be produced) for a ferjeant at
arms. And if he cannot be taken, on the ferjeant's certifying
the fame, you may move upon his certificate for an order for
a fequeltration, directed to certain commiffioners to fequefter
the defendant's perfonal eftate, and the rents and profits of his
real eitate ; until anfwer, and further order ; by virtue of
which order a fequeftration is ifTued,
[When the party has been regularly ferved with the fiibpa.'tia s
and neglects, or Tefufes to appear, he is faid to have incurred
a contempt of court, and unlefs he be privileged, the ordinary
procefs to enforce obedience to the rules and orders, or de-
crees of the court by parties to the fuit Handing out in con-
tempt, is awarded againft him (a).]
An attachment is the firft procefs of contempt in this court.
And as it is always founded upon fome contempt of the court,
io it is moft commonly for not obeying the procefs or orders
of the court.
fa) Hind. 99, and 100.
I 2 An
n6 ATTACHMENT.
An attachment (which is derived from the French, fignifying
to take or apprehend by commandment of a writ or precept)
differs from an arreft in that, he that arrefleth a man carrieth
him to a higher power to be difpofed of; but he that at-
tached*, keepeth the party attached, and prefents him in
court at the day affigned as appears by thefe words of the
writ, pracipimus tibi quod attachias talem et habeas eum coram
nobis, CSV.
[An attachment lies for any contempt, as for not appearing,
not arifwering, or anfwering infufficiently, &c. (b).~]
[An attachment may be granted againft a folicitor for negli-
gently managing his clients bufinefs (r).]
It may generally bejiad of courfe upon affidavit, that the
defendant was ferved with a fubpeena, and appeared net; or it
may be had after an appearance for want of an anfwer without
an affidavit ; but it is upon affidavit for non-payment of coils,
or the non- performance of an order or.decree.
[No clerk of this court {hall iiTue any attachment for not ap-
pearing, but upon affidavit fir ft made, pofitive and certain, of
the day and place of fervice of xht fubpoena, and the time of its
return, whereby it fhall appear that fuch fervice was made, if
jn London, or within 20 miles thereof, four days at leaft,
and if above 20 miles, then eight days, before fuch attachment
entered excluding the day of fervice (d).~\
[The plaintiff was arrefted under an attachment for breach
of a writ of execution of the decree, no affidavit having been
filed in the affidavit office. The court did not decide upon the
pradlice ; but faid thev would make an order, that no fuch
procefs fliould iffue in future without an affidavit previoufly
tiled (f).]
A folicitor muft ferve his client with the order for taxing
his bill of ccfts, and the mailer's report whereby fuch
cofts are afcertained, before he can take out an attachment
for them (f).
[The court refufed to make any order for an attachment on
affidavit of breach of an injunction, for the clerk in court is dp
it of courfe if he fee caufe on a fufficient affidavit (#).]
[All procefs of contempt fhall be made out into the county
where the party profecuted is refidem, unlefs he fhall be then
in orjibout London ; in which cafe it may be made in the
(b) Hind. 100, (/) Barnard 266.
(c) 3 Atk. ,568. (g) Wyatt's Pratt. Reg, 47,
(d) Ord. Ch. 99, and 48,
(*; 7 Vef.357.
county
ATTACHMENT. 117
county where the party then fhall be, and if any perfon fhall
be taken upon procefs otherwife or irregularly iffucd, the party
fo taken firft appearing unto, and fatisfying, the procefs which
did regularly iifue againft him, fhall be difcharged of his con-
tempt, and have his full cofts to be taxed of courfe by the fix
clerk, (but now by the mailer) not towards the caufe, for fuch.
undue or irregular profecution from the time that the error firft
grew without motion or other order (A).]
[No procefs of contempt mall be made forth, and fent to the
great feal at the fuit of any perfon profecuting in farmd
pauperis, until it be figned by the fix clerk, who deals for
him ; and the fix clerks are to take care, that fuch procefs be
not taken out needlefsly, or for vexation, but upon juft and
good grounds, as they will anfwer it to the court if the con-
trary fhould appear (/).]
[If an attachment be irregularly obtained, it may be dif-
charged upon motion (£).]
Attachments muft be entered in the register's book, (and
formerly they were alio entered in the houfe book, but this lalt
is now difufed) expreffmg the caufe of ifTaing the attachment.
But the party, that makes out the attachment, ufually firft
acquaints the adverfe clerk in court ; but this he needs not do,
unlefs he pleafes (/) .
[An attachment for non-appearance was taken out before
the bill was entered in the bill book, though filed in the fix
clerk's office. Lord Chancellor feemed to think an entry in
the bill book neceflary to give the party notice ; for private
notice to his attorney is not fufficient ; but being doubtful of
the courfe of the court, he referred it to a mafter. It is not
the 1 practice now to take out the fubpeena before the bill
filed O).]
[This writ muft be made returnable in term. And there
muft be 15 days between the tefte and return in proceeding to
a fequeftration, or to take a bill pro confejfo, unlefs defendant
live within 10 miles of London, and then an order may be
obtained by motion or petition to make the feveral procefles of
contempt returnable immediate («).]
In thefe attachments, and all other writs regard is to be had
to the jurifdi£tion and privileges of certain places, as the
Cinque Ports, and the counties palatine of Lancafter, Chefter,
(h) Ord. Cha. 112. (hi) 1 Vef. 53. & Wy. Pratt.
(i) Ord. Cha. 125. Reg 51. & 52.
[k) Hind. 108. (n) Hind. 100.
(/) Vide 2 P.W. 657.
1 3 and
n8 ATTACHMENT.
and Durham; and the direction of the writs in fuch cafes iso*
a peculiar form. As for inftance, where an attachment iflues
againft an inhabitant of Haftings, Rye, Romney, 8tc. it is
directed to the lord Warden of the Cinque Ports.
[An attachment for non- performance of an order againftone
in the Fleet is directed to the warden of the Fleet; and on
his return that he is a prifoner, you may move for a fe-
queflration (0).]
[A defendant was in contempt •, the plaintiff fued an attach-
ment into Kent, and another into London, and arretted the
defendant on each. Upon fhewing this to the court, cofls
were ordered to be taxed by a mailer for the irregularity and
vexation ; but in-regard the plaintiff was poor, the court on his
prayer or motion, ordered the cofts to be paid the defendant out
of 600/. decreed the plaintiff, and refting in court, and the de-
fendant was fet at liberty without entering his appearance with
the regifter ; for the court faid none fhould take advantage of
his own wrong (p).~\
[Every fuitor who profecuteth a contempt fhall do his beft
endeavour to procure each feveral procefs to be duly ferved and
executed upon the party profecuted ; and his wilful default
appearing therein to the court, fuch perfon offending fhall pay
unto the party aggrieved good cofts, and lofe the benefit of the
procefs returned without fuch endeavour (])■']
Obferve, that in all cafes where the flierifF does not make
his return of the writ, if directed to him, this court will
amerce him ; which amercements are to be eftreated in the ex-
chequer, and are commonly five pounds. But it is ufual to
give the flierifF a ctay for that purpofe : and if he do not by that
time return the writ, the court fetteth the amercement. And
fometimes the court upon a notice of motion ferved on the
fheriff or under flierifF, will order him to ftand committed to
the Fleet prifon for not returning the attachment or other
procefs.
If you make any attachment returnable three or four days
after the tefle, if you arreft the body it is good ; but if you
fuffer the return to expire, and do nothing upon it, and then
be obliged to make out another attachment, here you
will be allowed but for one writ in cafe you do any thing
upon the fecond. After a writ of execution and an attach-
ment returned for not performing a decree, the court will
(0) Mof. 301. 3 P. W 55. (?) Ord. Cha. 11a.
) 3 Atk. 507. 2 Bro.C.C. (•=) 1 Atk. 53.
181. 1 Vera. 116 & 154, 2 P.W, (a) 2 P.W. 657.
301. (<5) Ord. Cha. 95.
(*■) 1 1 Vcf. 1 70.
(;-) 1 Vera. 544.
had
ATTACHMENT*. 121
had of the fame contempt, the party profecuted fhall be
difcharged with cofts (
what the faid court fliall award or order in that behalf; then
the prefent obligation to be void, or elfe to remain in full
force and virtue, ).]
[Upon a return- of mn ejl inventus by the commiffioners or
(I) Sed vide Studd v. A6ton,. to bring l.im up without delay to
iH. Black. 475, where Ld.Rofdyn the court of Chancery ; there are
thus exprefles hirofelf, " There cafes indeed where they may not
fs an in e'euracy of expreflion in take bail, &e." et vide 1 Cha.
Harrifon's Chan. Pracvt. where it Rep- 262.
Vt f id that the cotfTmiffionerff (e) Hind. 117. Bunb. 50.
ought to ia ! ;e bail and i.ot keep (d) Hind. 119.
the parly lingering in prifon in (1?) Hind. 119,
their houfes; They ccitdiiily (/) Hind. nS.
have no right to keep the perf 11 (g) Toth. 38.
arreiled in prifon ; their duty is [h) Toth. 49.
COMMISSION OF REBELLION. 13.1
any two of them, the court will on motion order the party to
ftand committed, and to that purpofe the lord Keeper grants
his warrant to the Serjeant at Arms (*).]
[If the defendant be taken upon „ commiffion of rebellion,
Which iffued irregularly, the defendant mail have colts '/:).]
[And ii an action at law be brought for an afiault and
battery, or falfe imprifonment in executing a commiffjon of
rebellion, an injunction will be granted, becaufe the irregula-
rity ought to be punifhed in this court, and can only be deter-
mined and examined here ; at law, iuppofing the pommtffiop
iffued regularly, they will not allow that as a justifica-
tion (/).]
[It is agreed on all hands a commiffion of rebellion maybe
executed on a Sunday, though it iffued for want oi an appear-
ance or for want of an anfwer only (w).]
[Though a commiffion of rebellion may be executed on a
Sunday, yet the Chancellor faid that he mould much difap-
prove fuch an execution of it, unlefs in caies of abfolute
neceffity, and if executed in church would punilh the commit-
fioners, and that they would have been puniihable at law (»).]
[The return to this procefs is made by two or more of the
comrniffioners, who act under it-, if they refufe or neglect: to
make a return, the court on motion or petition will order them
to return it, and upon difobediem e to the order, the court will,
upon motion grounded upon affidavit oi fervice of the
order, commit them ; for, not being parties to the fuit, no
writ of execution of the order is required to bring them into
contempt (o).~]
[A commiihon of rebellion for non-performance of cofts
was awarded againft defendant to one John ap Davie/, who
did thereupon apprehend defendant, and for his more fate
keeping delivered him to the fheriff, who took charge of the
prifoner accordingly ; and now refutes either to deliver the
prifoner to the commiffioner, or to bring him himfelf into
court at the day. A day is therefore given to the faid fheriff
to bring into this court the body of the faid defendant by
Thurfday next, upon pain of ten pounds (/>).]
[This procefs is made out by the clerk in court upon pro-
ducing the writ of attachment with proclamation returned non-
eft inventus by the proper officer ; the form of the writ is as
follows [q) •:]
(i) Wy. Pratt. Reg. T30. (n) W T \. Pratt. Reg. f3I.
(/•) iVern.260. (0) Hind. 1 >Q & 120.
(/) i Vero. 269. (p) Cary*s Rep. 115.
(ws) Arg, I Atk- 57. (£) Hind 12©.
K 2 GommiflSen
132 COMMISSION OF REBELLION.
Catmrii/Jion of Rebellion.
George, the third by the grace of God, of Great Britain 9
France, and Ireland, king, defender of the faith, ecc. To A. B.,
C D., L. F», and G. H, greeting. Whereas by public procla-
mations made on our behalf by the fherifFof Middlefex in divers
places of that cuunty, by virtue of our writ to him directed,
I. K. hath been commanded upon his allegiance perfonally to
appear before us in our court of Chancery at a certain day now
pail, yet he hath manifeftly contemned our faid command.
Therefore we command you jointly and feverally to attach or
caufe the faid A. B. to be attached wherefoever he fhall be
found within our kingdom of Great Britain, as a rebel and a
contemner of our laws, fo as you have him or caufe him to be
before us in our faid court on wherefoever it thai! then be.,
to anfwer to us as well touching the faid contempt, as alfo
fuch matters as fhall be then and there objected againft him,
and farther to perform and abide fuch order as our faid court
fhall make in this behalf. 'And hereof fail not. We alfo-
hereby ftriclly command all and lingular mayors, fheriffs, bailiffs,
conitables, and other oar officers ana loyal fervants and fubje&s-
whomfpever, as well within liberties as without, that they b?
ail proper means diligently aid and affiit you and every one oi
you in all things in the execution of the premifes. In teftimony
whereof we have caufed thefe our letters to be made" patent,
Witnefs ourfelf at Weftminfter this day of in the
year of our reign.
To this writ fubferibe the Mafcerof the Rolls and Six Clerk'*
names as before, and indorfe it, u By the court. A commiffion
of rebellion for want of an appearance, (or want of an anfwer)
st'the fuit of C D." And towards the bottom put the Six
Clerk's furname, And after that the ckrk in court's fur-
name.
When you have made out the com million of rebellion:
. you mult take two docquets thereof, one upon a half fheet
of the treble iixpenny ftamp paper, and the other upon a
half meet of paper uuilamped, the form of which docquett
is thus :
The king and fo forth. A commiffion of rebellion direc^etl
to A. B., CD., E.F , an&G.H. jointly or feverally, to attach
J. K. defendant, for want of an appearance (or for want of
an anfwer) at the fuit of L. M. plaintiff, returnable
Witnefs the king at Wjt/lmttifter the day of in the
year of his reign.
Here put the Mailer of the Rolls and Six Clerk's names j,
after
COMMISSION OF REBELLION. 133
after that fold it up as you do an order, and on the back of the
docquets, write at the top, comrniffion of rebellion M. againft
K , and towards the bottom, the Six Clerk and clerk in
court's furnames, and then give both thefe docquets with
the commiflion to the bag bearer who will get that docquet
that is (lamped figned by the Lord Chancellor* and after that
jeave it with the clerk of the Hanaper Ofiice, and the oilier left
with one of the entering regiiters, who marks the docquet
flam pel with an intratur before it be figned by the Lord
Chancellor.
If the defendant is in contempt to a Serjeant at Arms for
not anfwering, and then puts in an insufficient anfwer, and
the plaintiff s clerk in court accepts the coils, it purges the con-
tempt, and the plaintifF mufl begin again with an attachment,
the fir it procefs ; but if the colls be not accepted, the plaintifF
may go on with his procefs for contempt where he left off for
a further anfwer (rj:]
Th?re mufl be fifteen days between the tejfe and return
of this and the feveral proceifes in proceeding to fcqueftra-
tion, unlefs an order be obtained to make it returnable
immediate.
[The defendant was apprehended upon commiflion of
rebellion where neither attachment nor proclamation were
entered with the regifter, therefore difcharged for the com-
rniffion of rebellion and contempt ; and Thomas Flowir
one of the clerks of the court that made out the commiflion
of rebellion, to pay the defendant fuch colts for his vexa-
tion as doctor Lewis, one of the Matters of this court.,
fhall affefs (j).]
(r) 1 P.W. 48 1. fed vide 2 Vef. 1 10. (A Kind. 1 a 2 .
K.s
C 134 )
CHAPTER THE TWENTY-FIFTH.
Serjeant at Arms.
f~^r~HE next procefs after a. commiffion of rebellion is a
*■ ferjeant at arms, which is granted on motion upon the
return of non eji inventus upon a commiffion of rebellion («)■]
By an order of the 12th of June, 6W. 3. 1694, the couniel
moving for a ferjeant at arms fhall immediately in court deliver
to the regifter the coram iffion of rebellion, and if required,
name the clerk in court.
[Before a fequefira'ion can iffue, a non ejl inventus muff be
returned by the ferjeant at arms, (imlefs the party be a peer or
peerefsof the realm, a member of the houfe of commons, or
an abf. onding defendant proceeded againft according to the
flat. 5 G. 2. c. 25,) and this that the court may be fatisfjed by
the non eft inventus being returned by if 5 own officer, that the
contumacy of the defendant is wilful, and the confequence of
his own default (£).]
After any order for a ferjeant at arms fhall be granted, the
regifter fhall draw up the fame, and at the requeft of the
ferjeant at arms deliver it to the ferjeant or his deputy. And
the faid order is not to be difcharged, nor the contempt there-
upon without the ferjeant's fees be paid, and a certificate unckr
his hand teftifying the fame (c).
[The order for the ferjeant at arms being drawn up, pafled,
and entered, the clerk in court or folicitor gives it to that
officer who procures a warrant thereon, and at the return
thereof certifies in what manner he has acled under it. The
return which he makes upon the back of the warrant, mufl be
filed at the report office before a fequeflration can regularly
iffue. The cofls are not fettled as upon the former procefies,
but are to be taxed by the clerks in court for plaintiff and de-
fendant, and are according to the diftance the ferjeant has to
feek for the party ( Wy.Praa.321.
K 4 others^
I3 6 SERJEANT AT ARMS.
others, upon or after a commiffion of rebellion, and are called
by the name of their fuperior (?').]
[When a defendant is taken upon a prccefs of contempt,
and the fheriff returns cepi corpus, the party lying in prifon, or
the fheriff refufing to bring him in, the court will order a
meflenger (if defired) to take the prifoner into his cuftody, and
bring him in [k).~] .
[The court refufed to order a mefienger to Durham, which
Is two hundied miles or more, on the return of a cepi on an
attachment, becaufe of the great diftance, and expence ; but
faid it is ufed to be granted as far as York (/].]
[The return which the Serjeant at Arms makes upon the back
of the warrant, muft be filed at the report office, before a
fequeftration can regularly iflue (;/»).]
[The party taken upon this procefs muft clear his contempt,
and pay his coils before he can be releafed •, and if it be in
execution, he muft be detained in cuftody, and brought
into court, and upon motion committed to the Fleet, until he
perform the decree («).}
(i) Vide 3 Px. Aim. 23. (m) 3 Atk. 569.
\i) Wy. Praft. Reg. 392. (») Wy. Prad. Reg. 393.
(/) Wy. Pracl. Reg. 392.
( J37 )
CHAPTER THE TWENTY -SIXTH.
Sequefiration.
riF the ferjeant at arms cannot take the defendant, or if he
(_A efcapes and perfifts in his contempt, a fequeftration {hall
be awarded againft the defendant for the lands or goods of the
defendant, at the time of his contempt («).]
This commiffion of fequeftration is generally directed to
four or more commiflioners, empowering them to feize the
defendant's real and perfonal eftates into their hands, and to
receive and fequefter the rents and profits of his real eftate,
until the defendant fhall have anfwered the plaintiff's bill, or
performed fome other matter, which has been ordered by the
court, for not doing whereof he is in contempt as aforefaid.
[There appears to have been great ftruggles between the
courts of common law, and the courts of equity before this
procefs was eftablifhed. In Balgrave v. Watts, fuch commif-
fions were adjudged to be againft law, for that if a man be
fued in a court of confeience, and will not obey, his body is to
be imprifoned, and no commiflion ought to be awarded for
taking of his goods (£).]
[It is faid the firft inltance of a fequeftration after a decree,
was in fir Thomas Read's cafe, in lord Coventry's time (c) -,
another was iffued in Lakes v. Mears, nth Jac. {d)\ and in
the cafe of Hyde v. Pcttit, 1666, and affirmed in parlia-
ment (c) ; and by the court of exchequer in Gravus v. Fontaine
1687 ; and in a cafe of Whitham v. Bland in lord Shaftefbury's
time (/)]
Sequeitrations were firft introduced in the lord Bacon's
time, and then but fparingly ufed in procefs, and after a decree
to fequefter the thing in demand only.
[It is unneceffary to obferve, that a fequeftration has by
long ufage become one of the eftablifhed prccefTes, of the court
to enforce obedience to its orders and decrees.]
Upon an affidavit that the defendant was gone to Holland
to avoid the plaintiff's demand, and he having before been
(a) 2 Com. Dig. 228. (e) Bacon's Abrig. vol. 4. 425".
{b) Cro. Eliz. 65 [ (/) 2 Cha. Ca. 43. Barnard
(c) Hind. 128. 431.
( upon the return thereof a fequeftration (g).
[An order for a fequeftration being a judicial act muffc be
founded upon a proper affidavit (/').]
[The firit motion for. a fequeftration for non-payment of
money is «;/?(/').]
[A fequeftration againft a member of parliament for want of
anfwer is obtained only upon an order nift j is not abfoiute in
in the firft inftance (£).}
[The court granted" a motion that fe.ryice of an order for a
fequeftration nij~ upon the defendant's clerk in court might be
good fervice, upon an affidavit that the plaintiff had tried in
vain to ft*rve him perfonally (/).]
[This writ is always obtained upon motion ; if it be moved
for upon a return of uon eji inventus by the ferjeant at arms, the
counfel who moves has the warrant with the return in his hand.
Sometimes it is applied for upon a certificate from the warden
of the Fleet of the party being in his cuflody for non-perform-
ance of an order. If the party in contempt refift the ferjeant,
or when he is taken make his efcape, and (land out in contempt,
in fuch cafes upon affidavit of the facts, the court will upon
motion grant a fequeftration (?")-]
A fequeftration may be granted either before or after hearing,
And it may be granted againft an infant for non-appearance,
and alfo againft a peer («).
If- a party does not obey a decree, all procefs of contempt
may iffue againft him, and if not taken, the court will grant
a fequeftration. So if he be taken, and lie in prifon, ob-
ftinately refufing to perform the decree, the court will grant a
fequeftration [p).
This procefs is like an outlawry at common law, fo that if
a defendant who cannot be found to ferve procefs upon is pro-
ceeded againft to a fequeftration, and does not then appear,
you may proceed againft the reft (p).
■ [Papers had been delivered for the purpofe of being ex-
amined, and an order obtained for their restoration ; the order
wasferved, but no writ of execution of the order taken out, a
fequeftration mfi was granted (7).]
(g) I Vern. 344. (m) Hind. 136.
(b) Gib. Rep. 178. («) aCha. Ca. 163.
h) Wy. Prad. Reg. 391. (0) 2 Cha.Rep. 151.M0f.30i.
(}) nVcf. 43. ' (p) 1 Cha Ca. .39.
(/) 5 Vef. 113. . is) 1 Bro. C, C. 434.
In
SEQUESTRATION. 139
In Chancery not only the body of the defendant but alfo
his lands and goods are liable to a fequeftration. But no fe-
.queftration lies till the time for the return of the attachment is
cut on which the body was taken, for till then he may clear
the contempt ; or if for diibbedience to a decree he may
perform it. But it Ls reafonable fequeftration fhouhl lie in
cafe one taken into cuftody by procefs of Chancery, continues
in prifon without paying his debts (r).
A fequeftration is ufually had of both lands and goods where
the thing decreed is a perfonal duty (s).
Where a fuit is for lands, a fequeftration will be granted of
all the party's lands, tenements, and hereditaments, with an
injunction for the profits of the lands, tenements, Sec to
be delivered to the plaintiff by the flieriff, or the commif-
fioners for that purpofe named in the commiffion of fe-
queftration. And an injunction upon a fequeftration is the
utmoft procefs that this court can iiTue for contempt of non-
appearance, 8cc.
Sequeftrations run upon copyholds (/).
And it hath been fometimes granted for money of the parties
in other men's hands (it).
[In Simmons v. Kinnaird, one of the queftions argued was,
whether chofes in action were liable to fequeftration for want
of an anfwer. J^ord Chancellor Rofslyn did not decide the
point, but obferved that if this procefs could be extended to
all the debts due to a perfon only brought in to anfwer, it would
go a great deal farther than any procefs at law, that no pre-
cedent had been cited but one from Tothill (w) ]
The commiffioners are accountable to the court, and
are to a£t in the execution of their office according to the
directions of the court, and they are to make return from
time to time of what they have febed as the court directs,
and are to account for what come to their hands, and to bring
the money into court as the court fliall direct, to be put out at
intereft, or otherwife, as fliall be found neceffary. But this
money is not ufually paid to the plaintiff, but is to remain in
court till the defendant hath appeared or anfwered and cleared
his contempt ; and then whatever hath been feized by virtue of
the fequeftration, thall be accounted for, and paid him. How-
ever, the court hath the whole under their power, and mav
(r) Vide 2 P. W. 240. 3c 241. (u) Tcth. 173.
(s) 1 Cha. Ga. 92. ( w ) 4"Vef. 735.
(.') Vide x Barnard, Rep. 431.
j 4 o SEQUESTRATION.
a& therein agreeable to the equity of the cafe. And the plain-
tiff's couufel may move and obtain an order for tenants to
attorn and pay their rent to fequeftrators, to fell and difpofc of
the goods of the party, and keep the money in their hands, or
bring it into court, as the court fhall fee fit (.v).
[The court doubted whether there could be a fale of goods
taken under a fequeftration upon mefne procefs, farther than
to pay the expences (j).]
[Sequeftrators for want of an appearance after feizure of
the goods, ought to apply to the court for further directions.
Sequeftrators for want of an anfwer have no power to fell or
remove goods j and if they do, an attachment is againft
them (z).
[The court refufed to order eleven hogfheads of cyder to be
fold under a fequeftration upon mefne procefs («), But where
the fequeftration iffues for non-payment of money, though it
be upon mefne procefs, the goods fequeftered may be fold [b.f\
[A plaintiff cannot have the fame benefit in carrying on tiie
feveral proceffes upon a contempt of the defendants before the
hearing, as upon an abfolute decree \ for in this latter cafe,
the plaintiff after proceffes have been executed, and goods and
eftates fequeftered under them, may have both applied to
fatisfy his demand, which he cannot have upon proceffes for
contempt only ; and therefore a very material and effential
difference between the two iV).]
It was moved that the irregularity of a fequeftration might
be referred to the deputy, which was taken out againft the
defendant for not appearing, by reafon of its being taken out
fooner than by the courfe of the court it could, and yet the
fequeftrator had taken the goods off the premifes, and
hreatened to fell them : the Chief Baron faid, that as to the
(x) Vide Rowley v. Ridley, that a fequeftration for mefne pro-
2 Dick 622. where it is ftated, cefs could not be executed; but
that although the lords commif- was merely a ground to apply to
fioners ordered tenants to attorn the court to have the bill taken
to fequeftrators on mefne procefs, pro confeffo. Sed vide the cafe of
lord Thurlow would not after- Rowley v. Ridley, as ftated in
wards enforce the order. In the 4 Vef. 738. by the counfel.
above cafe is ftated a written (y) I Vef. J. 86.
opinion of Mr. Dickens, the re- {%) Bunb. 272.
gifter delivered by him to one of the (a) Amb. 421. 3 BrQ.C.C 72,
lords commiflioners upon the mo- \b) J Bro. C.C. 36a
tion being made, that the tenants \c) 2 Atk. 24.
might attorn. Mr.Bicker.s think*,,
carrying
>
SEQUESTRATION. i 41
carrying the goods off the premifes, it was clear the fequeftra-
tors could do that, becaufe a fequeftration upon mefne procefs
anfwers to a dillringas at law. But the court agreed that the
fequeftrators could not fell the gotWis (d).
[Upon a bill for an account taken fro confejfo again ft fur-
viving executor, and devifes in truft, and leafehold eltates taken
under a fequeftraftion for want of an anfwer, the Chan-
cello:" refufed to make an order upon the fequeftrators to
fell, as the fequeftration does not transfer the term to the
fequeftrators ; but directed them to apply the profits ; and
faid he fhould not have much difficulty in felling perifhable
commodities ().]
Sequeitrators on a mefne procefs are accountable for all the
profits, and can retain only fo far as to fatisfy for the
contempts (r).
(«■) I Vein. 1 1 8. (n) i Vern. 5S.
(Z-) Wy. Pratt. Reg. 386. (0) 1 Vef. J. 24.
(i) 2 Cha. Ca. 82. (/>) MS. of lord Nottingham
(/) Ca. Temp. Talb. 222. 225. Wy. Pract. Reg. 391.
(?w) 2 Cha. Ca. 46. (r) 1 Vern. 248.
Care
SEQUESTRATION. M3
Care ought to be taken that the commiffioners in fequeftra-
fions be fuch as are able to anfwer for what ihall come to
their hands, in cafe they fhould be called onto an account.
[If fequefhators having power to fell timber difpofe of 70C0L,
worth, and only bring aoeol. to account, they, as officers and
agents of the court, are refponfible, and not the plaintiff (/).]
[If plaintiff calls for account of goods fequeflered, the
feque'ftratof may let off his fees whatever length of time has
elapfed without demand, provided he has made a return from
time to time of what he feized (r).]
If a heeeffary. defendant is piofecHted regularly to fequeftra-
tion, plaintiff may go on againft the other defendants ; but
bul icrvmg a Juipeeaa at a place where he had only once
lodged, and that two years before the fervice, is not good («).
[One of the defendants being in contempt, and ftandingout
to a-ftqueftration, the caufe was heard againft the other
defendants ; yet upon his coming in and artfwering, the caufe
was heard againft him (iv).~]
[Where a defendant is out of the reach of the court, and
cannot be made to appear, it amounts to the fame thing, as if
the plaintiff had taken out procefs for want of an appearance,
and carried it through the whole line of procefs to a iequeftra-
tion Q-).]
A fequeftration is the fir ft procefs againft a peer, or mem-
ber of the Houfe of Commons ; but if there be an order for a
fequeftration nifi againft a peer for want of an anfwer, and the
peer puts in an infufficient one, yet the order for a fequeftratioa
ihall not be made abfolute ; but a new order for a fequeftra-
tion v.'ifi fhali be made (s).
A fequeftration has been granted againft an infant peer for
not appearing, and the fequeftrators receive the rent («).]
[If a peer of the realm appears, and does not anfwer, for-
merly an attachment lay, but now by order of parliament no
procefs lies but a fequeftration (4).]
[If there be a fequeftration nift for want of an anfwer
againft a member of parliament, and he puts in an anfwer
before the order is made abfolute, and exceptions are taken to
this anfwer ; the court will enlarge the time for fhewing caufe
till it {hall appear whether the anfwer is fuiheient or not (c).~\
(s) iVern. 161. (y) 2 Atk. 510.
(0 3 Atk. 594. ( a ) 2P.W.3S3;
(u) Pre Cha. 99. 1 Cha. Ca 139. \a) 2 Cha. Ca. 163.
(?).]
[Defendant being in contempt for d (obeying a decree, and
being a prifoner in Bri/Ioi\ was brought thence by habeas c "pus
and turned over to the Fleet, and refufed to ob . y th ecree.
The court ordered a fequeftration againfl his real and pergonal
gftate (s granted
againfl the Warden of the Fi;et for not an iveriJ g. he boing
fuppofed to be always perfonally prefent in cc arc { p ]
[lithe goods fequettered are not fufficient to utisfy his
demands, the plaintiff may move to revive the ord^r for Ser-
jeant at Arms [q) ]
[On the return of an attachment for non-performance of an
order againfl one in the Fleet, the next procefs is a fequeftra-
tion (r).]
[Where a defendant for want of putting in his anfwer has
flood out the whole line of piocefs to a fequeftration, and the
V \
(h) 1 Cha. Rep. 152. (n) Wy. Prft. Reg. 388.
(»') 2P.W.622* (0) 2 (. "a. Rep. 151.
(k) I Vef. i%o. et vide I Vem. ( p) M f. 238.
118. and Cafes Temp. Talp. 222. ( /) Mof. 246.
(/) 3 Atk. 594 . \;.) Mof. 301.
(m) Bunb. 31.
Vol, I. \ fcill,
i 4 6 SEQUESTRATION.
bill taken pro confejfo on a decree againft him ad computandunt,
the court will no I difcharge the fequeftration on payment of
cods of the contempt onl\ , but will keep it on foot as a
fecurity to the plaintiff for the defendant's appearing before
the Maftcr to take the account (s) ]
[The court will not make an order on a plaintiff to pay a
fequeftrator his fees, who has made no return of the goods
fequeftered ; but has delivered them over many years lince,
and made no demand upon the plaintiff fince (/).]
[The cofts attending the fuing out and executing this writ,
are to be taxed by the Matter ; fometimes the fequeftrators are
allowed poundage or 6 s. 8 d. a day and other contingent
expences, or a grofs fum (w).]
[An exception was taken by a fequeftrator to a Matter's
report for not allowing him 6 s. 8d. a day. Per Cur. A fe-
queftrator is not entitled to an abfolute ftated fee of 6s.
8d. a day ; the Matter has allowed a grofs fum which is fuffi-
cient (*).]
[If the defendant hath once appeared, and afterwards being
In contempt, a nihil is returned upon this writ before hearing,
the court on petition or motion, and producing the writ fo
retu "" : " 1 . will order the caufe to be fet down to be heard j and
at the uay for hearing, the bill being read, the court in regard of
the many and great contempts of the defendant, and of the
ftrong prefumption the bill is true, will take it pro conje(fo. 9
and decree for the complainant according to the prayer of the
bill, fo that he pray nothing apparently contrary to equity (y).
[It feems that the appointment of a receiver will difcharge
the fequeftration (z).]
[The order for a fequeftration being drawn up, paffed, and
entered, is to be left with the plaintiff 's clerk in court, together
with the names of the perfons whom the plaintiff chufes to have
inferted as commiffioners, and the clerk in court will make
out the writ ; the form whereof is as follows (a) .]
Sequeft ration.
George the third by the grane of God, of Great Britain,
France, and Ireland king., defender of the faith, and fo forth*
To
(s) ?. A*fc, 468c ' I rVern. 247.
(t) 3 -Atk. ^94. {*) ,3Vef. 24.
(*«») - ind. ±4.0. . .(a) Hind. 136.
' ) ' ■-■
Whereas
SEQUESTRATION. 147
Whereas A. B. complainant, exhibited his bill of com-
plaint in our court of Chancery againft C D. defendant.
And whereas the faid C. D. being duly fcrved with a writ
iffuing cut of our faM court, commanding him under the
penalty therein mentioned to appear to and anfwer the faid bill,
hath refufed fo to do ; and thereupon all procefs of contempt
hath iffued againft him unto a Serjeant at Arms.
And whereas the faid CD. hath of late abfeonued and fo
concealed himfelf, that the faid Serjeant at Arms hath not
been able to find him, as by the certificate of the faid Serjeant
at Arms appears : Know ye therefore, that vvc, in confidence
of your prudence and fidelity have given, and by thefe prefects
do give to you, any three or two of you, full power and autho-
rity to enter upon all the meffuages, lands, tenements, and
real eftate whatfoever of the faid C. D., and to take, collect,
receive, and fequefter into vour hands, not only all the rents
and profits of the meffuages, lands, tenements, and real eftate,
but alfo all his goods, chattels, and perfonal eitate whatfoever.
And therefore we command you, any three or two of you, that
you do, at certain proper and convenient days and hours, go to
and enter upon all the meffuages, lands, tenements, and real
eftate of the faid C. D., and that you do collect, take, and get
into your hands not only the rents and profits of all his faid
real eftates, but alio all his goods, chattels, and perfonal
eitate, and detain and keep the fame under fequeftration in
your hands, until the faid C.D. {hall fully anfwer the com-
plainant's bill, clear his contempt, and our faid court make
other order to the contrary. Witnefs ourfelf at Wejlmlnjisr
the day of in the year of our reign.
[If the defendant be a peer of the realm, a bifhop, or a
member of the Houfe of Commons, the form is thm :]
And wheteas the faid A. B. being duly ferved with a copy of
the plaintiff's bill, and a writ cifubpoena iffuing out of our faid
court, commanding him under the penalty therein mentioned
to appear to, and anfwer the faid bill, hath (appeared accord-
ingly. And whereas the faid A. B. hath not put in any anfwer
to the faid bill) (b) it was on the day of laft,
ordered that a fequeftration mould iffue, directed to certain
commiffioners therein named, to fequefter the faid defendant's
perfonal eftate, and the rents and profits of his real eftate,
until the faid A. B. ihould (fully anfwer) (c) the plaintiff's
(/) If the procefs be for want (c) Suppofing the procefs for
of appernce, the words in arpe:*rance, the words in brackets
brackets are to be omitted, and are to be ommitted, ajid " ap-
inftead thereof, " not appeared " peared to" inferted.
inferted.
L 3 Ml,
i 4 8 SEQUESTRATION.
bill, and our faid court make other order to the contrary,
unlefs the defendant, having perfonal notice thereof, mould,
within eight days after fuch fervice, fhew unto our faid court
good caufe to the contrary. And whereas on the day of
the faid order was made abfolutc : Know ye therefore,
&c. as above, &c. (*/).]
To this fubferibe the Matter of the Rolls, and the Six Clerks'
furnames, as before. And indorfe " A commiffion of fequef-
tration againlt C. D. defendant, at the fuit of A. B. com-
plainant."
[A fequeflration was made out following the title of the order
for the Serjeant at Arms, and the com mifuon of rebellion,
the titles of which were miftaken ; the miftake was ordered
to be rectified ( )
CHAPTER THE TWENTY -SEVENTH.
Dijiringas.
TT/HERE a corporation, as the mayor and aldermen of
* v London, or any other corporation are made defendants to
a bill, and they refufe to appear to, or anfwer a bill, or to
perform the decree of the court, inch corporations cannot be
attached ; but inftead of an attachment you make (of courfe)
a dijlringas to the fheriffs of the city, or to the fheriff of the
county, where fuch corporations are refident, the form where-
of is as follows, viz.
Dijlringas,
George the third by the grace of God, of Great Britain,
France, and Ireland king, defender of the faith, and fo forth.
To the fheriff of the county of greeting. We command
you to make a diitrefs upon the lands and tenements, goods
and chattels of within your bailiwick, fo as neither they
the faid nor any other perfon or perfons for them
may lay his or their hands thereon until our court of Chancery
fhall make other order to the contrary ; and in the mean time
you are to anfwer to us for the faid goods and chattels, rents
and profits of the faid lands, fo that the faid may be
compelled to appear before us in our faid court of Chancery
wherefoever it fhall then be, there to anfwer to us as well
touching a contempt which they, as it is alledged, have com*
mitted againft us, as alfo fuch other matters as fhall be then
and there laid to their charge ; and farther to perform and
abide fuch order as our faid court fhall make in this behalf ;
and hereof fail not, and bring this writ with you. Witnefs
ourfelf at Wejlminjler the day of in the
year of our reign.
Indorfe, By the court, at the fuit of A.B.for want of an appear*
fince or anfwtr.
This writ mufl alfo be entered with the regifter in the
fame manner as you do an attachment.
L a TO*
i 5 o DISTRINGAS.
This is a clofe writ and made up as an attachment, and
when fea'ed you muft deliver it to the under meriff, who is
bound to make a return thereof after it is returnable ; and
there muft be fifteen days between the tefle and the return.
And when the CherifFhas made his return, you carry it to your
clerk in court, who thereupon makes out an alias dijlrin\ras t
which is the fame with the di/lrhigas ; only after the words,
" we command you " infer! " as we have before commanded
you to make a diftrefs upon the kinds, tenements, &x." And
then deliver this alias dijlringas to the under fheriff, Which muft
alfo be fifteen days between the tefle and return And it being
returned by the meriff, you carry it to the clerk in court, who
thereupon makes out z plur:es u'i/lr:;.'g^s, which is the lame with
the di/lringas, only after fehe words " we command you" infert
"as we have twice before commanded you to mak a diftrefs
upon the lands, tenements," See. And this being aifo re-
turned by the Iheriff, which mult alfo be fifteen days between
the tefle and return, you get couulel thereupon to move for a
fequeftration upon a pluries diflringas returned againft the faid
corporation to fequefter all the lands, tenements, goods, and
chattels of the faid corporation, until they appear to or anfwer
the plaintiff's bill, or perform the decree, and the court make
other order to the contrary 5 which fequeftratian cannot be
difcharged till the corporation has performed what they are m-
oined to do, and paid the colts of the feyeral dijiringafes, and
!he fequeftration, and the coram iilioners their fees for fequef-
tring j and then they move to difcharge the fequeftration,,
which will be discharged of courfe".
[Upon the firft writ, the flier iff generally levies 40 s. ifiues ;
upon the alias dijlringas 4I ; on the pluries dijlringas he levies the
whole property : and on the return of thfi pluries, the com twill,
upon motion, grant a fequeftration («).]
[In the cafe between Doctor Salmon and the Hamburgh cprm?
•pany, the members in their private perfoiis were made liable,
the company having no goods (£).]
[The plaintiff had a decree againft the defendants for a great
fum of money, and ferved them with a writ of execution in
the ufual form j and they not performing the decree, a dif.
tringas (the next procefs againft a corporation) was awarded,
and 40 s. iiTues returned, and after on a motion a fequeftration
was ordered nifl, &c, And now they prayed to enter their
appearance with the regifter upon the diflringas y and to dil-
c harge the fequeftration^ but the application was refufed,
(a) Hind. i.jo & 141, (&) 2 Vern. 396.
Becaufc
I
DISTRINGAS. 151
Becaufe the appearance being only in favour of liberty, can
be of no fervice to a corporation which cannot be commit-
ted (c) J
[It was objected that the fervice was upon the governor of
the company only, who has no power over the company's cafh,
and could not paythe money decreed ; and it was faid the fervice
ought to have been on the committee ; but this was over-
ruled, for then if the committee would not meet, or not
admit the party in tofcrve them, there conld be no fervice ;
fo the order was madeabfoiute ().
Note. Taking a bill pro confejfo has not been of long (landing,
it having been formerly the practice to make proof of the bill,
if the defendant (toed in contempt to the laft procefs ; but
lately the practice has been, that if the defendant Hands out
all ptocefs of contempt to a fequeftration, the caufe is fet down
to be heard, and the record of the bdl produced, and taken
pro conftjfo •, but if time be given for a defendant to anfwer,
though after the fequeftration, and though the anfwer be
reported infufEcient, yet the bill {hall not be taken pro
confejfo (c)
A caufe comes to be heard on a fequeftration •, the defend-
ants obtain a week's time to anfwer, and the czvSe is
adjourned ; he puts in an anfwer ; the plaintiff refers it for
infuffieiency ; the Mailer reports it infufEcient, and the plain-
tiff fervc e the defendant with ^fubpoena to make a better anfwer ;
the caufe comes on again, and the Mafter of the Rolls decrees
the bill to be taken fro conftjfo ; but this decree was reverfed by
the Lord Chancellor, becaufe he could not prefume the bili to
b true for want of an anfwer, when by the records of
the court there appeared to be an anfwer, (and admitted by
(a) Eucas' Rep. 43 1. (c) 2 P.W. 556. Mof. 3S6.
(i) 2 Cha. Rep. 2 S3, vide
2 Faem. 127.
the
BILLS PRO CONFESSO. i 55
the plaintiff by his taking exceptions) and whenfeveral material
parrs of the bill were denied by the anfwer {d\
But the rule of the court feems to be otherwife.
Plaintiff brought her bill againft defendant for an account of
profits, &x. ; and after defendant had fully anfwered, plaintiff
amended her bill three times j to which defendant put in three
feveral pleas and demurrers, which had been all over-ruled,
and the defendant Hood in contempt to a fequeftration for
not anfwering the amended bill ; plaintiff now moved for
liberty to let down the caufe on the fequeftration, in order that
the bill might be taken pro confeffj, CirV., when it was objected,
that there being an anfwer to part (viz. the original bill) the
bill could not be taken pro conf.JJj, becaufe part was fully an-
fwere I and denied, &c And the cafe of Hawkins v. Crook (e)
was cited. But on p^rt of the plaintiff it was urged, that it
defendant by anfwering part, and refuting to anfwer the moft
material point of all, fhould prevent the bills being taken
pro conffjjoy that would put the plaintiff in much worfe con-
ditim, than not anfwering at all, and would encourage de-
fendant by vhis method to elude the juftice of the court, 8cc.
And as to Hawkins v. Crook, defendant there was willing and
defirous to put in a full anfwer, and that was at length the
liberty given him by the court. Lord Chancellor faid, that
this is an untrodden path, and as there are no precedents to
direct, we mult go upon the reafm of the thing. At law,
after the party has appeared, and is in court, if he makes de-
fault, &c. judgment is given for the whole demand, and if
in trefpafs, &c. defendant pleads only in part, and fays nothing
to the refidue, plaintiff may take his judgment immediately for
what is not anfwered ; and courts of equity form their pro-
cefs upon the fame plan, when the party is in court, Sec. And
it is a jurifdicriori, which feems abiblutely neceffary, and
exercifed by all courts, that when they have the parties
$nce before them, they fhould ha\e it in their power to deter-
mine upon the right, &c, and therefore feeined ftrongiy to in-
cline, that the bdl fhould be taken pro cofifaffd quoad the parti-
culars not anfwered But the defendant ottering to anfwer by
the next term, except as to matter of account, no order was
made upon the main queftion {/)•
[Lord Hardwicke in Davis v. Davis (g) appears to have been
©f opinion, that the court would take a bill pro cofifejjb when an
anlwer had been put, in which is reported infufficient.]
[A bill amended after anfwer, may be taken pro confejffb
(d) Mot. ^86. {/) 4 Vin. Abr. 446.
(.*) 2 P.W. 556. Mot 386. (g) 2 Atk. 24.
4 generally,
i 54 BILLS PRO CONFESSO.
generally, not as to the amendment only, the record being
entire (A).]
[An information was decreed to be taken pro confejfo upon
two infufficient anfwers ; the Mailer of the Rolls obferving,
that an infufficient anfwer was as no anfwer, and for a very
good reafon \ for the pi a i ".tiff., if he wants to bring on his
caufe, muft either reply to an infufficient anfwer, and go to
commifno- to prove his cafe, or fet it down upon the bill and
an infufficient anfwer ; which is a fituation no plaintiff can be
put into '*').]
If the defendant appears to the fubptzna, and prays a further
day to anfwer and has it, and afterwards ftands out at all the
proceffes of contempt, the bill will be taken pro confejfo (k) .
The defendant being a prifoner in the King's Bench, re-
fufed to anfwer ; whereupon it was prayed that the bill might
be taken pro confejfo if he did not anfwer by a certain day ;
but the court was of opinion, that unlefs the defendant was in
the prifon of the court, the bill could not be taken pro con-
fejfo ; whereupon he was removed by habeas corpus into the
Fleet, and having a day given him to anfwer, and he ftill re-
fiufing, the bill was taken pro confejfo \ and he was ordered to
be kept clofe prifoner (/).
[The defendant being a prifoner in York gaol for want of
appearance, and the demand fo trifling, it would not bear- the
expence of removing him by habeas corpus ; it was moved that
for want of appearance the bill might be taken pro confejfo ; but
the Lord Chancellor refufed the motion, faying that the plain-
tiff muft proceed in the ufual method pointed out by 5 Geo. 2.
3 Atk. 690.]
[Where there is only "one defendant, after all procefs of
contempt for want of an anfwer, the bill may be ordered to be
taken pro confejfo, upon motion (m).~]
"Where the defendant is in cuftody upon procefs of contempt
(after appearance) and being brought into court, and hearing
the bill read to him, and he is required to anfwer, but obftinately
refufer fo to do ; in this cafe the court will order the bill to be
taken pro confejfo (/;).
And if the defendant demur and the demurrer be over-ruled,
and the defendant be ordered to anfwer, if he refufes, the bill
may be taken pro confejfo.
A quaker being in contempt for not anfwering upon oath,
and he being by order brought to the bar, Lord Chancellor
(h) 4 Vef. 619. and the cafes (/) Cha, Rep. 50.
there mentioned. (w) $ Vei". 372.
(i) 3 Vef. 209. (n) Ibid. 281.
(i) Cha.Kep.65. '"
a monifhed
BILLS PRO CONFESSO. 155
admonifhed him of the peril of perfevering ; but he ftill refufing
to anfwer on oath, the bill was taken pro confejfo (0).
But it is prefumed if a quaker will now put in his anfwer
urjori affirmation, it is fulicient ; but if he refufes, then the
bill may be taken pr, cwfeffb, as in other cafes where upon oath.
[A decree upon a 'ill taken pr» ccnfeffb is to be pronounced
by the court •, the plaintiff not being entitled to take fuch decree
as he could abide by, as in the cafe of default by the defendant
at the hearing (/>) ]
[To prevent a uecree pro confeff) for want of an anfwer,
th" defendant lhould have not only an anfwer upon the
file, but ?lio a receipt for the cofts ; in this cafe, motion
fhould firft be made, that the anfwer fhould be taken off the
file for irregularity (q) ]
[Upon a mo ion to difcharge an order to take the hill pro con-
fejjb on payment of cofts, and an offer to put in an anfwer ; the
court required to fee what anfwer they propofed to put in (V).]
After an order to take a bill pro cotifeffo, merely putting in an
anfwer is not fufficient to fet afide the order, the defendant
mull apply upon fome reafonable grounds. 2 Bro. C.C. 279.
[It appears from what has been before ftated, that if the
defendant hath not appeared, the court would not decree the
bill to be taken pro cotifejjb ; the defendant therefore, by ab-
fconning to void the fubpeena, might have eluded juftice, until
theftatut^ of 5 Geo. 2. chapter 25 ; which enacts, that de-
fendant not entering his appearance within the ufual times after
fubpeena, and on an affidavit to the fatisfadlion of the court, that
fuch defendant abfeonds to avoid the procefs of the court, the
court may make an order fixing a day for his appearance ;
a copy of which is to be inferted in the Gazette, andpublifhed
in the parifh church of the defendant, and pofted in the publick
places in the ftatute named ; and if the defendant does
not appear within the time limited by the order, that the
plaintiff's bill be taken pro confcjjb ; and the court may order
the plaintiff to be paid his demands out of the eftate fe-
queflered according to the decree ; the plaintiff giving fecurity
to abide fuch order touching the reftitution of the eftate as the
court fhall make upon the defendant's appearance; but in cafe
fuch plaintiff fhall refufe to give fecurity, then to remain under
the directions of the court, until the defendant appear to defend
fuch fuit. And if defendant be brought into court by habeas corpus 3
and fhall retufe to enter his appearance, the court may enter it
for him ; and fuch proceedings may be thereupon had, as if
the party had actually appeared. Perfons out of the realm or
(0) 2 Cha. Ca. 237. Vide 1. ( 7 ) n Vef. 202.
? reem - 2 7- (r) 11 Vef. 77.
ty) $ Vef, 192,
abfcondlng
i s 6 BILLS PRO CONFESSO.
abfcondingin manner afore faid at the time fuch decree is pro*
nounced, if they return or become publickly vifible within
ieven years after the decree, fhall be ferved with a copy of the
decree; and in cafe of death, their heirs, &:c. If perfons fo
ferved with a copy of fuch decree, fhall not within fix months
after fuch fervice petition a re-hearing of the caufe, the decree
to be abfolutely confirmed, and barali claiming by them. But
defendant within fix months after fuch fervice, or not being
ferved within feven years after fuch decree, on petitioning for
re-hearing and giving fecurity for colts, is to be admitteo to
anfwer, and the caufe to be heard again. The a£t not to
affect perfons beyond feas, unlefs it fhall appear by the affi-
davit that fuch perfons had been in England within two
years next before thejithpeena iffued.]
The opinion of Lord Chancellor upon the above ftatute of
5 Geo. 2. c. 25. f. 1. was, that it was not fufficient to make
an affidavit, that the party making it was informed and believed
that the defendants withdrew themfelves into Ireland in order
to avoid being ferved with a procefs of this court ; but it muft
likewife be fwom by whom the party depofing received fuch
information (s).
[The Mailer of the Rolls (Lord Alvanley) refufed to make
an order under the flat. 5 Geo. 2. c.25. for the purpofe of having
the bill taken pro confejjb, without an affidavit according to the
8th fecVion, that the defendant had been in England within two
years before the Jubpoena iffued, the affidavit only Hating that
the defendant was abroad, and fuggefting that he had abfeonded
to avoid being ferved with procefs (/).]
[Though for fome time after making the aft of 5 Geo. 2., there
was a doubt whether it extended to bills of revivor, yet it is
fettled now that it does (w).]
(s) Barnard Cha, Rep. 401 & (0 5 Vcf. 1. etvide^VcL 113,
40J. S.P. vide contra 2 Vef. J. 188.
(it') 3 Atk. 690.
( '57 )
CHAPTER THE TWENTY-NINTH.
Contempts in general.
HAVING now confidered the feveral procefTes of contempt
diftin£Uy, I iliall make fome obfervations upon con-
tempts in general.
[Whether a libel be public or private, the only method to
proceed is at law, this court having no jurifdi&ion unlefs it is
a contempt {a) ~\
[There are three forts of contempts. One kind of contempt
is, fcandalizing the court itfelf. There may be likewifc a con-
tempt of this court, in abufmg the parties who are con-
cerned in caufes here. There may be alfo a contempt of
this court in prejudicing mankind againit. perfons, before
the caufe is heard (£).]
[In a bill touching the eftate of Sacheverel deceafed,
who had iflue a daughter by his firft wife, the queftron was,
Whether the defendant was married to Mr. Sacheverel. An
advertifement in the public prints, that whoever {hall difcover,
and make legal proof of the marriage in queflion, mould have
i©o 1., adjt*lged a contempt ; and the party procuring it com-
mitted (C).~)
[Suing the bail below pending a writ of error in parliament,
is a contempt and a breach of privilege (7/).]
[A commiffion iiTued to inquire into the lunacy of the Lord
Wenman •, and his wife, though an Irifh peerefs, was commit-
ted for not producing him to the commiflioners ().
[As to contempts againft an order, the party muft commonly'
be ferved with the order under feal, ere he can be brought
into contempt for not obeying ' f [q)-\
[But if the party was actually prefent in court, when the
order was pronounced, or if he be a fervant or minifter of the
court upon whom the order i- made, as a folicitor, &c. it may
be otherwife. And if the fact be : gainit a Handing order of
the court, there needs no notice of it (/•).]
[The practice of perfonal fervice as a foundation for pro-
cefs of contempt, is difpenfed v/ith, where the party muft necef-
farily have had notice ; as upon a fhort order for execution of
a decree ; the defendant having been prefent in court when
the decree was made (s) ]
[In like manner perfonal fervice is difpenfed with, where the
party has declared that he would not execute an order, which is
fought to be enforced; and he abfeonds to avoid it {t).\
All perfons guilty of any breach of the orders of the court,
may be committed for the contempt, which is to be examined
into upon oath or interrogatories (which are commonly upon
motion referred to a Mafler to fettle, and to examine him upon •,
otherwife he is to be examined by one of the examiners of the
court) (w) and if the contempt be found, the parties muft
clear it, and pay cofts to the profecutor, 8cc.
And where a contempt is profecuted againft any man, he
{hall not be put to move the court, as was formerly ufed, either
for interrogatories to be exhibited, or for reference of his
examinations, or for his difcharge when examined; but
when he fhall be brought in by procefs, or mail appear
gratis to be examined upon a contempt, he fhall only give
notice of fuch his appearance to the attorney or clerk on
the other fide.
And if within eight days after fuch appearance, and notice
given, interrogatories fhall not be exhibited whereon to examine
the party, or if no reference be procured of his examination ;
nor commiffion taken out on the other fide, nor witneffies exa-
mined in court to prove the contempt within one month, then
the party thus profecuted ought to get an order to be dif-
charged, and for a Mailer to tax the cofts.
(p) Ord.Chan. Nov. 17. 7 Car. (s) 12 Vef. 20z.
1631. (/) 12 Vef. 203.
\q) Wy. Pratt. Reg. 135. the court ordered interro-
gatories to be filed in four days or the party to be dis-
charged (a-).]
When a party profecuted on a contempt has denied it, or it
does not clearly appear by his examinations, the profecutor
may take out a commiffion of courfe to prove the contempt.
And in fuch cafe, the party profecuted may name one commif-
fioner to be prefent at the execution of the commiffion, and
may crofs examine the witneffes produced againft him to prove
the contempt •, but is not to examine any witneffes on his part,
unlefs he mall fatisfy the court touching fome matter
of fact ncceflary to be proved for clearing the truth ; and
then he is to examine them only to fuch particular points
let down ; and the other may alfo examine them, and the
interrogatories on both fides are to be included in the com-
miffion (v).]
[Where a contempt is profecuted againft one, who, by
reafon of age, ficknefs, or other caufe, is not able to travel,
or againft many perfons, who are fervants or workmen that
live far off, the court will, on motion and affidavit thereof, grant
a commiffion to examine them in the country, which fhall be
fued out, and executed at the charge of the perfon defiring
it, directed to fuch indifferent perfons, as the profecutors
of the commimon fhall name (as in other cafes), and one com-
miffioner only at the nomination of the party profecuted as
aforefaid; which commiffion muft be executed in fuck
convenient time and place as the fix clerks (not towards
the caufe) upon hearing the clerks on both fides, fhall fet
down (3).]
[Upon any examination of a contempt referred to a
Mafter to certify, whether the contempt be confeffed or
proved, or not, the Mafter in his certificate or report fhall
likewife affefs and certify the cofts to either party, as
there fhall be caufe without order or motion for that pur-
pofe f a).~]
Where a clerk in court or folicitor is committed for
mal-pra&ice, or mifbehavicur of his known duty after he
has lain in cuftody fome time, the court will difcharge him
upon a petition figned by him, wherein he muft beg pardon,,
be forry for his contempt and pay the cofts.
(*) Wy. Praft. Reg. 136. («0 On!. Chan. 115.
(j) Ord. Chan. iu. (a) Ord. Chan. 1 15.
Vol. I. M &
162 CONTEMPTS IN GENERAL.
If after appearance and interrogatories exhibited as aforc-
faid, the party appearing fhall depart before he is examined,
without leave of the court, upon motion and certificate of the
fame, &c., he fhall (land committed without farther day to he
given him, and is not be difcharged from his contempt, until
lie has been examined and is cleared thereof.
And if he fhall upon his examinations or by proofs, be found
in contempt, and thereupon committed, he Ihall clear fuch his
contempts, and pay the profecutor his. colls before he be dif-
charged of hisimprifonment.
And though he be cleared of his faid contempt, yet he fhalJ
have no cofts in refpe£l of his diiobedience in not fubmkting to-
be examined without the profecutor's trouble and charge in
moving the court.
And if any perfon (hall be taken upon procefs any
way irregularly iffued, the party fo taken firil appearing
unto, and fatisfying the procefs, which had irregularly iflueci
ngainil him, fhall be difcharged of his contempt, and have his
full coils, to be taxed of courfe either by the Mafter or by the
Six Clerk, not towards the caufe for fuch irregular profecution
from the time the error firft grew. •
All attachments on procefs {hall be difcharged upon the de-
fendant's payment or tender to the plaintiff 's clerk, and re-
fufal, of the ordinary colls of the court j> and filing his plea,
anfwer, or demurrer, as the cafe regularly requires, without
any motion in court or petition on that behalf.
[Defendant in cullody for non-payment of cofls, after
anfwer came in, cannot be detained until further anfwer*
though exceptions have been allowed ; for he had a right
to be difcharged upon putting in his anfwer, and being
once fuperfedeable, always remain fo, except on a new
caufe (£).]
[Defendant in contempt was difcharged, or. putting in his an-
fwer, and depofiting the utmoft fum to which coils would
amount, fubjeel to taxation (c).}
[Defendant being in contempt, and in the Fleet prifon for
not paying money under a decree, and obilinately refufing ta
pay, it was prayed that he might be committed a cloie prifoner,
but the motion was refufed () 4 Bro. CC. 223. (J) 4 Bro. C.C. 89-.
(c) 4. Bro* C.C 206. (e) yVef. 173.
[Upon
CONTEMPTS IN GENERAL. 163
[Upon a decree for payment of money, after a writ of
execution and an attachment returned, the court refufed to
Jet the defendant be examined, unlefs he gave fecurity to per-
form the decree (/)•]
[If defendant be in contempt for not anfwering, and on
motion he obtain time to anfcgysr, if it be notexprefsly ordered,
that all contempts in the mean time be ftayed, the plaintiff may
go on, and profecute the defendant for not anfwering (g),]
If) 2 Vern, 91. (g) 1 Vern. 104.
:■;. s
-I i 164 )
CHAPTER THE THIRTIETH.
The Time and Manner of filing an Anfiver.
THE defendant having appeared and taken an office copy of.
the bill, is to lay the fame or a copy thereof before counfel
with inuruttions for the anfwer, who will advife him either
to anfwer, plead, ©r demur thereto, as the cafe requires : or
the defendant's attorney may draw the anfwer, and then lay it
before counfel to perufe and Gsn*
If the defendant's appearance be time enough within the
term, rule may be given to anfwer within eight days ; but if
no rule be given, he is at liberty to anfwer at any time within
the t t rm.
If the defendant live above twenty miles from London, he
has a dedimus of courfe to put in his anfwer the term following,
which he is entitled to pray, upon his appearing.
[This commiirion formerly was granted upon fuppofal of
the defendant's inability to travel, by reafon of ficknefs, age,
or infirmity : and therefore antiently was not granted, but upon
oath of fuch inability or ibme other good caufe. But fmce
bufinefs increafed, it became a thing of courfe. Wy. Pract.
Reg. 112.]
[Where a defendant is ill, and unable to come to London,
though he lives within twenty miles of London, he may have
a dedimus to take his anfwer. In Chancery, in Attorney General
v. Bennett 1701, this was ordered upon the motion of Mr.
Steele, on allegation of the fact, and notice to the plaintiff, who
did not oppofe it, and the defendant living at Walthamftow 5,
and in the Exchequer in Jordan v. Lefevre, 23d May 1788, on
the motion of Mr. Abbot, the fame order was made, the de-
fendant living at Kingfton upon Thames ; but this was upon
affidavit of the apothecary, and without notice. Anderfon v.
Camden in the Exchequer, 25th January 1794, the fame
order.] .
[A defendant in all cafes by the courfe of the court, has
eight days excluiive of the day of appearance to anfwer the
plaintiff s bill ; if he cannot in that time complete his anfwer,
the court upon application will of courfe grant him three orders
for time (except to anfwer an amended bill.) The time limited
by thefe three orders depends upon the rcfidence of the de-
fendant y
OF FILING AN ANSWER. 165
fendant ; if herefides within ten miles (which is a town caufe)
or within twenty miles of London, the court makes an order
upon the firft application for one month ; upon the fecond ap-
plication, for three weeks 5 ind upon the third application, for
a fortnight («).]
[If the defendant ufually refides above twenty miles from
London (which is a country caufe) he is entitled to three
orders for time to put in his anfwer, except it be to an
amended bill ; fix weeks upon the firft application ; three wfeekS
upon the fecond ; and a fortnight upon the third ; and this
in all cafes, whether he comes to town, and fweais his
anfwer at the public office (which he may do if he pleafes) or
whether he obtains a commifiion to take his anfwer in die
country. Wy. Pratt. Reg. 16.]
[It is ordered (b) that on a third application for time to
anfwer, the defendant do confent to enter his appearance with
die regifter by his clerk in court in four days, confenting that
the ferjeant at arms attending this court (hall go againit him,
as on a commillion of rebellion returned non efl inventus in
cafe he doth not put in his anfwer by the time granted-,
and that on a fecond application for time to anfwer an
amended bill, or after exceptions allowed, the defendant do
confent to the fame terms. But this is not to rreclude an ap-
plication to the court under fpecial circumflances.J
[After two anfwers reported infufficient, the defendant is
not entitled to fix weeks time to anfwer (c).~\
[Defendant fubmitting to exceptions, is not entitled to
farther time under the general order of 23d January 1794,
having previoufly had three orders for time consenting to a
ferjeant at arms as required by that order (<-/).]
[The defendant having pleaded to the whole of the bill, the
plaintiff amended his bill paying the cofls of the plea. The
defendant was allowed, notwithstanding Lord Rofslyn's order,
the fame time to anfwer as upon an original bill ; the amended
bill in this cafe Handing in the place of a new bill, the amend-
ment being permitted to fave expence (?) .]
[The conftruttion of this order in the cafe of a peer, de-
fendant, is, that in the cafe fpecified, upon application for time
to anfwer, the defendant (hall enter his appearance, and under-
take that if the anfwer is not put in, a fequeitration fhall go,
i. e. a fcqueftration abfolute (/)•]
A bill was filed by two plaintiffs, tenants in common : the
(a) Wy. Pra£r. Re*. 16. (c) 6 Vef. 144.
(b) Order by Lord Rofr.lyn, (
cumftances, without firfl obtaining the ufual order (0).]
[The feveral orders for time may be obtained by motion in
sourt, or by petition to the Mailer of the Rolls, dating ths
(V) Wy. Pratt. Reg. 114. (m) 19 Vef. 444.
).]
[The mode by petition is by ingroffing and leaving a proper
petition addreffed to the Matter of the Rolls {vide Petition)
at the Secretary's Office in the Rolls Yard, and paying 5s. 6d. ;
when it is taken away, the petition as anfwered is to be left
at the Regifter's Office to draw up the order, which is to be
palled, entered, and ferved as before ( q).~\
[An anfwer in a town caufe muft be figned by counfel ;
where it is taken by commiffioners in the country, there
is no neceffity for a counfel to fign it ; in early times, when an
anfwer was taken by dedimus upon the tenor of the bill, it needed
not ; the commiffioners being barrifters at law •, and at prefent
in a country caufe, .where the anfwer is taken by commiffion,
although the anfwer is ufually drawn or perufed and fettled by
counfel, his fignature does not always appear upon the
record (r).]
[The anfwer being drawn or perufed and figned by counfel,
muft be engroffed on parchment ; on each Ikin of which there
jnuft be an half crown (tamp. The furata muft be written at the
top of the anfwer in the left hand in the following form .
Sworn at the publick office in Symond's Inn
day before ]
if) Hind. 226 & 227. might fas the commiffion direo
(a) Hind. 227. ted) examine the defendant there-
by) Hind. 199. [Note. Here- on and take his anfwer to it. By
tofore the tenor of the bill was the flat, of 4 Anne the tenor was
enclofed in, or annexed to, the taken away. Wy. Prad. Reg.
dedimus, that the eommiffipners 112., 113. J
[In
OF FILING AN ANSWER. tC 9
[In a joint and feveral anfwer write both fworn (j).]
It mult commonly be upon oath or affirmation, except in
cafes of peers of the realm, who have fometirnes anfwered
upon oath and fometimes upon honor.
[A bilhop has been ordered to anfwer upon oath (/).]
[The Lord Keeper Egerton ordered the Lady Wharton to an-
fwer upon oath, faying that upon their honour did not bind
their conferences any more than if they mould be permitted to
give evidence to a jury at law upon their honors, where if the
jury found contrary to their evidence, an attaint would not lie
againft them (w).]
[But by an order of the Houfe of Lords 1640, it is ordered
that the nobility of this kingdom, and lords of the Upper
Houfe of parliament, and the widows and dowagers of the
temporal lords, fhall anfwer upon protestation or honour
only O).]
[And fo it feems is the prefent nfage (y).]
Sir Thomas Meers exhibited a bill againft the Lord Stourton ;
and it was ordered that the Lord Stourton fhould be examined
upon interrogatories touching his title ; and it was objected
that he being a peer of the realm ought to anfwer upon his
honour only, and it was refolved by Harcourt Lord Keeper,
that where a peer is to anfwer to a bill, his anfwer put in upon
his honour is fufficient ; but where a peer is to anfwer interro-
gatories to make an affidavit, or to be examined as a witnefs,
he muft be upon his oath (z).
[A quaker puts in his anfwer upon his folemn affirmation
and declaration (a) ]
[The court permitted a quaker to put in his anfwer without
oath or affirmation, the bill appearing to be frivolous (Z>).]
[A jew is fworn upon the pentateuch,, and generally with
his hat on (r).]
The anfwer of an infidel taken by commiffion at Calcutta in
Bengal in the Eaft Indies, after the manner of that part of
the world, was allowed good evidence by the late Lord Chan-
cellor Hardwicke after hearing the arguments of L. C. J. Lee,
L.C.J. Wiltes, and L. C. B. Parker at Lincoln's Inn Hull,
23d January 1744. Hil. 18 G. 2. ; but his lordfhip declared,
it was permitted to be read on account of the fpecial circum-
O) Hind. 227. (*) 2 Safk. jr2. 1 P.W.146.
(/) Toth. 12, fee 4 Bacon Abr. 237.
(w) Toth. 10 & 11. (,.) Wv. Prad Reg. rj.
(.r) Ord. Chan. 40. (,',) 1 P.W. 780.
{y) Pre.Cha. oz. 1 P.W. I46. {y) Hind, 228.
i 7 o OF FILING AN ANSWER.
fiances of that particular cafe, and that he carried it no
further (d)'\. § #
[Iftheanfwerbe taken without oath or affirmation, (which
is often the cafe in an amicable fuit) an order muftbe obtained
by motion or petition of courfe upon plaintiff's confentmg
thereto, or, as it mod ufually is ; upon the motion or petition
of plaintiff himfelf ().]
[Where a bill was filed by executors againft the defendants
for an account of monies received, and difburfed by them as
agents of the teftator, one of the defendants by his anfwer in-
filled that he was not liable to account, not being the agent of
the teftator, but merely a clerk to his (the defendant's) father.
Upon exceptions to the anfwer, the Lord Chancellor faid, that
where the plaintiff brings a bill againft a witnefs as well as the
principal, and the witnefs fubmits to anfwer, he muft anfwer
fully (9).]
[Defendant to a bill for difcovery and account, obje&mg by
anfwer that he had no concern in the bufinefs muft anfwer
fully, though fuch' a plea would bar both difcovery and
relief (r).]
[It teems clear that the defendant having fubmitted to an-
fwer in part, and not denying the leading fa& in the caic,
cannot Hop (hort andrefufe to anfwer to the reft (/).]
[An anfwer which is argumentative, containing no pofitive
(/) 5 Vef. 521. (0) Hard. 13-3. fed vide Gilb.
(m, In fupport of that propo- 2nj.
fition vide the Marquis of Donegal (p) Hard. 1^8.
▼. Stewart, 3 Vef. 446. et Philips (7) 3 Bro. C. C. 238.
v. Carey, 4 Vef. 107. (r) 1 Vef. J. 3 .2. J" •
(m) 11 Vef. 291. et vide 11 4. Bro. QC 544.
Vef. 303. (t) U Vef. 383.
N 4
1 84 MATTER CONTAINED IN AN ANSWER.
averment or affertion of a facl, which if true might prevent the
plaintiff's right to a dfcovery, is infufficient (r).]
[The plaintiff moved for the production of letters mentioned
in a fchedule to the anfwer ; the defendant having fubmitted to
anfwer, is bound to produce them (u) ]
[If the difcovery fought by the bill is matter of fcandal, or
will fubje£t the defendant to any pain, penalty, or forfeiture,
or to any ecclefiaftical penalties or puniihment, he is not bound
to make it ; and if he pleafes, he may infift by anfwer that he
is not bound to make the difcovery (w).]
[I. S. gave a bond to pay 800 1. a year to H. during the
time S- enjoyed the office of or whilft any body held
it in truft for him. H. put the bond in fuit, S. brings a bill
for an injunction, and crofs bill is brought by H. to difcover
whether E. held the office in truft for S. — S. infilled by anfwer
that he was not obliged to difcover what would fubjecf him
to the incapacities of the feveral acls to vacate a feat in parlia-
ment on a member's accepting a place. Defendant is not
bound to make the difcovery, though he fubmitted to anfv . r 5
he could not have demurred, for that would have admitted the
fa£ts to be true (#),]
[Notice may be denied by plea or an/iver, where a defendant
Infills that he is a purchafer for a valuable confideration (y).~]
[Where a defendant infills on the ftatute of limitations by
his anfwer, he fiiall at the hearing have the fame benefit as if
he had pleaded it (z).]
[An agent charged bv the bill with perfonal fraud_, cannot
by difclaiming intcrefl, avoid anfwering fully (a).]
[A truf"ee in a will who reieafed and never a£ted, ought not
to be made a party in a fuit to fet a fide the will on the ground
of fraud, and therefore need not anfwer as to the fraud
alledged, he not being charged with perfonal fraud (£)■]
[Lord Eldon was of opinion that an anfwer clearly evafive
upon the face of it, and no reafon afligned how it happens that
he can put in no better anfwer, ought by general order to be
made by the court, to be confidered as a contempt of the
court (c).]
[Where more than ufual time for anfwering is neceffary, the
proper courfe is to apply on affidavit ; not to put in a fhor|
evafive anfwer for the purpofe of gaining time () .]
[The anfwer in mifnaming the plaintiff, was confidered as no
anfwer ; the defendant therefore not bound by it, and a proper
anfwer being put in, the former was ordered to be taken off the
file by the defcription of a paper writing, purporting to be an
anfwer (q).~\
Executor muft either admit affets to anfwer the particular
demand, or fet forth particulars (r).
[Matter difclofed by the defendant's anfwer, or fa£ts exifting
at the time of exhibiting the bill, and not then known to the
(&) ii Vef 526. (n) 1 Vern. 140.
(/) 2 P.W. 87. (©) 1 Vern. 448.
\i) 4 Vin Abr. 442. (J>) 2 Vef. J. .372.
(/) 3 P.W. 95. I Atk. 450. (q) II Vef. 62.
fm) J Vern. 185. (> ) Ayl. 546.
complainant,
MATTER CONTAINED IN AN ANSWER. 187
complainant, or confidei-ed neceffary to conftitute part of his
cafe, are by the complainant, with leave of the court, added to
or inferted in the bill by way of amendment ; and the anfwer
which the defendant is compellable to make thereto is denomi-
nated an anfwer to an amended bill (s).~\
[As a further anfwer is confidered as forming part of the firft
anfwer, fo an anfwer to an amended bill is confidered as part
of the anfwer to the original bill as much as if it had been
engrofTed on the fame parchment, and part of the fame record ;
therefore if a defendant in further anfwer or an anfwer to an
amended bill, repeat any thing contained in a former anfwer,
the repetition, unlefs it varies the defence in point of fubftance,
will be confidered as impertinent (/).]
[In a bill by a creditor againft an adminiftrator, the latter
by his - anfwer ftated he believed the debt was due : ^uare t
Whether that is a fufficient foundation for a decree (w).]
(s) Hind. 280. (/) 3Atk. 303. (iv) 6 Vef. 738.
CHAPTER THE THIRTY-SECOND,
Amending Anfwers.
r pHERE are no fettled rules for amending of anfwers, but it
-*- is difcretionary in the court.
[The defendant may wichout notice move to amend his
anfwer in a fmall matter ; but if it be in a material point, he
muft give notice of the motion for fuch amendment to the plain-
tiff's clerk in court or folicitor ; and though it be in a material
point or after iffue joined, yet the court will on affidavit of
iurprize and payment of cofts, allow of an amendment (a).']
[The mod common cafe of amending anfwer is, where
through inadvertency a defendant has miftaken a fa£t, or a
date ; there the court will give leave it fhall be amended to
prevent a defendant from being profecuted for perjury (b).~\
[Bill to afcertain boundaries of lands intermixed, defendant
by the draft of his anfwer fwore that 25 or 30 acres had 35
years ago been allotted to the plaintiff; but in the engrofiment
this was by miftake made 250 or 300 ; on an affidavit of the
miftake and how it came, the court gave leave to amend j
they would not however let him amend another miftake of 86
acres inftead of 68 ; the draft and the engroflment being the
fame (r).]
[At the hearing of a caufe (a) it appeared by the office copy
and the anfwer on the file, that the defendant admitted he had
fold her {hares in the Welfh Copper Company ; in the original
draft the word " ten" was ufed inftead of the word "her \"
on full affidavits by the folicitor and his clerk, that this was
only a miftake in the perfon who engroffed the anfwer, and the
foul draft being produced, upon folemn debate before the Lord
Chancellor afiifted by the Mafter of the Rolls, the court gave
the defendant leave to amend the anfwer, and fwear it over
again, though no precedent (e) could be ihewn that this was
(a) 1 Eq. Ca. Abr. 29. (d) 2 P.W. 426.
\b) Per Ld. Hardwicke, 2 (e) Scd vide the note to the
Atk 294. above cafe.
(c) Bunb. 295. in the Exche-
ever
AMENDING ANSWERS. i8 9
ever done after the caufe heard, and this had been before
denied on a petition and on a motion.]
[Bill for a difcovery of title, and for an account of rents and
profits : defendant in her anfwer faid, fhe had purchafed the
eftate in 1676, and had continued in poffefiion ever fince, and
had received the rents and profits thereof. On recolie&ion,
the defendant difcovered that by agreement on the purchafe,
the vendor and his wife were to continue in pofleflion, and
receive the rents and profits during their lives, which they
did until the year 1690 ; upon motion the court gave leave for
the defendant to amend her anfwer in this particular, it being
lather for plaintiff's benefit, and the defendant being 95 years
°fage(/).]
[The Dutchefs of Wharton petitioned, that fhe might be at
liberty to amend her anfwer by adding a new fa6t. In her
anfwer fhe referred to marriage articles, which were executed
in Spain, and consequently made it incumbent upon her to pro-
duce them ; now the cultom of Spain is to depofit articles and
other deeds in places appointed for that purpofe, fo that an
authentic copy was all tltat could be had ; and fhe was per-
mitted to amend her anfwer fo far as to let forth the cuftom of
Spain with regard to the depositing of deeds (g).]
[Bill claiming a remainder in fee after an entail fpent, the
defendant put in an anfwer, and infifted on a fine having been
levied by one of the remainder-men in tail, and claims under
him •, and now before replication filed petitioned for leave to
take the anfwer off the file, and to put in a new anfwer, and
thereby infills on the pcrfon under whom he claims being a
purchafer for a valuable confideration without notice ; and to
fupport his petition he made an affidavit, that this new title had
not been difcovered till after he put in his anfwer ; the an-
fwer was taken off the file, and the new matter added by way of
addition on payment of the cofts of this application, and of the
amendment (£).]
[His Lordiliip faid, he had known anfwers amended after
profecution for perjury commenced, but only where circum-
stances were extremely itrong to (hew it a miitake (*').]
[The defendant an executrix admitted i.ffets of her teftator,
but at the fame time infifted that nothing was due to the plain-
tiff. By the Mailer's report a large fum of 1000L and up-
wards appeared to be due to the plaintiff ; whereupon the de-
fendant applied for leave to retract her admiffion in her an-
fwer. On affidavit Hating her reafons, which were very ftrong
(/) Bunb. 325. in the Ex- (h) Amb.292
chequer. (i) Barnard. Eq. Rep. 50.
(i-> 2 Atk. 294.
for
i 9 o AMENDING ANSWERS.
for believing when fhe put in her anfwer that nothing was due,
and that on that account fhe had been advifed by counfel to
make fuch admiflion ; this was confirmed by affidavit of her
counfel and folicitor ; fhe fwore that fhe had but4ool. unad-
miniflered to, and offered to be examined on interrogatories.
Lord Chancellor allowed her to fwear her anfwer de novo, ad-
mitting affets to the amount of 400 1. with liberty to the plain-
tiff to examine her as to afiets ultra (£).]
[Motion to ftrike out of the defendant's anfwer feveral
words importing that he had received 1300b, in full for his ad-
vancement, from his father in his life-time, and refufed to bring
it into hotchpot ; the defendant s anfwer to the fupplemental
bill was read, in which he faid he was miftaken in the law in
that point, and defired he might be at liberty to waive any ad-
miffion he had made in it, and to wait till the Mailer had
made his report. Motion refufed (/) .]
[Bill by next of kin of teftator againil executor, to account
for the furplus •, the executor anfwered and waived the benefit
of the furplus by miftake of the law in that point ; and though
he afterwards proved that the teilator intended him to have the
furplus, yet not fuffered to amend his anfwer (/«).]
[On an application to amend a fchedule to defendant's an-
fwer, an indictment for perjury having been preferred, or
at leaft threatened : Lord Chancellor refufed to interfere,
although he took it to be clear that the defendant did not
mean to perjure himfelf as he had no intereft in fo doing.
That queftion would be proper before the grand jury, who
if they thought the defendant did not mean to perjure himfelf
would throw out the indictment ; on the other hand if there
were ground for the indictment, it would be wrong for him to
interpofe. A fimilar application had been rejected a few days
before in the cafe of Vaux v. Lord Waltham («)•]
[Motion was made to amend an anfwer after replication,
upon affidavit that the defendant was informed that he had a
good defence {viz; a modus), and had not inferted it in his an-
fwer, not being able at that time to fet forth the modus with
precifion ; motion refufed (0).]
[The court of Exchequer never fuffers an anfwer to be
amended \ but will fometimes permit a defendant to file a fup-
plemental anfwer (p).~\
(k) Doyley v. Crump, July («) 1 Bro. C.C. 419.
18th, 1789. VVy. Praa.Reg. 33. (0) 2 Anil. 363.
(/) Ambl. 65. (J>) 3 Anil. 717.
\m) x P.W. 295.
[Tht
AMENDING ANSWERS. 191
fThe former practice was to allow the anfwer to be amended ;
but now the courfe is to put in a fupplemental anfwer. The
affidavit in fupport of the motion ought to ftate that at the time
of putting in the anfwer, the defendant did not know the cir-
cumftances upon which he makes the application, or any other
circumftances upon which he ought to have ftated the fa£l
otherwife (q)-~\
[In a cafe of miftake in an anfwer, it was not allowed to be
taken off the file, but an additional anfwer giving the explana-
natiqn was permitted (r) .]
(q) IoVef. 401. (r) 8 Vef. 79.
( J 92 )
CHAPTER THE THIRTY-THIRD,
Referring Anfwer s fur Scandal^ Iffc.
A N anfwcr which is fcandalous or impertinent, upon appli-
-^*- cation to the court, by motion of courfe will be referred to a
Matter to look into fucli pleading, and certify whether the fame
be fcandalous or impertinent. The order of reference drawn up,
pafled, entered, and ferved on the adverfe clerk in court, is to
be carried to the Mafter's office to whom the reference is made ;
upon producing the order, the Mailers clerk will give out a
warrant ufually appointing an attendance the day next but one
from the day on which the warrant is taken out. This warrant
is to be ferved upon the adverfe party by leaving a copy thereof
with his clerk in court perform lly, or wifch the agent at the
c'erk in court's feat in the Six Clerk's office. If the oppofite
party do not attend, the Mailer, after fervice of three war-
rants, on affidavit of fervice being made, will proceed ex
parte. The office copy of the record referred muft be brought
by the folicitor to the Mailer's office at the time appointed, and
the oppofite folicitor attending, the Mafter infpe£ts the plead-
ing, and the claufes objected to as fcandalous or impertinent,
and certifies whether there be fcandal or impertinence in the
record or not. The certificate is in the nature of a report, but
requires no application to the court for confirmation («;.]
[A reference of an anfwer for impertinence is waived by
a fubfequent reference for infufficiency {b).~\
[After a reference for infufficiency the anfwer cannot be
referred for impertinence (c), but it may for a fcandal (*/).]
[An anfwer cannot be referred for impertinence, after it has
been replied to ; nor after the plaintiff has undertaken to fpeed
his caufe, which is tantamount to filing a replication. Barnes
V. Saxby, 21 ft June 1792]
[An anfwer may be referred for fcandal upon thejnotion of
another defendant (*> ) .]
(a) Hind. 254, 255. (d) 2 P. W. 31a. in the note.
(b) 6Vef. 456. le) 6Vef.si4.
(c) 6Vcf. 453 .
9 [If
REFERRING ANSWERS FOR SCANDAL, Sec. 193
[If the plaintiff refer the anfwer for fcandal and impertinence,
?.nd the Mailer find the anfwer neither fcandalous nor imperti-
nent, trn plaintiff u 1 excepting to tue Mailer's report muft in
his exceptions (hew wherein, in what line or page, and how
far the anfwer i:; icandalous or impertinent, in order that fuch
part of the anfwer may be cxpung.-d by the Mailer ; and it is
not fuiheient to fay in general, that the anfwer is fcandalous and
impertinent (/).]
[And if a fill or anfwer he referred for fcandal and reported
by the Mailer to be feaud dems, if the Mailer has once ex-
punged the fcandal, the party cannot then except to the
report, becaufe when die fcandal is expunged, it cannot
be made appear by the record what that fcandal was,
and it was the party's own fault that he did not except
fooner ,g).j
[The Mailer's certificate or report figned by him mufb be
filed at the Report OiHce, and a copy thereof taken. If the
Mailer certify that the record contains fcandal or impertinence,
or both, an application grounded on this certifi ate fhould be
made to the court by motion of courfe, that the Mailer may
expunge the fcandal or impertinence, and tax the party his
coils, and this order being proceeded in as before, and a war-
rant taken out thereon and ferved, the clerk in court who filed
the record, will, upon notice, take the record from the Six
Clerk's Office and attend ancf produce it at the Mailer's Office,
in order that the fcandal may be expunged, which is done by
the Mailer's ftrikmg his pen through the words which are
fcandalous or impertinent, and fetting his initials againil the
parts expunged (/;).]
[The record then is taken back from the Mailer to the
Six Clerk's Office by the clerk in court •, the soils abide the
event of the reference. The party applying to have the fcandal
expunged, and to whom coils are ordered after the record is re-
ported fcandalous or impertinent, leaves a bill of coils at the
Mailer's Office, and takes out and ferves on the clerk in
court a warrant on leaving his bill of coils, and another war-
rant to proceed thereon ; after three warrants to proceed, regu-
larly ferved, ifnoperfon attend on the other fide, the Mafter
will proceed ex parte ; the perfon who ferved them firft making
affidavit of the fervice (;).]
(/") 2 P.W. 181. {h) H!nd. 256.
Qj) Ibid. (i) Hind. 256.
Vol. I. O £The
io 4 REFERRING ANSWERS FOjR SOAN0AL, &c;
[Therepoit of colls being figned by the Mailer and filed;,
the party recovers thefe colts by fubpxna ; or it the Mailer
reports the bill or anfwer, &c not fcandalous or impertinent,
asd die parties fubniit to his opinion, the party in whole favour
the report is made, may apply by motion of courle founded
upon the report for the Mailer to tax the colli of the reference,.
and when taxed the party may recover them by the like pro-
cefs. To procure zfubpeena for coils the folkitor leaves at the
Subpoena Office a prscipe in the following form, producing the
Mallen's report at the fame time.
Subpoena Jarvoife Jones clerk, to pay five pounds cofts
to John Radcliffe efquire, or bearer, tejhd 28th
June 1783.
Tilly folicitor.
The form of the Writ,
George the third,. Sec. To Jervoife Jones clerk, greeting.
We command and Itriclly injoin you, that you pay, or caufe to-
be paid immediately aft'e? the receipt of this writ, to John
Radcliffe efquire, or the bearer of thefe prefents, five pounds
colls, by our court of Chancery adjudged to the faid John
Radcliffe for his cofts, charges, and expences, had and fuf-
tained in the fame court by means and occafion of your
unjuft vexation j and this you may in no wife omit under
the penalty of one hundred pounds. Witnefs ourfelf at
fFefltmnJhr the day of in the
year of our reign.
Courtcnay and Courtenay.
Indorfed by the court.
Label. Jarvoife Jones clerk, to pay five pounds cofts-
to John Radcliffe efquire, or bearer.
Courtenay and Courtenay (£).]
[The grofs fum at which the cofts are liquidated is fpecifically
fet forth in the body and label of the writ, and always made
payable to the party or bearer •, the perfon ferving the proeefs
muft demand the cofts, and his receipt will be a fufficient dif-
charge. The lervice of the proeefs mull be perional, and an
a£tual demand of the cofts made at the fame time ; it cannot
bfc ferved otherwife without an order of court made on motion
or petition (grounded on an affidavit that the party cannot be
lound to be ferved perfonally) and fubllitutmg a fervice by
(i) Hind. 257.
leaving
REFERRING ANSWERS FOR SCANDAL, &c. 19;
leaving the writ with the adverfe clerk in court, or otherwife.,
and that to be good fervice if" perfcnally ferved (/).]
[If the party refufe or neglect to pay the cofts upon perfonal
fervice and actual demand, an affidavit ot the perfonal fervice,
demand, and refufal, being made by the party ferving the pro-
cefs and left with the r lerk in court, he will make out au
attachment, and the whole line of procefs to enforce obedience
may be awarded \m) ]
(J) Ord. Can. 9;. Hind. 258. (m) Hind. 258.
O2
( I 9^ )
CHAPTER THE THIRTY-FOURTH..
Excepting to an Anfwer for \nfufficienc\.
EXCEPTIONS are the allegations of a party in writing,
alledging that Come pleading or proceeding in a caufe is
infufficient, or not perfectly anfwered in a certain point or
points, particularly expreffed and fet forth in fuch exceptions.
But if the anfwer he good to a common intent, the plaintiff
muft reply and prove the matter of his bill to be true if he can,
and not infill upon the insufficiency of the anfwer; but this
muft be intended of things tranfa&ed publickly, whereof there
may be a general cognizance ; for of matters done by defendant
privately, or refting in his own knowledge only, he ought to
anfwer particularly and certainly.
[If defendants anfwer feparately, exceptions muft be taken to
each anfwer- 2 Dick. 609.]
Thefe exceptions are drawn or at Ieaft perufed and figned by
counfel. And the practice in filing exceptions touching the
infufhciency of anfwers, is to deliver them by the plaintifFs
clerk in. court fo figned, on undamped paper to the defendant's
clerk in court, or his clerk or agent at his feat, firft marking
them at the top with the day of the month and year when
delivered ; and this is called filing exceptions.
[The exceptions muft fhew fome particular points whereia
the anfwer is defective, and not furmife the infufhciency in
general only ; elfe the court will not refer it to be ex-
amined {a).'\
[lie that excepts to an anfwer, is tied to no certain time to get
it referred, unkfs by fpecial order for that purpofe obtained,
or with rcfpect to his injunction, left it be diffolved for his
affected delay (£).]
Care muft be taken in drawing exceptions, that no miftake
happen therein ; for no new exception is to be added (r).]
'But amendment of exceptions has been permitted upon
miftake •, as where the plaintiff for the purpofe of inftrufting
his counfel, in drawing exceptions to the anfwer, fent him by
miftake the original draft of his bill, initead of another draft
(a) Toth. 49. (e) Bunb. 246. 11 Vef. 575.
it>) VVy. Prad- Reg. 203.
n from
EXCEPTING TO AN ANSWER, &c. 197
from which the bill. was engrofled» which differed materially.
The miffoke not being difcovered till it was too late to rectify
it, the court gave the plaintiff leave to amend his exception
paying the expences. 10 Vef. 2S5. in the note, et 284.]
[Where exceptions have been taken to the anfwer and
the plaintiff moves to amend, if he goes upon the anfwer
to the original and amended bill as insufficient ; he mult
go before the Mailer upon the old exceptions as they apply to
the original bill, and upon new exceptions as to the new matter
introduced by the amendments •, and the utmoft he can have,
is the Mailer's judgment upon the anfwer to the amendments,
with reference to fuch parts of the original bill as apply to
them. 1 1 Vef 570 it 581.]
No exceptions can regularly be taken to an anfwer after
replication ; for thereby the anfwer is admitted fufficient, yet
in fome cafes the court will order the replication to be with-
drawn and the exceptions received.
If an anfwer be filed in term, the plaintiff muft deliver hi*
exceptions the fame term or within eight days after. But if
the anfwer be filed in the vacation, the plaintiff hath eight
days after the beginning of the next enfuing term to put in
exceptions. [But if plaintiff has omitted to file exceptions in
time, he muft either procure defendant's confent, or obtain an
order by motion or petition for leave to file exceptions nunc pro
tunc. The time for doing which, is two terms and the fol-
lowing vacation. If he negleci to do it then, the court will
not give leave but upon particular circumftances (d).~\
[Plaintiff in a bill for difcovery only, is not entitled as of
courfe to two terms to except to the anfwer filed in the vaca-
tion (<>).]
The defendant has, from the delivery of the exceptions, eight
days to confider whether he will fubmit to anfwer -, and if he
does fubmit he muft pay twenty (hillings cofts.
[A defendant is ufually called upon by the plaintiff 's clerk in
court to anfwer after the eight days are expired ; and if he
fubmit to put in a further anfwer, the plaintiff's clerk in
court generally calls for the anfwer and gives notice of attach-
ment if it be not forthcoming, 8cc. ; before the further anfwer
is filed, the defendant muft pay to plaintiff 20 s. cofts. A
defendant refiding in London or within ten miles (which is a
town caufe) is entitled to an order for a month's time to an-
fwer the exceptions ; if he refide above twenty miles from
London, he may obtain by motion or petition an order of
U) 3 Atk. 19. Barnard 53. 6 Vef. 825. (/) 5 Vef. J, 86.
O 3 courfe
j 9 8 EXCEPTING TO AN ANSWER, Uc.
courfe for a dedimus to take his anfwer, and fix weeks time to
return it (/).]
Suchfecond anfwer being filed, and 20 s. cofts paid to the
plaintiff's clerk in court for fubmitting to put in a better
anfwer, and fuch fecond anfwer being fufficicnr, the plaintiff
may then go on to reply to fuch anfwer. Though the plaintiff
cannot refer exceptions to a firft anfwer till eight days after
they are delivered and not fubmitting to put in a further anfwer ;
yet on a fecond inefficient anfwer, they may be referred im-
mediately.
[A fecond anfwer may be put in, pending the exceptions to
the firft. 1 Vef. J. 87.]
[In an injunction caufe, the plaintiff fhould file exception?
to the anfwer, before the defendant can have an opportunity of
moving to diffolve the injunction niji ; for although the plain-
tiff on the day for fhewing caufe fhew exceptions to the an-
fwer, for caufe againfl diffolving the injunction, yet he will
be put upon terms of procuring the Mafter's report in four
days, or the injunction will be difiblved without further
order (/>).]
[If the defendant conceives his anfwer to be fufficient, an
order of courfe muft he procured upon motion or petition for
a reference to a Mafter to look into the plaintiff's bill, and de-
fendant's anfwer, and the plaintiff's exceptions taken thereto,
and certify whether the defendant's anfwer be fufficient in the
points excepted to or not ; the order drawn up, parted, and
entered at the Regifter's office, muft be ferved upon the
defendant's clerk in court ; and a fair copy of the excep-
tions left at the Mafter's office, to whom the reference is
made (/).]
The order of reference being produced and fhewn to the
Mafter, or left at his office, at the requeft of the party his
clerk in court or folicitor, he iffues a warrant appointing a time,
and place, ufnally his chambers, for the parties concerned to
attend him •, which being ferved on the adverfe party's clerk
in court by fhewing it and delivering a copy, if he attends not,
the Mafter will grant a fecond warrant appointing a further
day ; and if he does not attend, a third warrant iffues, which is
commonly called a peremptory warrant ; and then not attend -
(_/*) Hint}. 261. Lord Eldon anfwer the exceptions, he /hall
in 8 Vef. 603. fays, that the con- come under the te:ms upon the
{traction of Lord Rofslyn's order fe.-ond application.)
is, that if a perfon having an- (h) Hind. 260.
fwered without coming in under (i) Hind. 262.
the terms, applies for time to
ing
EXCEPTING TO AN ANSWER, Sec. 199
ing purfuant thereto, the Matter on oath of fcrving the three
warrants on the adverfe clerk in court, or on his clerk or agent
at his feat, will proceed and make his report ex parte of that
-fide that attends and deflres it. And parties may attend the
Mailer with their counfel, clerk in court, or folicitor, or all of
them, as they fee caufe. [The Mailer's clerk will grant a war-
rant upon /eavitigihe exceptions, and another warrant to proceed.
Each warrant fbould be underwritten with the matter to be
•proceeded on. Hind. 262.]
[The report when figned by the Matter, is taken away by the
party, inwhofe favour the report is made, paying 15 s. and carry-
ing it to office to be filed ; 4 d. is paid for filing, and if an
office copy is necefiary to be taken, is. 6d. is paid for the
firtt fide, and one fhiilmg for every other fide (£).]
Warrants given out by the Matter, mutt be ferved on the
adverfe party's clerk in court, by delivering a copy thereof to
the clerk in perfon, or leaving a copy thereof with his clerk
or agent athis feat in the Six Clerk's office, which is the known
office for doing bufinefs •, and it ought to be ferved there,
while the office is open, and left with the clerk and agent as
?ibove ; for the bare leaving it at the feat when nobody is there,
and which is many times done, is nofervice.
[in the fervice of warrants, an interval of one whole day
between the day of fervice and the day of attendance is fuf-
ficient. Sunday is not reckoned one. Mind. 2^3.]
Where caufe is fhewn for a continuance of an injunction
•upon exceptions filed to the anfwer, and where the court .puts
•the party upon procuring the Matter's re-port in four days, as
is always done in luch cafes, there the party is to take out and
ferve his warrants with all poflible difpatch, and a day's notice
to attend is fuffieient j as it the warrant be taken out in the
morning to attend in the evening ; becaufe the party has but
four days to procure the report ^ and if he fail therein, he lofes
the benefit of his order } tut where the Matter cannot finifli
his report in four days, the folicitors ufually agree that the
Matter fkaH date his report as within the four days, and give
him a little longer time to confider of it, or the Matter may
certify that -the time is too fhort, and the court upon reading
fuch certificate, wiil allow fuch further time as the Matter
mall certify he wants-
There are cafes where exceptions are taken to the anfwer,
and where the party has not anfwered them at all, but infilts
on his right, and that he is not bound nor ought to anfwer
them •, and in this cafe the Matter generally reports according
(i) Hind. 263.
O 4 to
200 EXCEPTING TO AN ANSWER, &c.
to the exceptions ; becufe they will not take upon themfelvcs
to judge how far the derendant ought or ought not to anfwer ;
bui leave it to be determined by the court ; and when it comeo
on upon an exception, the court frequently difpenfes with de-
fendant's not anfwering the exceptions, where immaterial or
matters of title.
Ix the firft anfwer be reported inefficient, the defendant is
to pay forty millings coils, and if taken in the country by com-
miinon two pounds ten {hillings; three pounds for a fecond
anfwer ; four pounds for a third, rive pounds for a fourth,
&c. And the fourth anfwer being reported infufficient, the
plaintiff may move on the Mailer g report filed, that the de-
fendant may (land committed, and the defendant ihall not be
discharged till he has put in a full and fufficient anfwer, and
paid the cofts of the contempt.
[A defendant until a fourth infufficient anfwer is ent'tled to
be difcharged from cuiloty for the contempt immediately on
putting in a further anfwer without waiting the report upon
the reference of the exceptions, though the coils have not been
accepted. 1 1 Vef i>i.]
But if the anfwer be reported fufficient, the plaintiff
(hall pay the defendant 40s. coils.
[A defendant's plea was over- ruled ; and then he put in
three infufficient anfwers ; the court did not think fit to commit
him to be examined on interrogatories, as if he had put in four
Infufficient anfwers {/) ]
[For the recovery ofthefe coils, and to compel the defendant
to put in a further anfwer, the plaintiff immediately fues out
•z. Jubpcena for coils, and ferves the defendant perfonally there-
with, and demands them ; if he neglecl or tefufe payment on
demand, on an affidavit of the fervice of the Jubpcena, and de-
mand of the coils (which are always made payable to plaintiff
or bearer of the Jubpcena and his receipt will be a fufficient
difcharge) the clerk in court (the affidavit of fervice being left
with htm) will iiTue an attachment, and the whole line of pro-
cefs may be awarded, until the party is taken, or obeys the
writ (/;/)•]
.Note. If exceptions are found againft a defendant upon an
anfwer, he muil pay the coils, and put in a better anfwer,
and the plaintiff may have one Jubpcena for coils, and another to
make a better anfwer, which are always returnable immediate;
and this lail Jubpcena is ufually ferved upon the defendant's
clerk in court, and the other muil be ferved perfonally on the
defendant, and the coils demanded of him. And if the ex-
(/) 1 Gha. Ca. 179. {rn) Hind. 265.
ceptions
EXCEPTING TO AN ANSWER, &c. 201
ceptions be upon another matter, the court determines them
upon hearing them argued, or fends the parties back to the
Mafter to review his report.
[To oblige the defendant to put in a further anfwer to a.
bill, (when his anfwer is reported infufficient, and no excep-
tions taken to the report) the plaintiff does not ferve the de-
fendant with zfubpoena personally, fervice of ajubpeena to mak>:
a better anfwer upon a defendant's clerk in court, is good
fervice upon the defendant («) ]
[To procure this writ a precipe in the following form muft be
left at the Subpoena office, and five findings, if one or two de-
fendants, and fixpence for the additional label when there are
three defendants.
Subpoena. Ralph Leycefter to appear in Chancery to make a
better anfwer at the fuit of Peter Brooke complainant return-
able immediate.
Tefted 15th March 1783 («).]
Tilly folicitor.
The writ is in the following form.
[A Subpoena to make a better anfwer.
George the third by the grace of God, &c.J To Ralph Ley-
cefter greeting For certain caufes offered before us in our
Chancery, we command and ftrictly enjoin you that laying all
other matters afide and notwithstanding any other excufe, you
perfonally be and appear before us in our fa id Chancery im-
mediately after the receipt of this writ, wherefoever it fhall
then be, to anfwer concerning thofe things, which (hall be then
and there objected to you, and to do further and receive what
our faid court fhall have confidered in this hehalf ; and this you
may in no wife omit under the penaltv of one hundred
pounds, and have there this writ. Witnefs ourfelf at Weft-
mtnfier the tenth day of April in the twenty- third year of our
reign. Courtenay and Courtenay.
Indorfecl, By the court, to make a better anfwer at the fuit" of
Peter Brooke complainant.
Label Ralph Leycefter to appear in Chancery im-
mediately, to make a better anfwer at the fuit of
Peter Brooke complainant.
Courtenay and Courtenay (/>).]
f«) Hind. 265. 0) Hind. 265. (j>) Hind. 265 & 266.
[The
c j EXCEPTING TO AN ANSWER, &c.
[The writ, when fealed, is left at the Jidpcena office, where
the folicitor calls to take it away [q).']
[The defendant is obliged to anfwer in eight days after fer-
vice exclufive, or in a town caufe obtain an order for time
to anfwer the exceptions generally a month ; in a country
caufe an order for a commiilion, and fix weeks time to return
it(r).]
No new commifiion by the ftricT practice of the court (hall
be awarded for taking any fecond anfwer, unlefs by order on
affidavit made of the party's inability to travel, or other good
-caufe to fatisfy the court touching the delay, and firft paying the
cofts of fuch inefficient anfwer, or by the confent of the plain-
tiff 's clerk for expediting the caufe •, but no fuch fecond com-
mifiion is ufually confented to.
IfihefiVft anfwer be reported infufficient, the defendant if
he anfwers again without excepting to the report, nuift anfwer
all the points reported infufficient, although the fame exceed the
charge in the bill '/) ; and the plaintiff in fuch cafe may alfo by
motion or petition obtain an order to amend his bill without the
cofts. And that ihe defendants may anfwer the amendments and
.exceptions at the fame time, provided the amendments be not
lo extenfive as to require a frefh ingroffment ; for in that cafe
20 s. cofts muft be paid. Hind. 281.]
[A Subpoena to anfwer the amendments is not ferved when
exceptions are taken to an anfwer where the defendant fub-
niits, and the plaintiff obtains an order upon fuch fubmiffion to
amend his bill, and that the defendant may anfwer the excep-
tions and amendments at the fame time ; fervice of that
order by leaving a copy of the order pafied and entered,
upon the defendant's clerk in court perfonally, or with his
agent at his feat in the Six Clerk's office, will be fufficient.
Hind. 282.]
If the M after reports the anfwer infufficient in one iingle
exception, the defendant muft except to the report, or fubmit
according to the report ; if he doth not except but fubmits to
anfwer over, he, muft take care to put in a full anfwer; for
having once fubmitted to anfwer over, he has allowed the
judgment of the Mailer to be good againfl him ; and in this
cafe he fhall not infill by his fecond anfwer, that he ought not,
to anfwer the exceptions, nor ihall he, in cafe of a fingle ex-
ception afterwards, except to report, and bring it on for the
.udgment of the court, whether he ought to anfwer over or
{7) Hfiid. 266. (r) Sedvide 6 Vef.603. (s) 1 Cha.Ca. 60. Eq.Ca.35.
not y
EXCEPTING TO AN ANSWER, Sec. 203
not ; for this he might and ought to have done at firft, and
then he would have had the opinion of the eourt, whether his
firft anfwer had been good or not, which upon his fecond a:i-
1 wer he can never have ; beeaufe he has concluded himfclf by
fubmitting to anfwer aceording to the report.
But it is conceived this rule does not hold good in all cafes ;
for where the Mailer reports the anfwer infufheient in three or
four or more exceptions, it often falls out that one or more
of theie exceptions are fatal to the party, and fo it would ap-
pear ii the party excepted to the report ; and therefore in thefc
cafes the party may fubmit to anfwer over as to fuch of the ex-
ceptions, which he believes to be againll him ; but as to the
others, if he is advifed that his firft anfwer is full in thofe
points, or if they are of fuch a nature as ought not to be «n-
fwered or altogether immaterial, the defendant in thefe cafes
may, not with!) anding he has put in a further anfwer to the
report, afterwards except thereunto, and have the opinion of
the court thereon, and it was never held, that he was in that
cafe concluded by the report, or bound to anfwer according to
the report. Fide 2 Vef. 492.
[If there are two defendants to a bill, and one of them puts
in an infufficient anfwer, which is fo reported, and on exceptions
to the Mailer's report, the report is confirmed, afterwards the
other defendant puts in jull fuch another anfwer, and infills
on the fame matter ; the court for avoiding delay will judeje
on the infufHciency of this anfwer, without fending it to a
Mafter (/).]
[Three defendants put in joint and fevera! aniWers, which
are reported infufReient 5 two of them fubmit to r.nfw r
the exceptions, the other may bring them on to be
argued (?t.').J
Lord Chancellor held, that when the court orders that the
plea fhall Hand for an anfwer, without faying more, it nnrft be
intended a fufficient anfwer •, an infulhcient anfwer being as no
anfwer. Wherefore this being taken to be a fuSicient anfwer,
and no exprefs liberty to except, the order that was made to
refer the exceptions, and the exceptions themfelves, were dif-
charged (v).
[If there is a demurrer or plea to part of the bill, and in infuf-
ficient anfwer to the refidue, yet the plaintiff Cannot except
until the demurrer or plea i> argued j but if the defendant
anfwers to a bill as to matter of difcovcry, and pleads only as
(0 1 V\in. 74. ( w ) Ay!. jfi. 0) 3 F.W. 240.
to
204 EXCEPTING TO AN ANSWER, &c.
to relief ; the plaintiff may except to any matter of difcovery
before the plea argued, becaule it is plain that no matter of dif-
covery is covered by the plea (z).\
When a defendant is in contempt for want of an anfwer, and
an infuflicient anfwer is put in, that is no anfwer at all ; the
plaintiff is not to begin his procefs de novo, but go on regu-
larly from the lafl procefs (a).
[If a plea or demurrer be over-ruled, the defendant mufl
anfwer the whole bill ; and the ordinary procefs of contempt
iffues to compel an anfwer, as in other cafes. But if an anfwer
was filed with the plea or demurrer, the defendant upon his
plea or demurrer being over-ruled, need not put in another an-
fwer till the plaintiff has taken exceptions (£).]
[Words of coitrje preceding exceptions to anfavers :
In Chancery. Between A. B. plaintiff.
C. D. defendant.
Exceptions taken by the faid complainant, to the anfwer put in
by the faid defendant, to the faid complainant's bill of com-
plaint in this caufe.
Firft exception. For that the faid defendant hath not an-
fwered and fet forth according to the befl and utmoft of his
knowledge, remembrance, information, and belief, whether, 8cc.
Second Exception. For that, &c.
Third exception. For that, &c.
Conclufion.
In all which particulars the faid complainant humbly
infills the faid defendant's faid anfwer is, as the faid
complainant is advifed, evafive, imperfect, and
infuflicient ; and the faid complainant therefore
excepts thereto, and prays that the faid defendant
may put in a further and better anfwer to the faid
bill of the faid complainant.]
(a) 3 P. W. 326, 327. Mitf. be permitted to withdraw the
252. [The effeft of taking ex- excep ions, paying the cofts. 13
ceptions, pending a demurrer to Vef. 85.]
a difcovery, is to admit the de- (a) 2 Keb. $.
murrer. But the plaintiff will (6) Bunb. 123.
2o:
CHAPTER THE THIRTY-FIFTH.
Exceptions te the M after* s Report •with Reference to an
Anfwcr.
rnpHE opinion of the Mailer in" matters of fcandal, imper-
ii -*■ tinenee, or infufliciency of anfwer, is conclufive, unlefs
by excepting to the Matter s report, or certificate, either of
the parties bring the matter on for difcuffion in court, and there
obtain a different judgment (a).]
[Exceptions to a report or certificate of fcandal, imperti-
nence, or fufficiency of anfwer, are in their nature fimilar to
exceptions to infufficient anfwer* (£).]
[The exceptions drawn or perufed, fettled and figned by
counfel, umlt be fairly tranferibed uppn paper or parchment,
upon each fheet or lkin of which there mufi be a treble fix-
penny ftamp.]
You file fuch exceptions with the fenior regifter, upon
which vou muff make a depofit of five pounds with fuch
regifter, and you may on fuch rcgifter's certificate get an
order upon petition to the Chancellor, for fetting them down
to be argued. And if the party excepting does not petition
and obtain fuch an order, then the other fide may do it, and
in the mean timejaoth fides may prepare their briefs for counfel
for arguing the exceptions to the report.
[The petition and certificate are to be left with his Lordfhip's
fecretary, and ten (hillings paid, when the petition is taken
away anfwered ; the petition 1 anfwered muft be left at the
Regifter's office to have the order for fetting down the excep-
tions drawn up and paffed ; a copy of the order being made and
entered at the fame office,, and one (hilling paid for fetting
down the exceptions with the Regifter, the order itfelf.muft be
ferved by delivering a true copy thereof to the adverfe clerk in
court perfonally, or leaving a copy with his agent at his feat in
the Six Clerk's office ; in either cafe mewing at the time of
fervice, the order paffed and entered. The time for fetting
down the exception is generally within four days from the date
(a) Hind. 271. (I) Hind. 27:.
of
206 EXCEPTIONS TO THE MASTER'S REPORT, Sec.
of the order, the order itfeff injoining the party fo to do,
and to give notice forthwith, or the order to be of none
[As in itnCtnttefubpaanas for cofts and for a better anfwer may
be awarded and ferved as foon as the report or the certificate
of the anfwer being infufficient is filed, and as the defendant
is in contempt if he does not anfwer the exceptions within eight
days after fervice of the fubpxna, it feems that if the defendant
intends to except to the Mafter's report he ought to prepare and
file his exceptions within that time.]
[If the party be in contempt for not putting in a better an-
fwer, the mere a<£l of filing and fetting down exceptions to
the report will not fufpend execution of the procefs of contempt
delivered to the flieriff ; an order mud be made upon the
adverfe party to flay the execution, and if any delay has been
made, the court will not flay the procefs unlefs the applica-
tion (by motion or petition) be accompanied by an affidavit,
accounting for the delay, and upon notice given to the oppofite
party. Hind. 274.]
[An order for time to anfwer the exceptions is ipfo faBo a
fubmiflion to anfwer, and abfolutely precludes the defendant
from excepting to the report ().]
[By an order (q) of the court all reports and certificates made
and figned by any of the Mafters, fhall be filed with the Regifter
within four days after making and figning, and the Regifter
(hall mark on the back thereof the day of its receipt and filing ;
and all proceedings grounded on fuch report or ceitificate
not filed as aforefaid fhall be utterly void, and the Regifter's
certificate of fuch neg!e£t fhall be a good caufe for the
court to difcharge the proceedings thereon, and for fuch
further cofts againft the party offending as the court fhall
think fit]
[But notwithftanding this order, it is (ufficient if the report
be filed before any proceedings had thereupon, though not
within four days after it was made ; the fp:rit of the order
being to prevent proceedings on a report before it was
filed (r).]
\JVords of eourfe preceding exceptions to a Majter's report :
In Chancery.
Between A. B. plaintiff.
C. D. defendant.
Exceptions by the faid complainant to the report of Edward
Leeds . efquire, one of the Mailer's of this honourable
(n) Hind. 276. (q) Ord. Cane. 189.
(0) Hind. 277. (r) 2 P.W. 517.
(p) Wy. Pratt. Reg. 378.
court
EXCEPTIONS TO THE MASTER'S REPORT, &c, 209
court, made in this caufe, and bearing date the 20th day of
Jannary 1783.
Firft exception. For that the faid Mafter hath in and by his
faid report ftatcct tliac > 8cc.
Second Exception. For that the faid Mafter hath in and by
his faid report certified that, Sec.
Iia all which particulars the faid complainant dolh
except to the faid Maftef's faid report, and
humbly appeals therefrom to the judgment of this
honourable court (/).]
(;) Hind. 279.
r ( 210 )
CHAPTER THE THIRTY-SIXTH,
Demurrer*
rTT^HENEVER any ground of defence is apparent on the
** bill itfelf, either from matter contained in it, or from
defect in its frame, or in the cafe made by it, the proper mode
of defence is by demurrer (#).]
A demurrer is the allegation of the defendant, which ad-
mitting the matters of fac\ or fome of them alledged by the
plaintiff in his bill to be true, mews that as they are fet forth'
by the plaintiff himfelf, they are inefficient for him to proceed
upon, or to oblige the defendant to make anfwer unto ; [or
that for fome reafon apparent on the face of the bill, or becaufe
©f the omiflion of fome matter which ought to be contained
therein, or for want of fome cireumftances which ought to be
attendant thereon, the defendant ought not to be compelled to
anfwer (b) ;] and therefore it demands the judgment of the
court, whether the defendant mall be compelled to make
anfwer, to the plaintiff's bill, or to fome certain part thereof.
[The principal grounds of objection to the relief fought by
an original bill which can appear on the bill itfelf, and may
therefore be taken advantage of by demurrer are, firft, that the
fubjecl of the fuit is not within the jurifdiction of a court of
equity •, fecondly, that fome other court of equity has- the pra-
per jurifdicYion ; thirdly, that the plaintiff is not entitled to fue
by reafon of fome perfonal difability ■> fourthly, that he has no
intereft in the fubjecl:, or no title to inftitute a fuit concerning
it ; fifthly, that he has no right to call on the defendant con-
cerning the fubjecl; of the fuit ; fixthly, that the defendant has
not that intereft in the fubjecl which can make him liable to the
claims of the plaintiff j feventhly, that for fome reafon founded
on the fubftance of the cafe, the plaintiff is not entitled to the
relief he prays ; eighthly, the deficiency of the bill to anfwer the
purpofe of complete juftice ;* and ninthly, the impropriety of
confounding diftin£t fubjects in the fame fuit, or of unnecef-
farily multiplying fuits. Mitf. 102.]
[The objections to a bill which are caufes of demurrer to
difcQvcrj only are, firft* that the cafe made by the bill is not
(a) Mitf. 99. {b) Mitf. 99.
t fuch
**fc
DEMURRER.' 2i r
fuch in which a court of equity fuTumcs a jurifdiftion to com-
pel a difcovery; fecondly, that the plaintiff has no intereft in
the fubjeft, or no intereft which entitles him to call on the de-
fendant for a difcovery ; thirdly, that tlie defendant has no
intereft in the fubjeft to entitle the plaintiff to inftitute a fuit
againft him even for the purpofe of difcovery ; fourthly, that
there is not that privity of title between them which gives the
plaintiff a right to the difcovery required by his bill; fifthly,
that tJi* difcovery if obtained cannot be material ; fixthly, that
the fituation of the defendant renders it improper for a court of
equity to compel a difcovery. Mitf. 149.]
[The principal ends of a demurrer are to avoid a difcovery,
which maybe prejudicial to the defendant, to cover a defective
title, or to pfevent unneceffary expence. If no one of thefe
ends is obtained, there is little ufc in a demurrer. For in
general if a demurrer would hold to a bill, the court, though
the defendant anfwers, will not grant relief upon hearing the
caufe {d).~\
[A demurrer mud be figned by counfel, but is put in
without oath, as it afferts no fa ft, and relied merely upon
matter apparent on the face of the bill. It is therefore con-
fidered that the defendant may by advice of counfel, upon the
fight of the bill only, be enabled to demur thereto. And for
this reafon, it is always made the fpecial condition of an order
giving the defendant time to demur, plead, or anfwer to the
plaintiff's bill, that he fhall not demur alone (e).~\
[As a demurrer lelies merely upon matter apparent on the
face of the bill, fo much of the bill as the demurrer extends to
is taken for true ; thus, if a demurrer is to the whole bill (f)t
the whole is taken for true ; if it is to any particular difcovery,
the matter fought to be difcovered and to which the demurrer
extends, is taken to be as ftated in the bill. And if the de-
fendant demurs to relief only, the whole cafe made by the bill
to ground the relief prayed is confidered as true. A demurrer
is therefore always preceded by a proteftation againft the truth
of the matters contained in the bill ; a practice borrowed from
the common law, and probably intended to avoid conclufion in
another fuit (V).]
[A demurrer muft exprefs the feveral caufes of demurrer (h) t
() Ord.Can.p7. Cary's R- 3 ^.
"3-
>- 1 > -■.
iiz DEMURRER.
and in cafe the demurrer does not go to the whole bill, it mufi:
clearly exprefs the particular parts of the bill demurred to (:)Q
Where a defendant has demurred, he may affign another
caufe of demurrer, at the bar, paying cofts ; and if fuch caufe-
of demurrer is over ruled, he ought to pay double cofts j but
where a defendant has pleaded, and there is no demurrer in
court, he cannot demur at the bar, though he would pay
cofts (k).
If any caufe of demurrer {hall arife, and be infilled ontupon
debating the demurrer, more than is particularly alledged, yet
the defendant fhali pay the ordinary cofts of over-ruling a de-
murrer, if thefe caufes, which are particularly alledged, be dif-
allowed, although the bill in refpec-t of that particular fo
newly alledged fhall be difmiffed by the court.
[But it is not now the practice that the defendant Ihould
pay the cofts of the demurrer on record being over-ruled, when
a demurrer at the bar is allowed, but he is not to receive his
cofts, and what is faid in i Vern. 78. is not law (/) .]
[A demurrer cannot be good in part and bad in part, but
muft ftand or fall together (m) .]
A defendant may demur as to part, plead as to other part,
anfwer to the refidue.
[If a demurrer is general to the whole bill, and there is any
part either as to the relief or the difcovery to which the defend-
ant ought to put in an anfwer, it is generally confidered that
the demurrer being entire, muft be over-ruled. But there are
inftances of allowing a demurrer in part (n). And a de-
fendant may put in feparate demurrers to feparate and diftin£t
parts of a bill, for feparate and diftincT: caufes (0). For the
fame ground of demurrer frequently will not apply to different
parts of a bill, though the whole is liable to demurrer ; and
in this cafe one demurrer may be over-ruled upon argument,
and another allowed (/>).]
[An augmentative demurrer is bad (q). Where there is an
argument in the body of a demurrer, fuch as, "in or about the
year 1770, ivhich is upwards of 20 years before the bill filed y " it
is a fpeaking demurrer, and bad (r).]
[The ground of demurrer muft be a fhert point, upon
(j) 2 Vef. 451. Mitf. 173. («), 2 Eq. Ca. Abr. 759.
(6) 1 Vern. 78. 3 Brer. P.C. 538. fed qua.
V) 3PW.37T. (0) 1 Atk.544.
(m) 3 Atk. 3S8. 1 Atk.450. (p) 3 P.W. [48. Mitf. 173.
and the cafes cited in the note of (q) 2, Vef. J. 83.
Sander's edit, of Atk. 2 Vol. 450. ( r ) 4 Bro. C.C. 254.
4 which
DEMURRER. 2r 3
•which it is clear the bill would be difmifled with colls at th e
hearing (j).
[A defendant cannot demur and plead, or demur and anfwer
to the fame part of the bill •, for the pica or anfwer over-rules
the demurrer (/).]
[The bill ftated fequeflration for want of an anfwer, and
prayed a difcovery and account of all money or other property
of the defendant in the original caufe in the hands of the de-
fendants (who were bankers) at the time of the fervice of the
fequeflration, or frnce •, upon demurrer as to the money, and
anfwer as to the reft of the bill j the Lord Chancellor con -
fulered the anfwer over-ruling the demurrer, as the defendants
had no more bufmefs to anfwer one queftion than the ether ;
they might have had bank notes depofited in their hands («).]
[To a bill for difcovery and relief in a cafe, where the plain-
tiff was entitled to a difcovery only, the defendant demurred
generally. Lord Thurlow allowed the demurrer, faying that
it was incumbent on the plaintiff to adapt his bill to what he
had a right to pray (w).]
[But where the plaintiff is entitled to the difcovery he feeks
in fupport of an action, prayer for general relief, or for relief,
that is confequential to the prayer for the difcovery as an in-
junction, will not fuftain a general demurrer (*).]
[The rule, that if the plaintiff is net entitled to relief,
though entitled to difcovery, general demurrer holds, does not
prevent the defendant from demurring to the relief, and anfwer*
ing as to the difcovery (v).]
Demurrer as to relief on a bill by Lord of a Manor to recover
a fme on admittance to a copyhold and arrears of quit-rent,
fuggeftirig ' that by moans of unity of the poffeflion of thefe
lands with others, he knew not where to diftrain, defendant
anfwered as to the difcovery ; and demurrer to relief was
allowed good (3).]
A defendant may demur to any part of the bill, fo as the
demurrer be filed before the rule to anfwer be out, and before
he has obtained an order for time to anfwer ; but after fuch
order obtained to put in his anfwer only, he cannot demur,
unlefs he obtains an order for that purpofe.
Where the replication contained new matter not in the bill
nor arifmg from the anfwer, but known to the plaintiff at th e
(j) 3 Vef. 253. 4Vef. 185. 6 Vef. 686. 9 Vef. ;6.
(j) 3 P.W. 80. 2 Atk. 2S2. 10 Vef. 554.
(«) 3 Vef. 735. (x) 2 Vef. J. 514.
(w) 2 Bro. C.C. 319. 2 Bro. (y) 8 Vef. 2.
^ C. 380. 4 Bro. C.C. 4S0. (*) 3 P.W, 14s,
'" P 3 time
2i 4 DEMURRER.
time the bill was exhibited, defendant pleaded, and demurred,
and allowed (a).
No demurrer to an anfwer ; but where an a:\fwcr tends to
draw a re-examination of a matter (on a bill of revivor) already
contained within the decree ; the court muft be moved for an
order to reftrain an examination of all matters formerly exa-
mined and fettled (b).
Demurrer, for that the plaintiff's equity was grounded on
payment of cs. which is not fufheient for a decree [c).
I'The court will not entertain a bill under the value of io 1.
or 40s. per annum -in land, except in cafe of charity (d). And
though the defendant does not demur, if it appears on the
hearing, that if an account be taken, the balance due to the
plaintiff will not amount to the fum of iol, the court will dif-
rnifs the bill with colls (e).~]
[In a c .fe of fraud, the court will retain the bill, however
fmall may be the value ( f) ."]
[Sill for a fum beneath the dignity of the court, may be dif-
miffed on motion as well as on demurrer (g).~\
[If a bill be brought to eftablifh a right, the court will not
difmifs it, although the fum demanded be very fmall ; did. by
Lord Camden on a bill brought for fix fhilhngs claimed to be
due as an Eafter offering. Vide Griffith v/"Lewis, 4 Bro. P.C.
314. a decree for nine fhilhngs, tithes, affirmed.]
[It is moll ufual, where a bill is not for a fmall fum not to
demur, but to move that the bill maybe difinified (/■>).]
[A demurrer not coupled with a plea or anfwer muft be
filed within eight days, exclufive of the day of appearance, or
before an order for time be obtained •, the court never indulging
the defendant with time to demur alone (z').]
A demurrer cannot be regularly filed under an order for
time, it being the condition of every order for time, that the
defendant fhall not demur alone (k)..
[A defendant mult take advantage of a defeel in form in the
plaintiff's bill by demurrer; it is too late to objeel after he
has anfwered (/1.]
[Demurrer may be filed after time for anfwering be out,
provided it is filed before procefs of contempt iffues (?»)•]
la) 1 Cha. Ca. Z59. (g) Bunb. 17*
(/)) 1 Cha.'Ca. 56. {h) Mitf. l©2. no^'
(c) Finch. 253. (*] Hind. 23.
(d) l Eq Ca. Abr. 75. {&) 2 P.W. 464,
(e) 7th June 1753. MS. (/) 2 Atk. 1.^7.
2 Aik 23 (???) 3 Bro. C,C 372,
(/) Bunb. 17.
It
DEMURRER. 21 e
h i'eems, if a defendant be in contempt to an attachment,
and tenders or pays the coils of the contempt, he may file his
demurrer ; but after a contempt duly profccuted to an attach-
ment with proclamations returned, no plea or demurrer ihallbe
admitted, anlefs upon motion and affidavit fatisfying the court
of the caufe of delay {n) .
[The defendant fometimes files his demurrer within the
eight days ; but in general he waits until the plaintiff's clerk
in court calls upon him for his anfwer, and then files the
•demurrer immediately (o).]
[If a demurrer be not by the defendant within eight days
after the filing, entered with the Regiiter in order to be argued,
it is over-ruled of courfe ; and the plaintiff-' may take out pro-
cefs for forty fhillings cofts, and to make a better anfwer (/>).]
[The draught of the demurrer being fettled and figned by -
counfel, atranfeript thereof muft be fairly ingroffed on parch-
ment with an half crown ftamp, and brought to the defendant's
clerk in court to be filed : within eight days after the filing,
it muft be entered *, which is done by the defendant's clerk in
court, leaving a note in the following form with the Regifter,
paying at the fame time is. ; and formerly a certificate from
the Six Clerk of the pleadings being filed was produced ;
but it has of late years been difpenied with. Ord. Cane. i8c.
Elley -j
v. i. Enter demurrer.
Edwards J
loth June 1703. Hind, clerk. Vide Hind. 212.]
[And fo if a demurrer be accompanied with a plea or anfwer,
•or both, the demurrer and plea mufl be entered, or they are
over-ruled of courfe (q).~\
[Either fide may by leaving a petition at the Chancellor's
Secretary's office, apply to the Lord Chancellor for an order
to fet down the demurrer to be argued. Nodepofit is requifite,,
The petition as anfwered (for which 20s. is to be paid the
fecretary) being left with 4s. 6d. at the Register's oifice to
draw up and pafs the order, and is. 6d. for entering, and alfo
1 s. paid for fetting the demurrer down, a copy of the
order fo palled and entered muft be ferved upon the oppofite
clerk in court, by leaving the copy and fhewing the original
order to the clerk or his agent at his feat, two days before the
day for hearing (r).]
(») 0rd - Cane. 99. ( q ) Hind. 213.
(0) Hind. 211. (,.) Hind. 213.
(?) Ord. Cane. 97 & 185,
P4 [No
216 DEMURRER.
[No demurrer is to be fet down for hearing on any
certain day, except the order for fetting down the fame be
brought to the Regifter to be entered at leaft two dr.ys
before the day appointed for hearing fuch demurrer ; and
after the paper of demurrers and pleas is made out and
fet up in the Regifter office, no alteration is to be made
therein (/).]
If a demurrer on arguing be over-ruled, the defendant pays
five pounds cofts to the plaintiff; but if it be allowed, the
plaintiffs pays five pounds to the defendant. And after that,
the defendant may give notice and move that the bill may be
difmiffed with cofts to be taxed.
If the defendant put in a demurrer, which is apprehended
will hold good, it is the beft way for the plaintiff, if he has a
mind to drop proceedings to move and obtain an order to dif-
mifs his bill, with cofts to be taxed by a Mafter ; which cofts
being paid to the defendant, there is an end of the fuit. But no
plaintiff can difmifs his bill, but on payment of cofts to be
taxed. But if the plaintiff has equity on his fide, and intends to
proceed, he may apply to the court either by motion or petition
to amend his bdl on payment of 20s. cofts ; but this is to be
done before the demurrer is fet down to be argued ; otherwife
the plaintiff muft pay the defendant the cofts he has been at in
getting an order to let down the demurrer to be argued, and
aos. befides, before he can amend ; and if argued and allowed,
five pounds. But in cafe the demurrer will not hold good,
then the plaintiff may petition to fet down the demurrer, and
prepare briefs, &c.
[A demurrer fet down for argument being fubmitted to, and
the bill amended ; 5 1. cofts were allowed (/).]
[On a motion on behalf of the defendants for liberty
to withdraw a demurrer, which was let down to be
argued, the court made the order on payment of cofts to
be taxed («).]
[Where a demurrer leaves any part of a bill untouched,
the whole may be amended notwithftanding the allowance
of the demurrer. But after the demurrer to the whole
of a bill has been argued and allowed, the bill is out
of court, and therefore cannot be regularly amended.
To avoid this confequence, the court has fometimes, inftcad
of deciding upon the demurrer, given the plaintiff liberty to
amend his bill, paying the cofts incurred by the defendant j
(s) Ord. Cane. 52. Hind, 213, (a) 6 Vef. j86.
\t) 9 Vef. Z2i.
and
DEMURRER. 21-7
and this has been frequently done in the cafe of a demurrer for
want of parties (•zi').]
[Though ftrictly by a demurrer to the whole bill, the bill is
out of court, yet even after a bill difmiffed by order, the caufe
has been fet on foot again (*).]
[After a demurrer to the whole bill over-ruled, the de-
fendant may put in a demurrer lefs extended, but sot without
leave of the court (v).
[w\ 2 Cha. Ca. 197. Mitf. (*) I iVef. 68.
174. 00 nVcf.e3.
( 213 )
CHiAPTER THE THIRTY -SEVENTH,
Plea.
'/HEN an objection to a bill is not apparent on the bill
^ itfelf, if the defendant means to take advantage of it, he
ought to fhew to the court the matter which creates the ob-
jection, either by anfwer or by plea (a).~\
A plea in equity is a fpecial matter pleaded by a defendant
to a bill, or to fome part thereof, fhewing and relying upon
one or more facts fet forth in the defendant's plea, as a caule
why the plaintiff ought not to be relieved in fome matter con-
tained in his bill in bar to any relief or difcovery fought after
and prayed by the bill. It is nothing more than a fpecial an-
fwer ihewing or relying on one or more things, as a caufe why
the fuit mould either be difmifTed or barred.
The bill was for a fum of money due to the plaintiff 's wife.
The defendant (who was her brother) pleaded a releafe made
by her, upon fecuring to her another fum by bond, which
releafe was executed by her as a fingle woman, me living as
fuch at that time in the houfe of the defendant ^ and moreover
that after the marriage came to be known, the hufband (the
plaintiff) had accepted interefl, and thereby ratified her act.
Per Lord Chancellor Hardwicke : Perhaps this may be a good
defence, but it. is not proper for a plea. A plea is proper,
when the matter of the defence can be reduced to a fingle
point, which will bar the plaintiff's demand ; but then it is of
ufe, becaufe by having the judgment of the court upon that
point, the parties are laved the expence of an examination ;
But where there go many circumftances to the defence, as in
this cafe it is of no fort of ufe, becaufe there muft be an exa-
mination afterwards, whether thofe circumftances be true or
falfe : And it would be alfo highly improper that the court
fnould'firft give judgment upon the circumftances, and that an
examination mould come afterwards (b).
[Pleas to original bills may be considered under the two
(a) Mitf. 177. fourth and laft feal Lincoln's lna
ip) Auguit 1739. after the Hall. 1 Atk. 54.
heads
PLEA. 219
heads of plea& to relief and pleas to difc&very only \ and firft
with refpecl to the former.]
[Pleas have generally been confidered as of three fortr, ; to
the jurifdiclion of the court ; the perfon of the plaintiff or
defendant ; and in bar of the fuit (c).]
[Though the fubjeel of a fuit may be within the jurifdiclion
of a court of equity t yet if the court of Chancery is not the pro-
per jurifdiclion, the defendant may plead the matter which
deprives the court of jurifdiclion, and {hew to what court the
jurifdiclon belongs (d), and upon this ground may demand
the judgment of the court, whether he (hall be compelled to an-
fwer the bill (e). Plea* of this nature arife principally where
the fuit is for land within a county palatine (/), or where the
defendant claims the privileges of an univerfity (g)> or other
particular jurifdiclion (£).]
[The court of Chancery being a fuperior court of general
jurifdiclion ; nothing (hail be intended to be out of its jurif-
diclion, which is not fhewn to be fo (z). It is requifite there-
fore in a plea to the jurifdiclion of the court to alledge, that
the court has not jurifdiclion of the fubjeel, and to {hew by
what means it is deprived of jurifdiclion. It is likewife necef-
fary to {hew what court has jurifdiclion (k). If the plea does
not properly fet forth theie particulars (/), it is bad in point of
form (///).]
[It is impoflible to plead to the jurifdiclion of any particular
court, without giving another remedy in fome other court.
A plea to the jurifdiclion of all courts is abfurd and repug-
nant in terms (//) ]
If a bill be brought for an account of the profits of
mines, and the defendant pleads a fpecial act of parliament
which gives an exclufive jurifdiclion of all matters arifing
within the mines to the courts of A., but does not aver there
is a court of equity there, the plea will be over-ruled (0).
[A perfon outlawed is difabled from fuing in a court of
jultice, and if a bill is tiled in his name the defendant may
plead the outlawry. The record of the outlawry or the capias
(c) Mitf. 1:6. (/>)• Mitf. 182 & 183.
(). A plea of outlawry in a fuit for the
fame duty or thing for which relief is fought by the bill, is in-
fufftcient according to the rule of law, and fhall be difallowed
of courfe, as put in for delay. Otherwife a plea of outlawry
is always a good plea, lb long as the outlawry remains in
force ( q) ; but if that is reverfed, the plaintiff upon payment
of coils may fue out frefh procefs againft the defendant, and
compel him to anfwer the bill (r). Outlawry in a plaintiff,
executor, ov adminiftraior, cannot be pleaded ; for he fues in
aider droit (/). It is equally insufficient, ifalledged in difubility
of a perfon named in a bill as the next friend of an infant
plaintiff (t), or in an information as a relator (//).]
[The defendant may plead that the plaintiff is excommuni-
cated ; which muft be certified by the ordinary, either by
letters, patent containing a pofitive affirmation that the plaintiff
{lands excommunicated, and for what ; or by letters teftimo-
nial reciting " quodferutatis regifteriis invenitur, &c." Either of
theft certificates muft be fub Jigillo, and fo pleaded (>). Ex-
communication is a good plea to an executor or adminiftrator,
though they fue in auter droit (.v) j but not to the next friend of
an infant (y). The plaintiff purchasing letters of abfolution,
may fue out freih procefs and compel the defendant to anfwev
the bill (z).] . n r
[Byftat. 3. Jac. 1. c. 5. i. 11. every popifh recufant con-
vert is in many cafes 'difabled to fue, in the fame manner as a
perfon excommunicated. The inllances of a plea of conviction
of recufancy have probably been rare, as no traces of any
occur in the books of reports {a).~\
[A plea that the plaintiff is difabled from fuing, being at-
tainted, is equally rare (£).]
[There is little more to be found in the books upon the fub-
je£l of a plea that the plaintiff is an alien (c). An alien, who
is not an alien enemy, is under no difability of fuing for any
(p) Toth. 5J .. Praft. Reg.276. (x) Co. Litt. 134. 4 Bac.
(o) Ord. Cha.97. Abr. 36. Wy. Praft. Reg. 327.
(,) Ord. Cha. 97. (y) Wy. Praft. Reg. 327.
(s) 1 Vern 184. Wy. Pratt. (*) Mitf. 187.
Reg. 327. (a) Mitf. 187.
(t) Wy. Fraft Reg. 327. (b) Mitf. 187.
(«) Mitf. 186. Sed vide Pre. (c) 2 Atk. 399. 2 Vin. Abr.
Cha. 13. 274. Wy. Pratt. Reg. 327.
(w) Wy. Pracl. Reg. 327. Raflal's Entries 252.
perfonal
FLEA. 221
perfonal demand (d). But an alien enemy is not capable of
filing (e).]
[A plea that the plaintiff is not the perfen he pretends to b .
or does not fuftain tlie character he ... es, and therefore is not
entitled to fue as fueh, though a negative plea is good in abate-
ment of the fuit. JVy. PracJ. Reg. 326. As where a plaintiff
entitled himfelf as administrator, and the defendant pleaded
that he was not administrator, i Vern. 472. And where a
plaintiff entitled himfelf as adminiftrator of an intestate, and
the defendant pleaded that the fuppofed inteftate was living, and
the plea was allowed. Mit . 189.]
[But Lord Thurlow held that the plea that the plaintiff is
not the heir, was a bad plea, 2 Bro. C.C. 143.]
[A plea that the defendant is not the perfon he is alledged to
be, or does not fuftain the character he is alledged to bear, is
mentioned as a plea which may be fupported (f). It feems
to have been confidered as more convenient for a defendant
under thefe circumstances, to put in an anfwer alledging the,
mistake in the bill, and praying the judgment of the court
whether he (hould be compelled further to anfwer the bill (g).~]
[Pleas in bar are, first, that the fubject of the fuit is not
within the jurifdiction of a court of equity ; fecondly, that the
plaintiff has no interest in the fubject, or no right to institute a
fuit concerning it j thirdly, that he has no right to call on the
defendant concerning it •, fourthly, that the defendant has not
that interest in the fubject which can make him liable to the
demands of the plaintiff j fifthly, that for fome reafon founded
on the fubltance of the cafe the plaintiff is not entitled to the
relief he prays ; sixthly, the deficiency of the bill to anfwer
the purpofes of complete justice may alfo be fnewn by plea,
which may be confidered as in bar of the fuit, though perhaps a.
temporary bar only ; feventhly, the impropriety of unneceflarily
multiplying fuits may be the fubject: of plea which is alfo in
bar of the fuit (/.>).]
[It fhould feem that a plea of the matter neceffary to fhew
that the court has not jurifdiction of the fubject, though per*
haps unavoidably a negative plea would hold. Thus, if the
•jurifdiction was attempted to be founded on the Jofs of an
instrument where, if the defect arising from this fuppofed
accident had not happened, the courts of ordinary jurifdiction
(d) 1 Atk. 51. Vide Mitf. iSS, (g) Cary's Rep.61. Wy.Prach
(e) Anton v. Fi{her, Dougl. Reg. 327. Mitf. 192.
626. in note. (Z>) Mitf. 1 y 3 & 179.
(/) Mitf. 192,
could
2 2 a PLEA.
could completely decide upon the fubject, perhaps a plea
fhewing the exiftence of the inftrument, and that it was in the
power of the plaintiff to obtain a production of it, ought to
be allowed, although inflances of this fort of plea may not
occur (*).]
[An inftance of the fecond fort of pleas in bar is, where a
plaintiff claims as a purchafer of a real eftate, and the defend-
ant pleads that he was a papift, and incapable by taking pur-
chafe (k) ; or if a plaintiff claims property under a title accrued
previous to conviction of himfeif, or of a perfon under whom
he claims of fome offence which occafioned a forfeiture (/),
or previous to a bankruptcy •, or any other defect in the title (m)
of the plaintiff to the matter contained by the bill. A plea of
conviction of any offence which occafions forfeiture, as man-
flaughter, muff be pleaded with equal ftrictnefs as a plea of the
fame nature at common law (n). But if a plea goes to fhew
that no title was ever veiled in the plaintiff, though for that
purpofe it ftates an offence committed, conviction of the offence
is not effential to the plea, and the fame ftrictnefs is not re-
quired as in cafe of forfeiture () .]
[Pleas in bar of matters recorded, or as of record in the
court itfelf, or fome other court of equity, may be, firft, a
decree or order of the court by which the rights of the parties
are already determined (q), or another bill for the fame caufe
difmiffed (r) •, fecondly, another fuit depending in the court,
or in any other court of equity between the fame parties for
the fame caufe (s),~]
[A decree determining the rights of the parties, and figned
and inrolled, may be pleaded to a new bill for the fame
matter (t). Upon a plea of this nature, fo much of the former
(i) Mitf. 1 3 r. (o) Mitf. 1 90.
(i)' See however iS Geo. 3. (p) 1 Vef. 426.
e. 60. by which this incapacity is (q) 3 Atk. 626.
removed under certain circum- (r) 1 Vern. 310.
ftances. (*) 3 Atk. 587. 590. Mitf.
(/) 2 Atk. 399. 194-
(«) Gilb.228. (0 3 Atk. 626V
(« j 2 Atk. ^
PLEA. 223
kill and anfwer mud be fet forth, as it is neceffary to fhew that
the fame point was then in iffue (iv). A decree or order dif-
miifmg a former bill for the fame matter, may be pleaded in
bar to a new bill (.v), if the difmiflion was upon hearing,
and was not in terms directed to be without prejudi
But an order ol difmiflion is a bar only, where the court de-
termines that the plaintiff had no title to the relief fought by
his bill; and therefore an order difmiiling a bill for want of
profecution is not a bar to another bill (:r.).]
[A decree mult be figned and inrolled, or it cannot be
pleaded in bar of a fuit (a) ; though it may be infilled on by
way of anfwer (/;).]
[Another ftrit depending in the fame or another court of
equity for the fame caufe (V), is a good plea. It muft aver
that the fecond fuit is for the fame matter as the fir ft ; and
therefore a plea which did not exprefslv aver this, though it
itated the matter tending to fhew it, was confidered as bad {d).
The plea was alio to aver that there have been proceedings in
the fuit, as appearance or procefs requiring appearance at the
leaft (c) . It has been held that a pofttlve averment that the
former fuit is depending is not neeeffary (f). And if the
plaintiff fets down the plea to be argued, he admits the
truth of the plea, that a former fuit for the fame matter is
depending, and the plea therefore muft be allowed (g) t uniefs
it is defective in point of form (h), A plea of this kind is not
put in on oath (*).]
When a defendant pleads the pendancy of a former fuit iri
another court. for the fame matter, the plaintiff may and Ought
to obtain a reference to the Mafter (I), and to procure his
report that the former fuit is not in the fame matters, and in
that cafe the plea is to be over-ruled j or the "efendant may bring-
on his plea ; and if it is well pleaded, v,nd both fuits appear
to be for the fame matter, the plea is always allowed.
[If the plaintiff does not procure fuch reference to the Matter
within a month, the bill will be difmiffed '
When a reference is made to a Mailer of a plea of pendanev
O) 2 Atk. 603. 2 Vef. -77. (d) Mitf. toS.
(x) 1 Vera. 3 10. 1 Bro. PC. f>) 1 Eq. Ca Abr. 39.
281. ( f ) 1 Vera . 3 5 2 . J} J vide
(r) 1 Cha. Ca. ilK. ard. 160.
(2) 1 Atk. 5 -9. "Mitf. 196. <;■) 1 Vera. 333.
(a) 3 Atk. 8c 9 . (/,) Micf. 19S.
(£) 2 Vef. 577. Mitf. 19S. (.') 1 Vern; 332.
(c) Ord. in Cha. 98, 1 Cha. {.(.) Ord in Cha. 98.
Ca. 24 1. 3 Atk. 587. c . ; , Vef. J. 672.
Of
224 PLEA.
of a former bill depending for the fame matter, if the Mafter
reports that both bills are for the fame matter, the plea fhall be
allowed, and the party is entitled to cofts. The plea cannot
be let down to be argued ; for then there would be two dilato-
ries ; but the plea is ipfo faEto over-ruled ; and thereupon the
party takes out ■zfubpeena for 5I. cofts in like manner -as upon
the arguing of a plea. But in a cafe (/«), where the Mailer made
a fpecial report that the former bill of revivor was brought for
the fame matter and by the fame plaintiff; but by a different
defcription, as being in a different right, therefore tht- court
determined it •, and the rule as to the coits on the plea varied.
[Pleas in bar, of matters of record, or of matters in the
nature of matters of record, in fome court not being a court of
equity, may be, firft, a fine ; fecondly, a recovery ; thirdly, a
judgment at law, or fentence of fome other court («)•]
[When a fine and non-claim are fet up as a bar to a claim
of truft, by a perfon claiming under the fame title, it is not
fufficient to aver that at the time the fine was levied, the feller
of the eftate being feized or pretending te be fe : zed, conveyed ;
but it is necefTary to aver that the feller was actually feized (0).
It is not, indeed, requifite to aver, that the feller was feized in
fee ; an averment that he was feized ut de llbero tenemento t and
being fo feized, a fine was levied, will be fufficient (/>).]
[To a charge in a bill that A. died feized in fee of eftates in
D., or elfewhere, plea of fme of all the eftates charged in the
bill, and of which A. died feized in fee is fufficient, without
averment that they were in D., and none elfewhere. 1 Vef. J.
[To a bill to fet afide a judgment as obtained againft con-
fcience, the defendant may plead the verdict: and judgment in
bar (q). If there is any charge of fraud or other circumftances
{hewn as a ground for relief, the judgment or fentence cannot
be pleaded ; unlefs the fraud or other circumftance, the ground
uDon which the judgment or fentence is fought to be impeached,
be denied, and thus put in iffue by the plea, and the plea fup-
. ported by a full anfwer to the charge in the bill (r).]
[Pleas in bar of matters in pais only, are principally, firft, a
ftated account ; fecondly, an award; thirdly, a releafe ;
fourthly, a will or conveyance ; fifthly, a plea of any ftatute
which, may be a bar to the plaintiff's demand (j).]
[A plea of a ftated account muft fhew that the account was
(m) Barnard. 84. (?) 3 ).] #
[A plea of the ltatute of limitations not being futEciently
fupported by the aiif.ver as negativing the facts itated in the-
bill to take the cafe out of the ftatute, was ordered to ftand-
for an anfwer with liberty to except (q).]
[Where the demand is of any thing executory, as a note for
payment of an annuity, or by inftalments, the defendant muft.
aver that the caufe of ad ion . r), has not accrued within
fix years 5 becaufe the ftatute bars only as to what was a&ually-
due fix years before the action brought (*).]
[The want of averment in a plea of the ftatute o£ limitations-
that the money was not received within fix years was fupplied in
fubltance by the averment, that the caufe of action, if any*
arofe above fix years before the bill tiled (f).]
[Upon a bill for difcovery of a title, charging fraud and
praying poffeffion, the ftatute of limitations alone is not a gocd
plea to the difcovery •, for the defendant mult ariwer to the
charge of fraud (?e).
(Jj) Pre. Cha. 407. S3 3- 2 & (") 3 P-"^- r 4J<
W. 770! (*>) 3 Atk - 7°- '
(i) Mitf. 212. (/) Mitf. 21 v
{&) 1 Bro. G.C. 404. (?) 6 Vef. 5S6.
(/) 21 Jac. r. c. 16. (r) 2 Stra. 1291.
(m) 3 P.W. 309. 2 Atk. 39*. (s) 3 Atk - 7- Mitf. 21 j.-
Giib. on Cha. or. 3 Bro. F. C. (/) 9 Vef. 71.
30;. ' («0 3P.W.£8 7 .
O
PLEA. 2Z-]
[Iri like manner any other ftatute which may be a bar to the
demands of die plaintiff, may be pleaded, with the averment
necefl'ary to bring the cafe of the defendant within the fix years,
and to avoid any equity which may be fct up againft the bar
created by the ftatute (x).]
[Where the defendant claims under a purchafe or mortgage
for a valuable confideration without notice of the plaintiff's
title, he may plead it in bar of the fuit (v). Such a plea muft
aver that the perfon who conveyed or mortgaged to the de-
fendant, was feized in fee, or pretended to be feized (2), and
was in poffeffion (a), if the conveyance purported an immediate
transfer of poffeffion at the time when he executed the pur-
chafe or mortgage deed (£).]
[In a plea of title derived from one having a particular
eftate and not in poffeffion ; it mult be fet out, how the perfon
became entitled (c).~\
The plea muft likewife aver a conveyance, and not articles
merely («*). It muft aver the confideration and aclual pay-
ment of it ; a confideration fecured to be paid is not fuf-
ficient («?). The plea muft alfo deny notice of the plaintiff's
title to a claim [f ) previous to the execution of the deeds and
payment of the confideration (g) ; and the notice fo denied
muft be notice of the exiftence of the plaintiff's title, and not
merely notice of the exiftence of a perfon who could claim
under that title (h).
Where the bill charges notice before the defendant took his
conveyance, and the defendant by . . y of anfwer denies the
notice at the time of his purchafe or contract, and pleads he i.>
a purchafer, this plea is naught, being founded upon the
anfwer, which denies only notice at tne time of the pur-
chafe, which may be underftood of the contract and not of the
execution of the conveyances ; and if there was any notiee
before the conveyance executed, it would charge the de-
fendant (i).
[Plea that the defendant's teftatrix had neither conftrucYive
nor actual notice of plaintiff's title, not denying the facts
Hated in the plaintiff's bill, from which the conftruclive
notice was to be deduced, was over-ruled ^).]
to
Mitf. 2T4.
to
3 Atk.
3°4-
814.
00
2 Atk. 397.
630.
2 Vent.
(/)
1 Ven
1. 179
361.
U)
1 Cha
. Ca,
34-
a Atk*
(*)
3 P.W. 281
631.
3 Atk.
3°4-
(«)
1 Vern. 246,
(*)
1 Atk
.522.
(*)
3 P.W. 281.
Mitf.
215.
(?)
l C'aa
Ca. 3.
4-
(<•)
Ambl. 431.
to
4 Bio.
C.C.
322.
2 Vef. J.
to
3 P.W. 281,
Qw
187.
2
If
328 PLEA.
[If particular inflances of notice or cijcumftances of fraud
are charged they muft be denied as fpecially and particularly
as charged in the bill (/). The fpecial and particular denial of
notice or fraud muft be by way of anfwer, that the plaintiff
may beat liberty to except to its fufficiency (;«). But notice
and fraud muft alfo be denied generally, by way of averment
in the plea ; otherwife the fact of notice or of fraud will not be
in ifiite («).]
[A widow, defendant to a fuit brought by any perfon claim-
ing under her hufband, to difcover her title to lands of which
fhe is in poffeXion as her jointure, may plead her fettlement in
bar to any difcovery ; unlefs the plaintiff offers (0), and is able
to confirm her jointure. Bl: a plea of this nature muft fet
forth the fettlement, and the lands comprized in it, with fuf-
ficient certainty (p).]
[In pleading there muft be in general the fame ftri£lnefs in
equity as at law (q) ; at leaft in matter of fubftance (r) . A
plea in bar muft follow the bill, and not evade it, or miftake
the fubjec~t. of it (/)*. If a plea goes not to the whole bill, it
muft exprefs to what part of the bill the defendant pleads ;
and therefore a plea to fuch parts of the bill as are not an-
fwered, muft be over-ruled as too general (/). So if the parts
of the bill to which the plea extends are not clearly and precifely
exprefTed : as if tire plea is general, with an exception of matters
ai'ter-mentioned, and is accompanied by an anfwer, the plea is
Jbad (w).]
[A plea may be bad in part, and not in the whole (x), and
may accordingly be allowed in part and over-ruled in part (y).
There does not however, appear to be any cafe, in which two
defences offered by a plea have been feparated, and one allowed
as a bar. Thus, if a defendant pleads a fine and non-claim
which is a legal bar, and a purchafe for a valuable confedera-
tion without notice of the plaintiff's claim, which is an equit-
able bar : if either mould appear not to be a bar, as if the
defendant by anfwer fhould admit fa£ts amounting to notice ;
or if the plea in refpect to either part fhould be informal ; there
feems to be no cafe in which the court has feparated the two
(/) 3 Atk. 815. 2 Vef. 450. (s) Bunb. 70. 2 Atk.603.
(m) 1 Vera. 185. (/) 3 Atk. 70. Mofeley 40,
(«) 3 P.W. 95. Mitf. 216. in (tv) 2 Vef. 108. MM 233.
the note. (x) 1 Atk. 53. 2 Atk. '4..
(o) 2 Vef. 450. 155.284. 3 Atk. 589. 1 Vef.
(/>) 1 Atk. 52. 2o<;.
(?) 2 Atk. 632. (v) Mitf. 233.
(r) Mitf. 232.
4 matters
PLEA. 229
matters pleaded, and allowed one as a bar, and difaliowed the
other (z). But though a defence offered by way of plea con-
fift of a great variety of circumftances, yet if they all I
to one point, the plea may be good (a). Thus, a plea of title
deduced from the perfon under whom the plaintiff claims, may
be a good plea, though confuting ot a great variety of circum-
ftam es (/>)•]
[Plea of conveyance, fine, and non-chum, is not multifarious,
but a good plea to a bill impeaching the conveyance as not
being. for a valuable confideration (c).]
[A plea mud aver facts to which the plaintiff may reply, and
not in the nature of a demurrer, reft on facts in the bill (d).
The averments ought in general to be pofitive. In fome
cafes, indeed, a defendant has been permitted to aver accord-
ing to the beft of his knowledge and belief j as that an account
is juft and true (e) : and in all cafes of negative averments, and
of averments of facts not within the immediate knowledge of
the defendant, it may feem improper to require a pofitive
aflertion (/).]
[All the facts neceffary to render the plea a complete equit-
able bar to the cafe made by the bill, fo far as the plea extends,
that the plaintiff may take iffue upon it (g), mult be clearly
and diftinctly averred. Averments are likewife neceffary to
exclude intendments which would otherwife be made againft
the pleader ; and the averments mult be fufficient to fup-
port the plea (/>).]
[If there is any charge in the bill which is an equitable
circumftanee in the favour of the plaintiff's cafe againft the
matter pleaded •, as fraud or notice of title ; that charge muft
be, denied by way of anfwer as well as by averment in the plea.
In this cafe the anfwer muft be full and clear, or it will not
be effectual to fupport the plea (/) •, for the court will intend
the matter? fo charged againft the pleader, unlefs they are
fully and clearly denied (k). But if they are in fubfbnce fully
and clearly denied, it will be fufficient to fupport the plea,
though all the circumftances charged in the bill may not be
precifely anfwered (/).]
(a) Mitf. 233 & 234. et %'lde (/") Mitf. 2\6.
I Bro. C.C. +04. (g) Gilb. on'Cha. j8.
(a) iP.W. 72J. 3 Atk. 341. (b) 2Vef. 245. Mitf. 236.
Mitf. 255. (j) 3 Atk. 304. 815. 3 P.W.
*) WGtf. 235. 145. 3 Brol P.C 373, 374-
(c) 2B0.C.C. 274. (k) 2 Atk. 2 + i.
(,/) 3 Atk. 558. (/) 3 Bro, P.C. 373- M'tf- *37-
{e) 3 Atk. 70. Toth. 70.
0.3 • P*
230 FLEA.
[If a plea is coupled with an anfwer to any part of the bill
covered by the plea, and which confequently the defendant by
the plea declines to anfwer, the plea will upon argument be
over-ruled (*»).]
[To a bill for an account, the defendant pleaded the fhtute
of limitations as to fo much of the bill as fought an account of
any dealings and tranfaclions between A. B. (the perfon under
whom the plaintiff claimed) and the defendant in his feparate
capacity, or the defendant and his partners, and to a difcovery
touching fuch accounts and as to any relief thereon. The de-
fendant then anfwers to feveral matters relating to dealings
between A.B. and the defendant, and his partners : held that
the anfwer covered a great deal too much ; and the plea was
ordered to ftand for an anfwer with liberty to except ;«).]
[With refpect to fuch objections to a bill as are grounds of
plea to a difcovery only, they may be, firft, that the plaintiff's cafe
is not fuch as entitles a court of equity to affume a jurifdiclion
to compel a difcovery in his favour ; fecondly, that the plain-
tiff has no intereft in the fubjecT, or no intereft which entitles
him ro call on the defendant for a difcovery ; thirdly, that the
defendant has no intereft in the fubject to entitle the plaintiff
to inftitute a fuit again!! him even for the purpofe of difcovery
only •, fourthly, that the fituation of the defendant renders it
improper for a court of equity to compel a difcovery. Mitf.
222.]
A defendant cannot demur and plead to the fame part of the
bill ; for the plea over-rules the demurrer.
[Flea to a difcovery that it mav fubjecl: defendant to the
penalties of a ftatute; and alfo of articles of impeachment ex-
hibited againft hiir, is inconfiltent, one part of the plea over-
ruling the other ; and therefore bad. 2 Vef. J. 84.]
[A plea is introduced by a proteftation againft the con-
feffion of the truth of any matter contained in the bill. If the
plea is accompanied by an anfwer merely to fupport it, the
anfwer is ftated to be made for that purpofe, not waiving
the plea. If the plea is to part of a bill only, and there is
an anfwer to the reft, it is expreffed to be an anfwer to fo
much of the bill as is not before pleaded to, and is preceded by
the fame proteftation againft waiver of the plea (0) ]
[Pleas in bar of matters in pais (p) muft be upon the oath
of the defendant ; but pleas to the jurifdiction of the court, or
in difability of the perfon of the plaintiff (y), or pleas in bar of
(m) 2 Atfc. 155. (p) Wy. Pratt. Reg. 325.
<«) * Vef. 580. (2) Ord.inCha.96.
{0) Mitf. 239.
PLEA. 231
any matters of record, or of matters recorded, or a? of record
in the court itfelf, or any other court, need rot be upon
eath (;•).]
[Though it is dated by our author, that if a defendant ob-
tains further time to anfwer only, without faymg- that lie
m-ay be at liberty to plead, anfwer, or demur, he cannot put
in a plea without obtaining an order for that purpofe ; yet the
•contrary has been held ; and it now foems to be the rule, that
putting in a plea is a fufficient compliance with the order for
time to anfwer only. 2 P.W. 464. 1 Bro. C.C. 56.]
After proclamation returned, no plea or demurrer can be
put in or returned without leave of the court ; but if put in,
it will be discharged on that fuggeftion. Vide Ord. Cha. : 2 1 .
The defendant who pleads ought to be careful in the
caption thereof; for if the commifTioners return, this anfwer was
taken, without the words, the anfwer and plea of the defendant
was duly taken, and the defendant was fwom thereto upon his
corporal oath upon the holy Evangeli/ls, &c. the plea will be re-
jected, becaufe it does not thereby appear that the party was
ever fworn to the plea j but the court oftentimes indulges the
party to amend the caption, looking on it rather as a miftake
of the commifiioners, than a fault of the defendant. Vide
3 Chan. Ca. 208.
[A plea mud be entered with the 'Regifter within eight days
after it is filed (j) ;] otherwife it is over-ruled of courfe, and
the plaintiff, on the Regitlers certificate of its not being
entered, may take out afdpcena for cofts as of over-ruling a
.plea, and another fubpoena againft the defendant for making a
better anfwer : and the fame (hall not afterwards be admitted
to be fet down or debated, unlefs upon motion it fhall be
ordered by the court.]
If the defendant put in a plea, which on perufal the plain-
tiff's counfel apprehends will not hold good, then, when the
defendant hath entered it with the Regifter, and after an
order is obtained for procuring the fame to be fet down to be
argued before the Lord Chancellor, you may prepare your
briefs of the bill and plea, and get your counfel ready for
arguing.
["By order of 29th July 1689, pleas and demurrers are nop
to be entered without a certificate firft had of the filing of the
bill, plea, and demurrer (/).]
[The above rule with reipect to entering pleas with the
(r) Wy. Praa. Reg. 324. (/) Ord. inCha. l8$.
(s) 3 Bro. C.C. 372. Hind.
£22, Ord. in Cha. 97. & i8j.
Q^_4 Regifter,
23 « PLEA.
IRegifter, is intended of a plea of a matter in pais, and not of
a matter of record or recorded •, for it is the pbintifF's part to
enter thefe, if he fo likes ; elfe the defendant within eight
days after filing of the plea may take out five marks colts as in
outlawry («;).]
[A plea is entered by the clerk in court, leaving the follow-
ing note with the Regilter, and paying one {hilling. . •
Stradling"*}
v. V Enter plea.
Stiles. j
January 20th, 1780. Legh, Clerk (*).]
Where a matter is pleaded that is not of record, and the
plaintiff defires to have the opinion of the court whether allow-
ing the matter to be true, it is a fumcient bar to the fuit, it mull
be argued,
[Upon argument of the plea, it may either be allowed
{imply, or the benefit of it may be faved to the hearing, or it
may be ordered to (land for an anfwer. In the firft cafe the
plea is determined to be a full bar to fo much of the bill as it
covers, if the matter pleaded, with the averments neceffary to
fupport it, are true. If therefore a plea is allowed upon argu-
ment, or the plaintiff without argument thinks it, though good
in form and fubttance, not true in point of fa£t, he may take
iffue upon it, by which he admits it to be good in law (j),
whereupon the defendant mud make proof of the truth of his
plea by depofuions, See as in the cafe of an anfwer. If he
fails in this proof, lb that at the hearing of the caufe the plea
is held to be no bar, the plaintiff is not to lofe the benefit of
the difcovery fought by the bill (2), but the court will order
the defendant to be examined on interrogatories, to fupply the
defect (a).]
[The plaintiff admits the plea to be good in law, by replying
to it •, therefore where the defendant pleaded a purchafe for a
valuable confideration, without denying notice of the plaintiff's
title, and the plaintiff replied ; held that the plea, though
irregular, had been admitted by the replication to be good,
and that the fact of notice not being in iffue, the defendant
proving what he had pleaded, was entitled to have the bill
difmiffed (£,'.]
[If upon argument, the benefit of a plea is faved to the hear-
(iv) Wy. Pract. Reg. 330. (a) Mitf. 240. Nelf. Rep. 1 19.
(«) Hind. 222. Rep.Temp. Finch 4. 2 Vef. 247.
(j) Mitf. 240. (6) 3 P.W. 94, 95.
(a) 2 Vef. 247.
PLEA. 233
ing, it is confidered that f© far as appears to the court, it is a
full defence-, but that there maybe matter difclofed in evidence
which may avoid it, fuppofmg the matter pleaded to be
ftrietly true ; and the court will not therefore preclude the
que ft ion (r).]
[When a plea is ordered to ftand for an anfwer, it is merely
determined, that it contains matter which may be a defence or
part oi a defence •, but that it is not a fuil defence, or it has
been been informally offered by way of plea, or that it has not
been properly fupported by anfwer, fo that the truth of it is
doubtful. If a plea is ordered to ftand for an anfwer, it is
allowed to be a fufficient anfwer to fo much of the bill as it
covers (
court fhall not fee caufe to make a decree thereupon for want
of fufficient matter confeffed by the anfwer, the bill fhall be
difmiffed with cofts, or the plaintiff may be admitted to reply
if he defues it, paying down five pounds, or fuch other cofts
as the court fhall think fit for the day, within four days after
fuch hearing ; which if he does not, the difmif&on niuft fland,
and being fgned and inrolled, maybe pleaded in bar to anew
bill for the fame matter, &c, (»).]
The plaintiff" fet down his caufe to be heard on bill and an-
swer, and had a. decree againft the defendant by default j and:
when the defendant came to fhew caufe againft the decree, it
was altered in his favour; the plaintifF petitioned to rehear the
caufe ; and at the rehearing prayed leave to reply to the de-
fendant's anfwer, and had it, paying cofts (;*).
Where witnefles have been examined, and no replication,
the court at the hearing, or even after a decree, will order a
replication to be filed nunc pro tunc. A caufe is at iffue by the
replication, and a rejoinder is never actually filed (o).
And if the fubpoena to rejoin be not ferved, Sec, though it
be fued out, the caufe may be heard on bill and anfwer.
If plaintiff replies to the defendant's anfwer, but never ferves
him with a Jubpcsna to rejoin, he may rejoin gratis, in order to
prove his- anfwer, though the plaintiff cannot force him to
rejoin without a Jubpncna (p).
it is now the courie of the court, that the plaintifF be allowed
to the end of the third term after coming in of the defendant's
anfwer, to file his replication, exelufive of the term the anfwer
is filed in.
It is the common practice for the plaintiff after he has ceafetl
profecution for three terms after replication filed, and the de-
fendant moves to difmifs the bill, to pray leave of the court to
withdraw his replication, and amend his bill, by which means
the fuit is retained.
Replications need not be figned by counfeL
A Replication.
The replication of A. B. complainant to feveral a-nfwers of
CD. defendant.
This repliant faving unto himfelf all and all manner of ad-
vantages of exceptions to the manifold inefficiencies of the
faid anfwer, for replication thereunto faith, that he will aver
and prove his faid bill to be true, certain, and fufficient in the
law, to be anfwered unto ; and that the faid anfwer of the de-
(m) Px. Aim. 14. ( ) Mofeley 2q5.
(n) I Eq. Ca, Abr. 43. (j>) Mofeley 296.
fendant
2 4 o REPLICATION.
fendant is uncertain, untrue, and infufficient to be replied unto
by this repliant without that, that any other matter or thing
whatfoever in the faid anfwer contained, material or effectual
in the law to be replied unto, and herein not replied unto, con-
ferred and avoided, travcrfcd or denied, is true ; all which
snatters and things this repliant is and will be ready to aver and
prove as this honourable court mail award, and humbly prays,
as in and by his faid bill he hath already prayed.
The replication being engroiTed on parchment with double
as. 6d. (tamps, is to be marked near the top thereof with the
day of the month and year when filed, and to be fubfcribed
near the bottom on the left fide, with the furname of the clerk
in court, who files it, and alfo the term in which the bill was
filed, with the furname of the defendant's Six Clerk. This
done, the clerk in court enters it in his caufe book, and then
files it with his Six Clerk, acquainting the defendant's clerk
in court by a fhort note in writing that he has fo done.
( 2 4 l )
CHAPTER THE FORTIETH.
Rejoinder and joining in Csmmiffion.
rT}EJOINDER is the defendant's allegation to the plaintiff's
**- replication, whereby he endeavours to weaken the plain-
tiff's replication, and ftrengthen his own anfwer. Therefore
it mult always purfue and confirm the anfwer fufficiently,
avoid and traverfe every material point of the replication (a).]
[According to the prefent courfe of the court, rejoinders,
furrejoinders, rebutters, and furrebutters, are difufed. New
matter offered bv a defendant in an anfwer, which formerly
gave rife to a fpecial replication, being by the prefent mode of
vuLictice introduced into the bill by way of amendment, and
a caufe being at hiue by the replication, a rejoinder is never
actually filed (*).]
[ Although a rejoinder is feldom or never filed, yet cafes may
arife in which a rejoinder may poffibly be neceflary, as where
a plaintiff in a caufe has examined a witnefs de bene ejft, and
afterwards replied without proceeding to ferve a fubpoena to
rejoin ; the defendant may immediately file a rejoinder, and
compel the plaintiff to examine in chief his witnefs examined
de bene ejj'e ; a neglect of which will render the depofitions
taken de bene effe nugatory, if the witnefs live long enough to
be examined in chief (r).]
[According to the prefent courfe of the court, although
rejoinders are difufed, yet the plaintiff after replication muft
ferve upon the defendant a fubpeena requiring him to appear to
rejoin, unlefs he will appear gratis. The effect of this procefs
is merely to put the caufe completely at iffue between the
parties. For now immediately after the defendant has appeared
to rejoin gratis, or after the return of a fubpeena to rejoin ferved
on the defendant, the parties may proceed to the examination
of witneffes to fupport the facts alledged by the pleadings on
each fide [d)J]
(a) Wy. Pratt. Reg. 371. (c) Hind. 291.
^b) H nd.2pi. [d) Mitf. 257.
Vol. I. R Where
242 REJOINDER AND JOINING IN COMMISSION.
Where the plaintiff files his replication in term, he may fu»
out a . fubpcena againft the defendant to rejoin, returnable at
a certain day in term time, and may, if he pleafes, ferve the
defendant therewith. But this rarely happens, unlefs where
the defendant lives in town, and may be eafily ferved, for it is
mod ufual to apply by motion or petition, that a. fubpcena tc*
rejoin, returnable immediate, may be iifued againft the de-
fendant, and that fervice thereof on the defendant's clerk in
court may be deemed good fervice of the defendant, which is
of courfe. And to this is alio added (in a country caule) that
the plaintiff may be at liberty to take out a commiflion for
examination of witneffes, and that the defendant may join
and ftrilce commiflioners names in four days after notice thereof
to his clerk in court, or in default thereof, that the plaintiff
may have a commiflion to examine witneffes directed to his
own commiflioners-, which is alfo granted of courfe.
[No fruit fhall be taken of any fubpcena ad. rejungendum unlefs
there be a replication firft entered with and filed by the plaintiff's
Six Clerk in the caufe, according to the courfe of the court
before the iffuing out of the (aid fubpcena, or at lead before the
return thereof •, and the parties upon whom (xxch fubpaena fhall
be ferved, finding no replication fo filed before the return
thereof, fhall have the ordinary colls taxed (*).]
[The order to rejoin being drawn up, pafled, and entered
with the Hegifter, a pracipe for a fubpcena to rejoin, returnable
immediately, in the following form, mull be left at the Subpoena
Office, producing the order f or the fubpcena pafled and entered,
•a hen the pracipe is left at the office (/).]
[Subpoena A. 15. to appear in Chancery, returnable imme-
diately, to rejoin with C. D.
Booth folicitor. Tefted aoth June, 1783 {g).]
[The form of the wrk is as follows :
George the third, &c.To A.B. greeting. For certain caufes
offered before us in our Chancery. We command and ftriaiy
injoin you, that laying all other matters afide, and notwith-
standing any excufe, you perfonally be and appear before us in
our faid Chancery immediately after the receipt of this writ,
wherefoever it fhall then be, to anfwer concerning thofe things
which fhall be then and there obje&ed to you •, and to do
further and receive what our faid court fhall have confidered in
(e) Hind. 293 & 4. Or<3. Cha. (/) Hind. 295.
45 i io2. is) Hind - 2 95-
thi
REJOINDER AND JOINING IN COMMISSION. 2.13
this behalf. And this you may in no wife omit under the
penalty of one hundred pounds, and have there this writ.
Witnefs ouffelf -at PFeftminfief the 20th day of June in the
twenty-third year of our reign.
Courtenay and Courtenay.
Indorfed, By the court, to rejoin and join in cornmiflion in
the caufe of C. D.
Label. A. B. to appear in Chancery ret. immed. to rejoin
with C. D. Courtenay and Courtenay (A).]
[The [ah pee n a being obtained from the Subpoena office, the
plaintiff's folicitor ferves it upon the defendant's clerk in court,
by leaving the body thereof at the clerk in court's feat in the
Six Clerk's office with his agent, orperfonally upon the clerk
in court, ferving at the fame time the order paffed and' entered
for the fubpeena with fuch return, by leaving a copy of the order
with the defendant's clerk in court perfonally, or with his
agent at hi; feat in the Six Clerk's office, (hewing the original
order paffed and entered (/).]
The rejoinder of C. D. and £. F. defendants to the replication of
A. B. complainant.
[The faid defendants now, and at all times hereafter, Caving
and referving to themfelves all and all manner of benefit and
advantage of exception to the uncertainty and infufficiency of
the faid replication, they and each of them faith, that the de-
fendants' laid anfwer is certain, true, and inefficient in the
law to be replied unto ; and they alfo fay, as in and by their faid
anfwer they have already faid, and do and will aver and main-
tain all and every thing and things therein to be true and cer-
tain, in fuch manner and form, as they and every of them are
therein alledged and expreffed (£).]
[In a country caufe, or where the witneffes refute above ten
miles from London, the examination of witneffes is by com-
miffion (/).]
When the plaintiff intends to go to commiffion to examine
witneffes, he mult ferve the defendant with a fubpeena to rejoin,
or get an order to ferve his clerk in court with a fubpeena to
rejoin, returnable immediate (except the defendant will rejoin
gratis) before he can have his commiffion, and on the return
thereof the plaintiff may (by an order for that purpofe) oblige
the defendant to join and ftrike commiffioners' names ; or in
default thereof take out a commiffion for examination of wit-
neffes ex parte.
(b) Hind. 295. (I) Hind. 292.
(i) Hind. 296. (/) Hind. 29-.
R 2 [The
244 REJOINDER AND JOINING IN COMMISSION.
[The order prefcribes four days for the defendant to join in
commiflion (m).]
[By the rule of the court the plaintiff is firft entitled to fue
out a commiflion to examine witneffes •, but if the plaintiff
neglect to fue out a commiffion, the defendant may ; and foil
was laid down by the Lord Chancellor («) .]
With refpect to joining in commiflion ; the party's clerk in
court entitled to the commiffion, applies to the clerk of the
other fide to join in commiflion., which is done in manner fol-
lowing : viz. firft, he who has the carriage of the commiflion
names a commiftioner ; then the other does fo alfo ; and fo
alternately till each of them has named four ; which they enter
in their commiflion books ; and after each hath confulted his
client, he ftrikes out two of the four names in this manner :
firft, he that hath the carriage of the commiflion ftrikes out one
of thofe that were named by the other party ; and then the
other ftrikes out one of thofe that were named by him ; and
fo each of them ftrikes out one more ; which being done, the
four remaining are the commifiioners.
But if a defendant joins in a commiflion, and afterwards
refufes to ftrike commifiioners' names, the court on petition
will ftrike out fuch two of them as they pleafe ; the plaintiff 's
clerk in court being at liberty, notwithftanding the defendant's
clerk in court refuf;s to ftrike plaintiff's commiflioners
names, to ftrike out which two of the defendant's commif-
iioners names he fhall think fit ; and the commiflion fhall go
to fuch of the four commiflioners as are left ftanding.
After you have joined, and ftruck commiflioners' names with
the defendant's clerk in court, you proceed to make out a joint
commiflion to examine ; but if the defendant's clerk in court
fails to join, and ftrike commiflioners' names, being ferved
with an order, and [nbpcena to rejoin for that purpofe, you may
then make out a commiflion ex parte directed to your own
commiflioners ; in which cafe no notice of its execution need
be given to the other fide.
(m) Hind. '^98. (n) 1 Dick. 793, '
( 245 )
CHAPTER THE FORTY-FIRST.
Commijfions to examine, &c.
r PHIS writ is either to examine the parties or witne/Tes, or
-*- others, as contemners, Sec.
A commiflion to examine witnefles is fometimes to examine
them to the caufe, i. e. as to the merits thereof; or to fome
particular point in queftion ; or it may be to examine them
touching a contempt, or the breach of fome order of court
&c. Examination to the caufe is generally before hearing ;
though fometimes it may be after hearing ; as upon an account
referred to a Matter ; or upon new matters arifing at the
hearing.
Though a caufe be only matter of account, which may be
and generally is examined to after hearing, yet where a de-
fendant defires a commiflion before hearing, the court always
grants it, as being what he has a right unto.
But the more common way now is not to examine a matter
of account before hearing, but after, before a Matter, if the
witnefles be in town, or near ; if not, then by commiflion to
be directed by the Matter upon his certificate; and either
party may examine witnefles to an account, or to a particular
thing after hearing.
Commiflioners ought to be indifferent perfons.
The firft taking out, and carriage of the commiflion, is
regularly the privilege of the plaintiff ; but the court will
fometimes indulge the defendant with a duplicate, becaufe in
cafe the plaintiff refufes to give notice of the executing thereof,
and does not intend to execute it, then the defendant may
make ufe of his duplicate, and proceed to examine witnefles
by virtue thereof ; and this duplicate is the rather granted, if
it is doubtful, whether the plaintiff will execute his commiflion
or not ; and more efpecially, if he be forced on by the de-
fendant, as in an injunction caufe, where delay is only de-
figned ; and fometimes this duplicate is granted by confent.
If the witnefles for the defendant live far diflant from the
plaintiff's, as fixty or eighty miles, or beyond the feas, where
the plaintiff hath none, in this cafe the defendant may have a
R 3 commiflion
9.:\6 COMMISSIONS TO EXAMINE, &c.
commifhon for examining his witnefles only ; and have the car-
riage thereof. But the plaintiff may join in fuch commifhon,
and crofs examine the defendant's witnefles on the plaintiff's
interrogatories, or examine what other witnefles he pleafes on
inch commifhon
If when a caufe is at iiTue, the plaintiff will not go on to
commifhon, the defendant ma}* by order have a commifhon to
examine his own witneffes ; and lhall have the carriage thereof •,
and fo if the plaintiff commit any abufe in the execution of the
firft commifhon, the defendant mall have the carriage of the
fecond.
Alio where a commifhon loft by the fault of him who had
the carriage of it, is renewed, the other fide fometimes hath
the carriage of it.
[The commifhon for the examination of witneffes being pro-
cured as before mentioned, is fent by the clerk in court to his
client, the folicitor for the party, plaintiff, or defendant, ob-
taining the commifhon •, the folicitor upon receipt ol the com-
mifhon, apprizes his own commifhoners of die nature and
method of proceedings upon the commifhon, and keeps it un-
opened, until the day appointed for the execution thereof ; the
time and place of executing the commifhon being fettled
among themfelves. If it be a joint commifhon, the folicitor
for the party who has the carriage of it, mult procure a notice
in writing, to be fubfcribed by two of his commifhoners, ap-
pointing the time and place of execution, and directed to thole
parties, to whom by the label of the writ notice is directed to
be given («).]
He who has the carriage of the commifhon muft give four-
teen days notice under his commifhoners' hands, of the time
and place for executing the pommiflipn, and fuch notice muft
be given to ail the defendants who join in fuch commifhon,
ctherwife it is not good notice ; and the depofitions may be
fuppreffed for irregularity. But perfonal notice is not neccfiary.
And in default of notice, the court will grant the other fide a
new commifhon, or in cafe of the plaintiff's sefttfing to give
notice, the defendant, having a duplicate, may ufe it. And if
notice is directed to be given to a perfon you cannot find, then
on affidavit thereof, and filing it, you may on motion or peti-
tion, obtain an order for a Mailer to appoint time and place.
[This notice in writing muft fpecify the title of the caufe,
the time when, and the place where, the execution of the
commifhon is appointed to be held (/').]
(a) Hind. 2 3h 335- % 3 Atk. 6^
■fendant's commiffioners look up the commiiTion, carried if;
away, and came not at the day appointed. The plaintiff's
commiffioners came and examined witnefles without having the
commifTion, and certify thefe wiih the former depofitions
taken, and the whole matter. The court ordered the depo-
fitions certified to be fealed up again and remain here, and
award a fubpceria duces tecum againlt the commiffioners to bring
in the commifTion, and thereupon the court would take further
order {e).~\
If notice be given of executing the commifTion, and at the day
appointed the commifTion is opened, but nothing done there-
upon, nor any adjournment made, the commifTion is loft, ex-
cept the other fide agree to adjourn, or to take new notice.
But if the commifTion be not opened, and he who has the car-
riage thereof gives new notice, and then executes it, this is a
fufficient execution, unlets in the mean while the other fide
obtain and ferve an order to ft ay proceedings, till the cofts of
the former attendance of the defendant's commiffioners and his
witriefs be paid, and that they are not paid.
It is ufual, when an adjournment is made, to make a memo-
randum thereof, which the commiffioners are to fign.
If by default of him, who has the carriage of the commif-
Tion, nothing is done thereon, he fhall bear the charges the
other fide is put to about it, either for Tees oT court, bringing
or retaining commiffioners or wilneffes, or otherwife, to be
afcertained by the oath of the party, or him that difburfed the
money for him, and fhall renew the commifTion at his own
colts {f).
And if a commiffion become void by the error of the clerk in
making it, the colts, I think, fhall generally be born by him,
and that fide for whom it was taken out, and who had the
carriage of it.
After due notice has been given, if the one fide produces
and examines all his witnefles, and the other fide does not, but
prays a new commiffion ; if it be granted, he that prays it,
fhall bear all the charges of fuch renewed commiffion, both in
the court and in the country, and as well for the other's com-
miffioners as his own ; and the other fide fhall be permitted to
crois-examine the witnefles produced by him that renews the
commiffion. But if the other fide will examine any witnefles
of his own, then he fhall bear his own part of the charge. The
charges above mentioned to be afcertained by the oath of the
party, or of him who difburfed the money for him (g).
The commiffion being opened and read, both parties are
(e) Wy-.Praa. Reg. 126. (/) Ord. Cha. 132. (g) Ord. Chan. 132,
then.
COMMISSIONS TO EXAMINE, &c. 249
•then obliged to exhibit their interrogatories, if they intend to
examine any witneffes.
He at whole instance a commiffion is renewed after a former
c nmniifion executed and returned, and he by the default of
whom or of whofe commiffiouers a former commifhon was not
executed, and it is thereupon renewed, fhall, at his peril, exa-
mine all his witneffes on that renewed commiihon, or (hall
examine them in court by the end of the term, it is returnable
without any more or further delay (h).
If commifuoncrs m themfelves, the court will grant
an attachment againft them ; but regularly a commiffion can-
not be fiipprefied but upon a reference, and certificate of
irregularity (;').
/ If the commiilion is executed contrary to notice, or not due
notice given, or the depositions returned arc fo badly engr
or interlined, that they are not legible, in this and many other
cafes of the like nature, there may be good reafon to iep-
prefs the depositions ; bnt in this laft cafe, the record or engrofT-
rnent of the depofitions is brought into court by the pr< r
officer, and the court tal.es the engrofiment into their hands ;
and if it is pofiible to be read, or if being handed down to the
clerk he can read it, they will hardly fupprefs the depofitions,
and put the party to new trouble of examining over again.
[If the commiffioriers cannot agree, or meet with any ob-
ftrueddon in executing the commiihon, that or what elfe is
neceffary to inform the court of, muff be certified by the com-
miflioners in the return of the commifhon (£).]
[Where commiffioners of one fide certified irregularity, and
both or one of the other fide made affidavit •, the court
ordered the eommiflioner on the other fide to make affidavit
too ; for the court in fuch cafe will order what fhall be thought
neceffary for difcovery of the truth of the fa£t, (/).]
[Where cominifhoners on one fide certified partiality in the
other ; the court feemed unwilling to take any notice of it,
faying let them certify the matter committed to their charge.
And if there be mifdemeanor, let the party wronged make
affidavit thereof, 8cc. (w).]
The Examiners have a rigfat to examine all witneffes in town,
or within ten miles of the town, which is the circuit of the
court; and if any commiffion be made or witneffes examined
within that diftri&, the clepofitions taken by the commiffion
will upon complaint be fuppreiTed, and the clerk who made
(/>) Ord. Chan. 133. (!) Px. Aim. 19.
(/) Cary 4.3. ( m ) Caryj.,.
(i) Wy. Pratt. Reg. 125.
out
HP COMMISSIONS lO EXAMINE, Lc.
cut the 5 commiflion, will fland committed for a mifbehaviout
and a breach of the known duty of his office.
[The preftnt practice is to execute no commiflion to examine
wiuaefies within twenty miles, which feems to have been the
practice formerly («).]
No commiflion can be executed in term time, unlefs by
leave of the court, but this is now granted of courfe or by
confent.
Allcommiflions for examination of witneiTes are to be made
returnable on oae of the returns in or before the term, unlefs
where the parties agree to have it without delay," or an order
is obtained for that purpofe (o).
[A commiflion executed after four in the afternoon of the
day, on which it was returnable, was held regular (/>).]
When a commiflion is returnable without delay, if it be
within this kingdom, (if made out in the vacation time at any
of the feals after the term) it mull be returned by the fecond
return of the next term ; if executed afterwards, it is void and
the depofitions ought to be fuppreffed (q}.~\
But obferve, that if a commiflion be made out the fird or
fecond feal before the term, or the tirft day of term returnable
without delay, the fame return holds good to the end of that
term.
[A carrier was ordered to deliver exhibits which he had
been examined to under a commiflion for the examination of
witneiTes in the country (r).]
[Commiflion having been executed and feaied, with the de-
pofitions by the ccmmiflioners, was loft on the road, and
picked up by two travellers. On affidavit that they had not
opened or altered the fame, the depofitions were ordered to
be received (j).]
[The refidence of witneiTes beyond fez, or cut of the jurifdiBion
of the court, whofe teflimony will be material to fome of the
parties in the fuit, frequently occaiions application for a com-
miflion to examine %viihejfei abroad, and if foreigners, in their
own language (/).]
[The firft ftep towards obtaining an order for a commiflion
of this nature, is the making and filing an affidavit, ftating,
that fome oi the witneiTes, whofe evidence will be material,
and whom it will be neceffary to examine .on the behalf of the
(n) Hind. 305. Ord.Chan. 53, (*) 1 Dick. 325.
(0) SeeMofely 176. (s) 1 Dick. 99.
(/>) 1 Dick. 21. (/) Hind, 305.
(q) 2 Vern. 107. Fide 3 Atk.
591-
party
COMMISSIONS TO EXAMINE, Sec. 251
party making the application (plaintiff or defendant) refide at
(naming their place of rcfidence) and that the party cannot
fafely proceed to hearing of the caufe, without the teftimony
of thole witneffes. The order may he obtained by motion in
court, or petition to the Mailer of the Rolls, If the order be
applied for by motion in court, notice in writing of the party's
intended motion for a commiflion to examine witneffes at (the
witneffes' place of rcfidence) nmft be fcrved on the adverfe
clerk in court, by leaving a true copy of fuch notice with the
clerk in court perfonally, or with his agent at his feat in the
Bis Clerk's office on the day next but one before the motion is
to be made, unlefs Sunday intervenes (w).]
[If the order for a commiffion to examine witneffes abroad
be applied for by petition to the Mafter of the Rolls, the affi-
davit before ftated mult be annexed to the petition, and left at
the Secretary's office in the Rolls-Yard ; and his Honour will
grant the prayer of the petition as of courfe ; the petition an-
fwered being taken, and left at the Register's office, the order
muft be drawn up, paffed, and entered at that office, and a
true copy of the order fo paffed and entered muft be ferved
upon the adverfe clerk in court in the like manner as the notice
of motion before mentioned (»).]
[the return of this corrmiiflion to examine abroad may be
without delay, or on a general return day in term. The re-
turn depends upon the diftance of the place where the exe-
cution of the commiiTion is intended to be had ; if the execu-
tion be in the Eaft Indies, the return of commiffion mull
. be fo timed, as to allow for the execution thereof, the delay
of the voyage, and other incidental circurnftances (v).J
[The order for the commiflion, which in term time fhould
always be applied for by motion, of which notice in writing
two days previous to the application fhould be given to the
clerk in court, ufually dire£ts the adverfe party's clerk
in court in a limited time to join and ftrike commiffioners*
names, and to name an agent refident in the place where the
commiffion is to be executed, to whom notice of the execu-
tion of the commiffion is to be given, and that fervice of the
notice upon fuch agent, be good fervice upon the adverfe party,
or in default of joining in commiffion or naming an agent, the
commiffion to iffue ex parte (z).l
[The party applying for this commiffion muft make oath of
his belief of the materiality of the evidence (a).]
() Hind. 306. (z) Hind. 362.
(-v) Hind. 306. (a) I Bro. C. C. 448.
(j) Hind. 307,
[To
%$i COMMISSIONS TO EXAMINE, &c%
[To obtain a commiffion to examine witneffes abroad, it i$
riot neceffary to Hate the point to which it is intended to exa-
mine, or, where the fubjett. arifes abroad, the names of the
witneffes (£)."]
[On motion for a commiffion to examine witneffes abroad,
the fubject matter arifmg abroad, it ought to be Hated in the
affidavit that the matter afofe abroad, or fufficient read from
the anfwer to fnewit (c).~J
[A commiffion to examine wTtnefies in a foreign countrv at
war with England, may be executed at the neareft neutral
pot? (4 j •, ■ ..;'"-,
The courfe of tne court is, that where an account mud
fie'eeffarily be directed at the hearing, a commiffion mail not
be granted before the hearing to examine witneffes beyond
fea, when it will delay the account directed j and the proper
time to apply for fuch commiffion is after the account
directed. It was refufed, though the party confented to goto
Jiearing at the fame time, as if the commiffion had not been
granted (e).
[After bill filed, and before anfwer, t\\z court on affidavit
that any of the complainant's witnelfes are aged and infirm,
Jtek, or going beyond Jta, whereby the plaintiff thinks he is in
danger of lofrng their teftimony, will order them to be exa-
mined de bene ej/e, l, e. fo as to be valid if the plaintiff has not
an opportunity to examine them after anfwer, as if in one cafe
they die before anfwer, and in the other return not after. In
either of which cafes, the depofitions may be made ufe of either
in this court or at law (/)■]
An order made 8 Geo. i. directs, that all commiffioners and
their clerks before they act in the commiffion, (hall, feverally,
take an oath not to publifh or difelofe the contents of the depo-
fitions to be taken ; which oath is to be annexed in a fchedule
to the commiffion, and alfo in all eommiffions which fhall iffue
to examine witneffes, a claufe to that effect is to be added, and
made part thereof ; and any commiffioner or clerk acting con-
trary to the premifes, on proof of the offence, fhall be punifhed
as the court fhall think fit to adjudge and order.
The commiffioners and witneffes being met together at the
time and place appointed, according to notice, the commiffion
{I) 7"Vef. 304. 4Br0.CC. S9. enemy's country. Cahin v. Shep-
(c) 2 Bro.C.C. 273. perd, isVef.335.
(d) Ambl. 62. But in a late (e) Barnard 193.
••cafe, the court granted acommif- (f) Px. Aim. 22, lVern.331.
(which
ton to examine
witneffes i,
COMMISSIONS TO EXAMINE. &c. 253
(which till that tirne mull remain fealed) maybe opened, thac
the commiflloners may fee their authority, and then they
are to adminilter the oath to eaeh other, and alio the oaths to
the clerks annexed to the commiiTion.
[The acting -commiffioners are always allowed one gninea
per diem during the execution of the commiihon, exclulive of
every other expencc incident thereto ; the clerks are in like
manner entitled to half a guinea per diem. The expences
and charges of entertainment and other matters are borne by the
parties joining in and attending the execution of the commif-
lion. The expences of the witnefles are always to be paid
by the party producing them before they giye evidence, if
required (g).~\
A Commtjfion to examine Witnefles.
George the Third, by the grace of God, &c. To A.B., C.D, ?
E, F., G. H , greeting. Know ye, that we, in confidence
of your prudence and fidelity, have appointed you, and by
thefe prefents do give unto you, any (h) three or tiro of you,
lull power and authority diligently to examine (i) (ail witnelTes
whatfoever) upon certain interrogatories to be exhibited to
you (£), as well on the part of I. K. complainant > as on the
part of L. M. defendant^ or of cither of them. And there-
fore we command you, any (/) three or two of you, that at
certain days and places to be appointed by you for that purpofe,
you do caufe the laid witnefles to come before you, and the$
and there examine each of them apart upon their faid interro*
(g) Hind. 350, 359- joins therein •; then the words in
(h) Note. [Where there are italics are omitted, and in their
feveral defendants who have fe- place the following are inferted^
veral clerks in court, the words " as well on part of dfend-
11 any tTxxc or more of you, &c.'' ant as on the part compiam-r
are inferted, and thole in italics ant; nr of either cf them, and, &.c.. v .
omitted. Hind. 299.3 Or if the commiflion be male out
(/) [In a commiflion to exa- ex parte the following words, •'■■' on.
mine witnefles de bene tffe the the part cf againft and
name of the party to be exa- therefore^ £5V." and the label is
mined reuft be inferted thus, made to correfpond with the tenor
leaving out the words included of the writ. Hind. 299 J
within the brackets, « A. B. ofC. (/) Note. [Where there are
in the county of D. } de bene ejfe" feveral defendants who have
Hind 299.] feveral clerks in court omit the
(k) Note. [Sometimes the com- words, " thre or tivd 1 ' and m
million is obtained on the part of their place infert, " two or mors'*
the defendant., and the plaintiff Kind. 299.]
gatories
254 COMMISSIONS TO EXAMINE, Sec.
gatories on their refpeclive corporal oaths firft taken before
you, any three or two of you, upon the holy Evangelifts, and
that you do take fuch their examinations and reduce them
into writing on parchment •, and when you fhall have fo
laken them, you are to fend the fame to us in our Chancery
(inlert return) wherefoever it fhall then be, clofed up and
under your feals, or the feals of three or two of you, dif-
tinCHy and plainly fet, together with the faid interrogatories
and this writ. And we further command you, and every
of you, that before you act in or be prefent at the fwearing or
examining any witnefs or witnefles, you do feverally take the
oath firft lpecified in the fchedule hereunto annexed. And we
do give you, any three, two, or one of you, full power and autho-
rity, jointly or feverally, to adminifter fuch oath to the reft, or
any other of you, upon the holy Evangelifts. And we further
command that al! and every clerk or clerks employed in taking,
writing, transcribing, or engroffing the depofition or depo-
fitions of witneffes to be examined by virtue of thefe prefents,
fhall, before he or they be permitted to act as clerk or clerks as
aforefaid, or be prefent at fuch examination, feverally take the
oath laft Specified in the faid Schedule annexed. And we alio
give you, or any one of you, fuil power and authority jointly
and feverally to adminifter fuch oath to fuel) clerk or clerks
upon the holy Evangelifts. Witnefs ourfelf at I-f^JInwiJler
the day of in the year of our reign.
Indorfed by order of Court. Sewell Winter.
Label. To (infert commiffioners) gents., any three or two
of them, a commiffion to examine (m) witnefles, as well on
the part of I.K. plaintiff, as on the part of L.M. defendant,
returnable (without delay) on fourteen days notice to the
defendant. Sewell Winter («).]
To this commiffion are annexed the following forms of
oaths (printed upon parchment) to be adminiftered to the
commifiioners and to their clerks.
The Ccmrmjjioner s oath.
You {hall;, according to the left of your fkill and knowledge,
truly, faithfully, and without partiality to any cr either of the
parties in this caufe, take the examinations and depofitions of
all and every witnefs and witnefles produced and examined by
virtue of the commiffion hereunto annexed, upon the interro-
(«z) Note. [In a commiffion to examined thus, *' A. B. de lent
examine a witnefs de bene ejjc, in- e/p-'' Hind. 30c]
iert the name of the party to be (n) Hind. 299, 300, & 301.
gatories
COMMISSIONS TO EXAMINE, &*. 255
gatorics now produced and left with you. And you fhall not
publiih, difclofe, or make known to any perfon or perfons
whomfoever, except to tlie clerk or clerks by you employed
and fworn to lecrecy in the execution of this commiffiori, the
contents of all or any of the depofitions of the witnefles, or
any of them to be taken by you and the other commiflloners in
the laid commiffion named, or any of them, by virtue of the faid
cominifiion, until publication fhail pafs by rule or order of the
high court of Chancery. So help you God.
The Clerk's catb.
You fhall truly, faithfully, and without partiality to any
or either of the parties in this caufe, take and write down,
tranfcribe and engrofs the depofitions of all and every witnefs
and witnefles produced before and examined by the commif-
lloners, cr any of them, named in the commifhon hereunto an-
nexed, as far forth as you are directed and employed by the
faid commiflloners, or any of them, to take, write down, or
engrofs the faid depofitions, or any of them. And you fhall
not publifh, difclofe, or make known to any perfon or perfons
whatfoever, the contents of all or any of the depofitions of the
witnefles, or any of them, to be taken, written down, tran-
scribed, or engrofledby you, or whereto you fhall have recourfe s
or be in any wife privy, until publication fhall pafs by rule or
order of the high couit of Chancery. So help you God„
A commijjlon to examine ivitnejfes abroad and in foreign language.
George the third, See. To (commifhoners) greeting. Know
ye, that we, in confidence of your prudence and fidelity, have
appointed you, and by thefe prefents do give unto you, any
two or more of you, full power and authority, diligently to
examine all witneffes whatfoever, upon' certain interrogatories
to be exhibited to you as well on the part of A.B. complainant,
as on the part of C. D. defendant, or either of them : And
therefore we command you, any two or more of you, that at
certain days and places to be appointed by you for that pur-
pofe, you do caufe the faid witnefles to come before
you, or any two or more of you, and then and there examine
each of them apart upon the faid interrogatories, on their
refpective corporal oaths to be firft taken before you, any two
or more of you folemnly (0). And that you do take fuch their
(0) [Or according to the cuflom of the country. Hind. 309.]
examination?
i$C COMMISSIONS TO EXAMINE, &c.
examinations and reduce them into writing on parchment, and
when you fhall have fo taken them you are to fend the fame to
us in our Chancery (without delay) together with the faid in-
terrogatories and the certificate herein-after defcribed, where -
foever it {hall then be, clofed up under the feals of you-, any two
or more of you, diftin&ly and plainly fet together with this
writ. And we further command you, and every of you, that
before any one of you a£t in or be prefent at the fwearing or ex-
amining any witriefs or witnefTes, you do feverally take the oath
firil fpecified in the fchedule hereunto annexed. And we give
you, any three, two, or one of you, full power and authority
jointly or feverally to adminifter fuch oath to the refi, or anv
oilier' of you, upon the holy Evangelifts. And we further
Command that all and every the clerk or clerks employed in
taking, writing, tranferibing, or engrofling the depofition or
depofitions of witneffes to be examined by virtue of thefe
prefents, {hall, before he or they be permitted to act as clerk
or clerks as aforefaid, or be prefent at fuch examination, fe-
verally take the oathlaft fpecified in the faid fchedule annexed.
And we alfo give to" you, or any one of you, full power
and authority jointly or feverally to adminifter fuch oath
to fuch clerk or clerks, upon the holy Evangelifts. And we
do further give and grant unto you, full power and authority,
and do by thefe prefents command you, that ycu, or any two
or more of you, do, after you have fo entered upon the execu-
tion of this commiffion, fwear one or more interpreter or inter-
preters upon his or their oath or oaths, folemnly, well, and
faithfully to interpret the oath or oaths and interrogatories
which fhall be adminiftered and exhibited by either party to
any fuch witnefTes who do not underftand the Englifh language,
and alfo to interpret their refpeclive examinations and depo-
fitions taken to the faid interrogatories. And we further
command and direct that you, or any two or more of you, do
certify to our Chancery in what manner the oath or oaths fhall
have been adminiftered by you to the feveral witneffes reflect-
ively, who fhall have been examined under the commiflion,
and of what religion each and every of the faid witneffes re-
fpeclively is or are. Witnefs ourfelf at Weftminfter the 20th
day of June in the twenty-third year of our reign.
Indorfed, By order of the Court. Sewell Winter.
Label. To (commiffioners) any three or two of them, a
commiflion to examine witneffes abroad at as well on
the part of A. B. plaintiff", as on the part of C. D. defendant,
returnable (without delay) on fourteen days notice to the de-
I fendant's
COMMISSIONS TO EXAMINE, See. 257
fenJant'scommiflioners (or fuch perfon as the order directs
or the folicitors agree upon.) Sewell Winter (/>).]
To this commiflion are annexed the ufual oaths printed
upon parchment for the commiilioners and their clerks, the
variation in the writ when obtained on the part of defendant or
ex parte t are precifely the fame as in the ordinary cemmiflions.
A Comm'iJJion to examine a defendant touching a contempt.
George the Third, Sec. To A. B., C. D., E. F., greeting.
Know ye, that we, in confidence of your prudence and fidelity.,
have appointed you, and by thefe prefents do give unto
you, any three or two of you, full power and authority
in purfuance of an order of our court of Chancery bear-
ing date the day of laft paft, made in a cer-
tain caufe there depending, wherein A.B. is complainant, and.
C. D. defendant, diligently to examine the faid defendant
upon interrogatories enclofed in thefe prefents touching a con-
tempt fuppofed to be by him committed. And therefore we
do command you, any three or two of you, that at a certain
day and place to be appointed by you for that purpofe,
you do caufe the faid defendant to come before you, and
then and there examine him upon the faid interrogatories, on
his corporal oath firfl taken before you, any three or two of
you, upon the holy Evangelifts ; and that you do take fuch
examination and reduce it into writing on parchment. And
when you fhall have fo done, you are to fend the fame to us in
our Chancery, wherefoever it mail then be, clofed up under
your feal or feals of two or three of you, diltinclly and plainly
fet together, with the faid interrogatories and this wrir.
Witnefs ourfelf at Weitminfter the day of in the
year of our reign.
Commijfion to take a defendant's examination on interrogatories,
George the Third, See. To greeting. Know ye, that
we have given unto you, any three or two of you, full power
and authority in purfuance of an order of our court of Chan-
cery bearing date the day of made in a certain
caufe there depending, wherein A. B. is complainant and
C D. defendant, to take the examination of the faid C. D.
defendant, upon interrogatories enclofed in thefe prefents.
And therefore we command you, any three or two of you, that
(p) Hind. 309, 310.
Vol. I. S at
258 COMMISSIONS TO EXAMINE, &c.
at fuch certain day and place as you fhall think fit, you go to
the faid defendant, if he cannot conveniently come to you, and
take his examination to the faid interrogatories, on his corporal
oath, upon the holy Evangelifts to be firft adminiftered by you,
any three or two of you, the faid examination being diftinttlv
and plainly written upon parchment - y and when you fhall have
fo taken the faid examination, you are to fend the fame clofed
up under the feals of you, any three or two of you, together
with the faid interrogatories and this writ unto us in our faid
court of Chancery, wherefoever it fhall then be. "Witnefs
ourfelf at Weftminfter the day of in the
year of our reign.
( 259 ) . r '£&
CHAPTER THE FORTY-SECOND.
Examination of Witneffes.
THE mode of examination of witneffes in equity, is^ by in-
terrogatories in writing, exhibited by the party, plaintiff or
defendant, or directed by the court to be propofed to, and afked
of, the witnefles in a caufe touching the merits thereof, or fome
incident therein. Alfo interrogatories are touching contempts
of writs, proceffss, and orders of court, whereupon the party
offending is to be examined concerning fuch contempt, &c.
As on hearings upon bill and arifwer no evidence is to be
admitted (except matters of record) but what arifes from the
bill and anfwer irfelf, fo when the parties proceed to the exa-
mination of witnefles, the caufe is determined by fuch evi-
dence as arifes from the depositions of witneffes examined
upon interrogatories. And both the plaintiff and defendant
may ordinarily exhibit interrogatories ; for when parties arc at
iffue, it is neceffary to confider as well what the ether fide may
examine unto, as what ourfelves can prove ; and fo counter or
crofs interrogatories may be prepared, if there be occafion.
All interrogatories mull be drawn or perufed and figned by
counfel, and they are to be fhort and pertinent, and neceflaiily
to the point. They mufb not be leading, as " did you not do or fee
fuch a thing, &c." If they are fuch, thedepofition taken thereon
will be fuppreffed ; and fo it is, where the interrogatories are
too particular, or point to one fide of the queflion more than
the other.
They muff be engroffed on parchment with double
ftamps, and are to be exhibited before any witneffes exa-
mined on either fide.
[Tor the purpofe of examining witneffes within twenty miles
of London {a), there is an Examiner's office, appointed ; but
(a) [Sed vide Ord. Chan. 109. miffion in London, or within
by which it was diredled that no ten miles, without fpccial order
commifiion to examine witneffes as aforefaid, (haU ftand fuppref-
be executed in London, or within fed.] But an idea in contra-
ten miles thereof, without fpecial diction to this order has for many
order firft obtained upon affidavit years prevailed ; few or no com.
made of the party's inability to minions to examine witneffes arc
travel, or other good matter ; and now execmed within twenty
ibatail depositions taken by com- miles of London. Hind, 3 15.
S 2 fa
260 EXAMINATION OB' WITNESSES.
for evidence, who live more than twenty miles from London,
a commiffion to examine witneffes is granted of courfe to take
the depofitions there (£).]
The examiner's office is to examine on oath the witneffes
on both fides that are brought before them in any caufe ; and
they have a right to examine all witneffes within ten miles of
London. And if any commiflion is made out, or witneffes
examined in that difirict, fuch depofitions will be fuppreffed
on complaint ; and the clerk who made out the commiffion
will ftand committed for mifbehaviour, and breach of the known
duty of his office, as happened in Mr. Snow's cafe to one of
the clerks, where the commiffion was executed at a tayern in
Chancery Lane.
When witneffes are examined in the examiner's office, the
plaintiff, after he has examined one or more of his witneffes,
may enter a rule in the houfe book to produce witneffes, and
give the defendant's clerk notice thereof, and at the fame time
mufl leave a note with the entering regifler as follows :
A. B. plaintiff. 1 6th January 1807. A day is given to
C. D- defendant, r the defendant to produce witneffes.
3 E. F. clerk for the plaintiff.
[Either plaintiff or defendant's clerk in court (whofe anfwer
is replied unto) after the caufe is at iffue by fubpcena y or appear-
ance gratisy to rejoin, may immediately enter a rule to produce
witneffes and proceed to examine (f).]
[When a witnefs refiding within twenty miles of London is to
be examined, interrogatories properly engroffed are firft to be
left with fome one of the examiners at his feat in the Exa-
miner's office •, this is termed filing interrogatories. When a
witnefs attends to be examined, a clerk from the Examiner's
office accompanies the witnefs to the publick office to be fworn
to the interrogatories before the fitting Mafter there, or before
any other Mafter out of office hours; the oath is adminiftered
in the ufual manner, the form whereof is as follows :
You (hall true anfwer make to all fuch queftions as fhail be
afked of .you on rhefc interrogatories without favour or affe&ion
to either party, and therein you (hall fpeak the truth, the whole
truth, and nothing but the truth. So help you God (d).}
[A jurata Hating the producing and fwearing of the witnefs
£0 the interrogatories with his name, the day and year when
fworn, is inicribed upon the interrogatories, to which the Mafter
before whom it is fworn fubferibes his name (*).]
(h) Hind. 314, id) Hind. 322.
b) I find. 3^9. {*) Hmd.522.
Before
EXAMINATION OF WITNESSES. j?6i-
Before the witnefs is to be examined, he is introduced into
the Six Clerk's office by the Examiner's clerk, and produced at
the feat of the adverfe clerk in court, where the Examiner's
clerk is to leave a notice in writing of the name and place of
refidence of every fuch witnefs, in order to prevent witnefles
from being perfonated, and to give an opportunity for crofs
examination.
[After the witnefs is fully examined, the depofitions are read
over to him, and the witnefs is at liberty to amend or alter any
thing ; after which he figns them ; and then (and not before)
the examination is compleat and good evidence ; the clerk in
court at whofe feat the witnefs is produced, fends the note of
the name and refidence of the witnefs to his client ; and if it
be necefTary to crofs-examine that witnefs, and crofs interro-
gatories for that purpofe be filed, the party producing the
witnefs is obliged to procure him to itay or return to be
examined (y*).]
But if no fuch interrogatories for crofs-examination are
filed, and he is not demanded to be crofs-examined at the fame
time, when he is under examination, if he once goes about his
bufinefs, the party who intends to crofs-examine, muft get him
examined as he can ; for the adverfe party is not in this cafe
bound to produce him over again to attend to be crofs-exa-
mined ; fince it was the party's fault he had not the interroga*
tories ready to have crofs-examined him, whilft he was under
this former examination.
[Plaintiff 's witnefs before he was crofs-examined feci-eted
himfelf ; his depofitions were ordered to be fuppreffed, unlefs
the plaintiff procured him to attend in a given time (#).]
[The examiner is to examine the deponent to the interroga-
tories directed feriatlm t and not permit him to read over or heat
read any other interrogatories until that in hand be fully
fmifhed ; much lefs is he to fuffer the deponent to have the in-
terrogatories, and pen his own depofitions, or depart after
he hath heard an interrogatory read, until he hath perfected
his examination thereunto (/>).]
[And if any witnefs fhall refufe to conform himfelf, the
examiner is thereof to give notice to the clerk of the other fide,
and to proceed no further in his examination without the con-
fent of the faid clerk, or order made in court to warrant his
fo doing (j).]
[The Examiners are themfelves in perfon to be diligent in
(/) Hind. 323. (/j) Ord. Chan. 105.
(s) 1 Dick. 288, (i) Ibid,
S 1 examination
2 6a EXAMINATION OF WITNESSES.
examination of witneffes, and not intruft the fame to mean
and inferior clerks (£).]
[They are to take cave that they employ under them in their
office none but perfons of known integrity and ability, who
fnall take an oath not to deliver or make known directly or in-
directly to the adverfe party or any others, fave the deponent
who comes to be examined in any of the interrogatories
delivered to be examined upon any examination by him
taken, or remaining in the Examiner's office, an extracT
copy or breviate be thereof, before publication thereof paffed,
and copies thereof taken. And if any fuch deputy clerk
or perfon fo employed, (hall be found faulty in the premifes,
he fhall be expulfed the office, and the examiner who fo
employed him ihall be alfo anfwerable to the court for fuch
mifdemeanour, and ?o the party grieved for his cofts and
damages fuftained theieby. And fuch folicitor or other per-
fon who fhall be difcovcred to have a hand therein, fhall be
liable to fuch cenfure as the court fhall find juft to infli£t upon
him (/).]
An Examiner was committed, and difcharged from his office
for fufrering the plaintiff to come up into the room and anfwer
the perfon's quefiions who was examined (m).
[No perfon is prefent at this examination but the officer,
and the witnefs; and it is therefore liable to many objections,
particularly as the Examiners now do the whole bulinefs by de-
puties, whofe offices are not cf that value as to induce perfons
properly qualified to accept thtm, and thofe who execute the
offices are in effect without any controul.}
[In examining of witneffes, the Examiner fhall not ufe any idle
repetitions or needlefs circumftances, nor fet down any anfwer
to the queftion to which the exam inant cannot depofe other
than thus : " To fuch an interrogatory this examinant cannot
depofe («)."]
[The Examiner is not ftri£lly bound to the letter of the in-
terrogatories, but ought to explain every other matter or thing,
which arifeth neceflarily thereupon^ for manifeftation of the
whole truth (a).]
[No re-examination of a witnefs upon the fame interrogatory,
and that he fpoke uncertainly on the firft examination, is to be
without leave of court So if a witnefs be examined by com-
miffioners in the country, he fhall not be examined again here
in court without fpecial order (/>)..]
(i) Ord. Chan. 105. («) Ord. Chan. 105.
(/) Ibid. (0) 4 Inft. 278.
(») Mofely 321c h) Wy. Praft. Reg. 196".
[Who*
EXAMINATION OF WITNESSES. 263
"[When there is reafon to fuppofe a witnefs will not volun-
tarily attend to be examined, recourfe mult be had to com-
pulfive procefs oi fubpeena ad tejlificand. which commands the
witnefs to whom it is directed, laying afide all pretences and
excufes, to be before the Examiner to teftify on the behalf of
the party requiring his teftimony (q).~\
[To o'btain this writ a precipe muft be left at the Subpoena
office, in the following form :
Subpoena A. B. to appear in Chancery, returnable immediate,
to teftify on the behalf of C. D. Tefted 12th July 1783.
Radcliffe, Solicitor (r).J
[This precipe being left at the Subpcena office, the writ is
made out in the following form, which, when fealed, the
folicitor calls for at the fame office.
Subpoena to teflify before the Examiner.
George the Third, &c. To A. B. greeting. For certain
caufes offered before us in our Chancery, we command and
ftri&ly enjoin you, that laying all other matters afide, and not-
withstanding any excufe, you perfonally be and appear before
us in our Chancery, immediately after the receipt of this writ,
wherefoever it fhall then be, to anfwer concerning thofe things
whi h Avail be then and there objected to you, and to do further
and receive what our faid court fhall have conlidered in this
behalf ; and this you may in nowife omit under the penalty
of one hundered pounds, and have there this writ. Witnefs
ourfelf at Weltminfter the twelfth day of July in the twenty-
third year of our reign. Courtenay and Ccurtenay.
lndorfed. By the court to teftify on the behalf of C. D.
Label. A. B. to appear in Chancery, returnable immediate,
to teftify on the behalf of C. D.
Courtenay and Courtenay (/).]
[The number of witneffes to be inferted in one fubpeena ad
tejlificand. is reftri£ted to three. Hufband and wife are con-
fidered as two diftinft perfons, and her chriftian and furname
muft be inferted accordingly. This writ is made returnable
immediate of courfe. The fervice of this fubpeena muft be in all
cafes perfonal ; if there be one witnefs only, then he procefs
itfelf fhould be left with the witnefs •, when there are two wit-
nefles, a label muft be perfonally ferved upon one, (hewing at
the time of fuch fervice the procefs itfelf under feal, and the
procefs under feal muft be perfonally ferved upon the other
ty) Hind. 326. (r) Hind. 326. (s) Hind. 327.
S 4 witnefs
S 6 4 EXAMINATION OF WITNESSES.
witnefs laft ferved. If there be three witnefles (nofubp&na can.
contain more) labels muft be perfonally ferved upon two of them,
{hewing the prccefs under fcal at the time of lervice, and the
•writ itfelf perfonally ferved and left upon the party laft ferved ;
and in that cafe the perfon ferving the procefs fhould take a
copy of the label in order to enable him to make an affidavit of
fervice of the writ at each of the fervices upon the feveral wit-
neffes ; one (hilling conduct money ihould be tendered. This
writ appoints no time or place whither the witnefs is to refort
for examination. It is therefore neceifary to ferve him with
a notice in writing, appointing the time and place of examina-
nation ; this notice fhould accompany the fervice of the jubpoena.
Hhe notice may be in the following form.
In Chancery.
Mr. A. 13.
Take notice that by virtue of a writ oifubpeena iffuing out and
under the feal of the high court of Chancery, to vou directed,
and herewith fhewn (or left) you are hereby required to appear
perfonally before C. D. one of the examiners of the faid court,
on Monday the 15th day of July inftant, by ten of the clock in
the forenoon of the fame day, at the Examiner's office in the
Rolls-yard, Chancery Lane, in the county of Middlefex, to
teftify the truth according to your knowledge, in a certain
caufe now depending, between E. F. plaintiff, and G. H. de-
fendant. Dated the eighteenth day of July 1784.
'J- I. K. foiicitor for the faid defendant (/)]
[The fervice of this writ fhould be a reafonable time before
the day appointed for the examination of the witnefs ; but no
witnefs, unlefs his reafonable expences be tendered him, is
bound to appear at ail ; nor, if he appear, is he bound to give
evidence until fuch charges are actually paid him, except he
rcfide within the bills of mortality, and is fummoned to give
evidence within the fame. (w).~]
If a witnefs thus ferved with jubpeena to teftify, and notice
as before ftated, he neglect or refute to attend to be examined,
you are to make an affidavit of fervice of the Jubpeena, which being
filed, you then apply to your Examiner for a certificate that
fuch witnefs is not fworn to the faid interrogatories. And
upon that affidavit and certificate, your counfel moves the court
of courfe for an order, that fuch witnefs do, in four days
after perfonal fervice, attend and be fworn to the faid interro-
gatories, or in default thereof is to ftand committed to the
(0 Hind. 328, [w) Hind. 328 & 329.
Fleet
EXAMINATION OF WITNESSES. 265
Fleet prifon. And fuch witnefs being perfonally ferved
with fuch order, and ftill refufing to be fworn and examined
to the interrogatories, upon affidavit being made and filed of
the perfonal fervice of the faid order, and the Examiner's cer-
tificate of his not being examined, your counfel moves again of
coirrfe, and obtains another order that fuch witnefs do Hand
committed to the prifon of the Fleet, which order you deliver
to one of the tipltaffs belonging to the court of Chancery ;
and he gets a warrant thereon figned by the Lord Chancellor ;
and by virtue thereof apprehends fuch witnefs, and then car-
ries and delivers him to the Warden of the Fleet, and he is to
remain in cuftody, not only until he has been examined upon
fuch interrogatories, but alfo paid the plaintiff his colts he has
been put to about him, to be taxed by the Mafter, befides the
tipllaff's and warden's fees for taking and detaining him.
The like method is taken againft a witnefs who is fworn to
the interrogatories, and refufes afterwards to be examined
thereupon.
[A perfon having attended under zfubpccrw as a witnefs, but
refufing to be fworn, was ordered to attend to be examined, or
ftand committed (ft)."]
[If a perfon whofe teftimony is material on the behalf of
any party to a fuit, be confined in prifon within twenty miles
of London, the fituation of the witnefs muft be reprefented to
the fitting Mafter at the publick office, or any other Mafter in
his abfence, requefting the Matter's attendance at the prifon,
before whom the witnefs may be fworn to the interrogatories.
A notice in writing fpecifying the title of the caufe, the name
and place of confinement of the witnefs, and the party's inten-
tion of examining that witnefs, on fuch a day muft be ferved
upon the adverfe clerk in court, by leaving a copy of fuch
notice with the clerk in court perfonally, or with his agent at
his feat in the Six Clerk's office, two days previous to the exa-
mination of the witnefs, in order to give the adverfe party an
opportunity of crofs-examining that witnefs_, if he be fo ad-
vifed. The Examiner (with whom the interrogatories for the
examination of the witnefs fhould be previoufly left) muft be
informed of the time and place when and where the Mafter
will attend j the Examiner ufually accompanies the Mailer,
bringing with him and producing the interrogatories filed in
the Examiner's office j and the witnefs being fworn thereto in
the common form, the examination is taken in the ufual man-
ner, and the depofitions and interrogatories returned by the
(*) II Vcf.20I.
9 Examiner
266 EXAMINATION OF WITNESSES.
Examiner to the office to be kept as in ordinary cafes until
publication paf.s in the caufe (v).]
[In like manner a witnefs refiding within twenty miles of
London incapable by ficknefs of attending the Examiner's
office to be examined, is attended at his place of abode by the
Mafter to be fworn to the interrogatories, and by the Examiner
to be examined. A notice in writing of the title of the caufe,
the name and place of abode of the witnefs, and the day and
place where the witnefs is intended to be examined, and on
whofe behalf, mufh be ferved upon the adverfe clerk in court
perfonally, or left at his feat in the Six Clerk's office with his
agent, two days previous to the examination of fuch witnefs,
to give the other fide an opportunity of crofs-examining the
witnefs, if thought neceffary fzjV]
"Where the examination is by ccnmijfion, after the oaths
are adminiftered, the commiffioners and their clerks begin to
execute the commiflion $ and having before them the interro-
gatories both for the plaintiffs and defendants, the commif-
fioners prefent muft fign their names at the bottom of both
the interrogatories, and then one of the commiffioners or clerks
draws up the ftile or title of the depofitions^ preparatory to
the examination of the witneiies, in paper.
Then the commiffioners call a witnefs before them, and caufe
all perfons but themfelves and their clerks and that witnefs
that is to be examined to leave the room ; and then they ad-
miniffcer to the witnefs his oath.
One of the commiffioners taking the interrogatories, and
producing them to the witnefs that is to be examined thereto,
adminifters the oath to fuch witnefs as followeth. The com-
miffioners may read the title of the interrogatories to fuch
witnefs, and then fay, " you are true anfwer to make to all
fuch queftions as fhall be aficed you upon thefe interrogatories,
without favour or affection to either party ; and therein you
fhall fpeak the truth, the whole truth, and nothing but the
truth. So help you God."
[The party fuing out the commiffion, has a right to examine
the firft witnefs, and for this purpofe the folicitor for that
party prepares a note containing the name, rank, or occupa-
tion, age, and place of abode of the witnefs, and the feveral
interrogatories to which he is to be examined. This note is to
be delivered to the comniiffioncre at the fame time the witnefs
is fent to them ; a fimilar note is ufually fent to the folicitors
(j) Hind. 330 & 331, (*) Hind. 331.
for
EXAMINATION OF WITNESSES. 267
for the other parties, that they may have the witnefs crcfs-
examined, if they think propur.]
The oath being admin iftered, the witnefs's name and place
of abode, addition, and age are to be writ in the fame paper,
under the title of the ''epofitions, &c. ; and one of t :e cora-
miilioners for the party producing the witnefs muft examine
the witnefs en the interrogatories, and not leave it to his
clerk j wherein he is to examine, but to one interrogatory at a
time, and (hall not read to the witnefs another interrogatory, till
he has gone through and anfwered the former. And this
commiflioner fhall likewife take down what comes from the
witnefs on his examination, and not permit him on his
own reading of the interrogatories to fet it down himfelf}
[The commifiioncrs for the other parties attending to the
depofitions, that every tiling pertinent to the queftion which
falls from the witnels may be tf.ken ; and that nothing may be
taken which does not fall from the witnefs ; and that the wit-
nefs may not be milled nor drawn from the queftion by the.
commiiTioner taking the examination.]
The depofition muft be carefully read over to fuch witnefs ;
and if upon fuch reading any thing is miUaken, that the witneiV
cannot fvvear to after he has been examined, the depofitions
muff be rectified ; which done, the witnefs muft fign his name
or mark to fuch depofitions as he is examined to.
The other parties may then examine the witnefs to any
point, by way of crofs-cxamination or original examination ;
and for this purpofe their folicitor ufually fends a note to their
conimiffioners to what interrogatories the witnefs is to be exa-
mined. The oath muft be adminiftered as well when he is
crofs-examinedj as when examined on behalf of the party pro-
ducing him.
A witnefs may be allowed to ufe fhort notes which he brings
with him to help his memory, though not the fubltance of the
depofitions, nor may he tranferibe verbatim fuch notes : And
the commiflioners ought not to afk any idle queftions, or fuch as
are foreign to the interrogatories, not fet down impertinent an-
fwers, but only what are material on the points interrogated to.
The names and additions of the witnefles, 8cc. and their de-
pofitions or anfwers are thus put down ;
A. B, of in the county of g er >t., aged
years and upwards, being produced, fworn, and examined on
the behalf of the plaintiff (or defendant) depofeth as followcth :
Imprimis. To the firft interrogatory this deponent faith, 8cc.
that, &c.
Jtcm. To the fecond interrogatory this deponent faith, Sec.
And
268 EXAMINATION OF WiTKLSSES.
And fo proceed through the reit of ihe interrogatories.
If a commiffion be adjourned to another day and place, and
witneffes are examined, the time and place where fuch exami-
nations were taken, ought to be mentioned and fet down in the
title of the refpedlive depof'tions.
[The witneffes to be examined at the execution of the com-
miffion may be produced by fummons from the corr.mifTioners,
if they will voluntarily attend ; or fummons and jubpoena to
teilify, if it is fuppofed they will neglect or refufe to attend
upon a fummons merely {a)-\
The fummons may be in the following form :
The Commiffioners'' Summons for Witneffes.
In Chancery. „ c f A. B. plaintiff.
; Between-' „ n ' , • 5 <.
t C. D. defendant.
Whereas we have received a commiffion iffuing out of and
under the feal of the high court of Chancery to us and others
therein named, directed for the examination of witneffes in a
caufe in the faid court depending, between A. B. plaintiff and
C. D. defendant : And whereas we are informed, that you,
whofe names are here underwritten, are material witneffes for
the plaintiff (or defendant) in this caufe j thefe are therefore
by virtue of the faid commiffion, to will and require you, and
every of you, feverally and perfonally to be and appear
before us, or any three or two of the faid commiffioners, at
the houfe of, &x. known, &c. in, &c. on the day of
next, then and there to be examined, and to teltify
your knowledge for and on behalf of the plaintiff (or defendant)
and you are then and there to attend and not to depart until
you have been examined on the part of the faid plaintiff, and
herein you are not to fail. Given under our hands, &cc.
To. N.M., P. R., S.T., E. F.
W. E., he. G. H.
[Thefe fummonfes muff be figned by two or more of the
commiffioners ; and directed to the witneffes by name, and
perfonally ferved upon and left with them feverally and refpec-
tively a reasonable time before the execution of the commif-
fion (£).]
But if a witnefs be unwilling to come, you muff gztzfulpcena
od teftificandum fealed.
[For this purpofe zpradte muff be left at the Subpoena office
jn the following form :
(a) Hind. 335 & 336. {I) Hied. 336 ft 337.
Suhfawa
EXAMINATION OF WITNESSES. 269
Subpoena A. B. to appear before C. D. and others, commif-
fioners, at fuch times and places as the bearer hereof {hall ap-
point, to teftify on the behalf of E. F.
G. Solicitor. Tefted 10th July 1783 (".-).]
[The form cf a Subpoena to iefify is as follows :
George the Third, &c. To A. B. greeting. We command
and ftrictly enjoin you, that laying all other matters afide, and
notwithftanding any excufe, you perfonally be and appear
before CD. (one of the commiflioners) and others, commif-
fioners appointed in our Chancery, at fuch times and places
as the bearer hereof fhall appoint, to leftify the truth in a cer-
tain caufe depending in our laid court, on the behalf of E. F. ;
and this you may in nowife omit under the penalty of one
hundred pounds. Witnefs ourfelf at Wcftminfter the 10th
day of July in the twenty-third year of our reign.
Indorfed, By the Court. Courtenay and Courtenay.
Label. A, B. to appear before C. D. and others, commif-
fioners, at fuch times and places as the bearer hereof fhall ap-
point, to teftify on the behalf of E. F.
Courtenay and Courtenay (d).~}
[The expence of this writ is five millings, if one or two
witneffes names be inferted ; and fixpence for the additional
label if three {e}.]
[At a private feal, the expences of this procefs is four mil-
lings extraordinary, and if the feal be opened, 2 I. 10 s. 6d.
esclufive of the ordinary expence (/").]
\Tht fubpeena is to be ferved upon the witnefs perfonally m
the manner above dated, delivering at the fame time the com-
miflioners' fummons, tendering at the time of fervice one mil-
ling for conduft money, or if the witnefs be at any diftance
from the place of executing the commiflion, his reafonable ex-
pences mult be paid or tendered. If a witnefs thus ferved with
fummons zndfubpana to teftify, negle&s or refufes to appear,
or appearing refufes to give evidence before the commiffioners,
or to aflign a fufficient reafon for withholding his teftimony, a
certificate of fuch witnefs's negle£t or refufal muft be procured
in writing from the acting commiflioners, and an affidavit made
and filed of the fervice of the fub poena to teftify, and the com-
miffioners' fummons (g) .
(r) Hind. 329. ( f) Hind. 339.
(d) Hind. 339. < Ki ) Hind. 340.
(e) Hind. 330.
[The
2 7 o EXAMINATION OF WITNESSES.
[The production of deeds, papers, &c. in the cuftody of a
witnefs may he enforced at the examination of a witnefs either
at the Examiner's office, or at the execution of a commifhon
to examine witneffes, by adding to the ordinary writ oifubpcena
to teftify, a claufe of requifition for that purpofe, which is
thence denominated z fub poena duces tecum. This writ is ob-
tained by leaving a praecipe at the Subpoena Office in the follow-
ing form :
Subpoena A. B. to appear before CD. and others commif-
fioners at fuch times and places, as the bearer hereof fhail ap-
point to teftify on the behalf of E. F., and bring with him and
produce (an indenture of fettlement bearing date the 15th day
of June 17^0, and made or mentioned to be made between
G. H. and I. K. of, &c. now in his cuftody.
L. Solicitor. Tefted'oth July 1783 (£).]
TThe writ of Subpoena Duces Tecum to teftify is in the following for r,;,
George the Third, Sec. To A. B. gentleman, greeting.
We command and ftrictly enjoin you, that laying all other
matters afide, and notwithstanding any excufe, you perfonally
be and appear before CD. and others, commiffioners appointed
in our Chancery, at fuch times and places as the bearer hereof
fhall appoint, to teftify the truth in a certain caufe depending
In our faid court, on the behalf of E. F., and to bring with you
and produce : t fuch times and places as aforefaid (defcribe the
deed, &c. thus) A certain indenture of fcttlement bearing
date the fifteenth day of June 1760, and made or mentioned
to be made between G. H- and I. K. of, &c. now in your
cuftody ; and this you may in nowife omit under the penalty
of one hundred pounds. Witnefs ourfelf at Weftminfter the
9th day of July in the twenty-third year of our reign.
Indorfed, By the Court. Courtenay and Courtenay.
Label. A. S. gentleman, to appear before C. D. and others
commiffioners, at fuch times and places as the bearer hereof
frail appoint, to teftify on the behalf of E. F., and bring with
him and produce (an indenture of fettlement bearing date
the 15th day of June 1760, and made, 8cc. as let forth in the
body of the writ) now in his cuftody.
Courtenay and Courtenay ($)."]
[The expence of this writ is the fame as the foregoing writ
oifubpeena to teftify before commiffioners ; but if the defcrip-
tionof the deed or other document to be produced, occafions
the writ to run an extraordinary length, a charge is made in
proportion (.£).]
(/-) Hind. 341/ (i) Hind. 341 & 342. [i) Hind. 342.
EXAMINATION OF WITNESSES. 27 1
The Exhibits nu-fi be indorfed after the following manner.
Between A. B. plaintiff, and C. D. defendant. De-
cember 1767. At the execution of a commiihon
for examination of witnefles in this cauSe, this
deed or parchment, or piper writing was pro-
duced and (hewn to E. F, and by him depofed
unto at the time of his examination to the
third interrogatory on the plaintiff's part, and
was alfo produced and fhewn unto, &c. and by
him depofed, Sec. before us.
E. F.
G.H.
[The witnefTes mud feveraily fubferibe their chriftian and
furnames, or marks to the paper draughts of their refpe&iVe
depositions, and alfo to the engroffment of fuch depo-
fitions (/).]
When the witnefTes are examined, the depositions are to be
engroffed on parchment by the clerk in like manner as the in-
terrogatories, and examined carefully with the paper draughts ;
after which the commissioners fign fuch Schedule or fkin of
parchment of the examination, and alfo the interrogatories \
and then bind them up together with the commiffion, ufually
(called making up the commiffion) with fome red tape, or other
firing, Setting all their names and feals upon the fame •, but
before the commifhon is Sealed up, they are to indorfe upon
the back of the commiSTion towards the middle thereof, the execu-
tion j to which they likewife fubferibe their names as followeth :
The execution of this commifTion appears in a cer-
tain fchedule (or fchedules) to this commission
annexed. E. F.
G.H.
When the commiflion is executed and made up, the paper
draught is to be alfo Sealed up as above, and delivered to one
of the commillioners for the party who has not the carriage of
the commiffion to keep ; and Sometimes it is cut in two in the
middle, and one part thereof is delivered to one of the plain-
tiff 5 s commifhoners to keep, and the other part is delivered
to one of the defendants' commiffioners to keep ; and the com-
millioners mufl deliver the commiffion, the label thereof hang-
ing ou: at the end, perfonally, to the perfon that brings it to
town, who is to deliver it to the Matter in Chancery, or more
(/) Bac. Ord> 63. Hind. 349.
ufually
273 EXAMINATION OF WITNESSES.
ufuallv to the clerk in court who had the carriage of the com-
million, who indorfes the fame thus :
23d January 1776. Upon the oath of L M. before.
When a perfpn fwears it, he goes before a Matter com-
monly at the pubiick office, where he makes oath, that he
received the commiffion from the hands of two or more of the
commifTioners therein named, and that it has not been opened
nor altered fince he fo received it.
But if the commiflion is carried by one of the commiffioner?,
no oath is required, and you need only ir.dorfe,
23d July 1767. Received by the hands of E. F. one
of the commifTioners.
When a commiffion is executed abroad, one of the commif-
fioners, or perfon that received it. from one or more of the
commiilioners, mud deliver the commiffion executed into the
Matter's pubiick office here in England, and make the ufual
oath that he received it from the hands of one or more of the
commifTioners, and that the fame hath not been opened nor
altered fince he fo received it ; but if one of the commifTioners
brings over fuch commiffion, he need make no oath, but the
plaintiff or defendant's clerk in court only indorfes the day,
month, and year on fuch commiffion, and underneath writes,
by the hands of A. B. one of the commiffimers.
On delivery of the commiffion, the examinations or depo-
fitions are not to be opened or copied until publication is,
actually paffed.
If the plaintiff exhibits his interrogatories, and the defendant
neglects to exhibit any, and his commifTioners attend the exe-
cution of the commiffion, whereby they have an opportunity of
feeing and hearing every thing that is proved on the plaintiff's
part, and yet all this while they have exhibited no interroga-
tories, and after all this, the defendant moves the court for a
new commiffion upon fuggeftion that he had no opportunity
of examining his witneffes at the laft commiffion ; in this cafe
the court will but very rarely, and that upon fpecial circum-
fiances, grant the defendant another commiffion (m). But if
he has put in interrogatories, and his commifTioners attend
without examining any witneffes, the court may grant or
deny him another commiffion as the circumftances on the affi-
davit of the commifHoners fhall appear •, his commifTioners
ought to withdraw ; and care mutt be taken if new commiffion
is granted, that neither party add to, nor alter, their interro-
(i») Vide 1 Cha. Ca. 274. 1 Dick. 18.
gatories.
EXAMINATION OF WITNESSES. 273
gatories. They muft examine to the eld interrogatories ex"
hibited at the former commiffion ; and aie not to add new one"
without the fpecial leave of the court ; and then they are to b e
fettled by the Mailer, and are never fuffered but in extraordi-
nary cafes; and the party praying this commiffion mult pay all
the charges thereof, unlefs the other fide examines any witnefles
of his own; in which cafe he is to bear the part of the charge («).
If a party examines fome witneffes in town, and others by
commiffion, he is not obliged to file his whole fet of interroga-
tories in the Examiner's oifice ; but fuch alone as he has occa-
iion for in town ; elfe it would be paying for copies of
whole interrogatories twice over.
If interrogatories arc exhibited in the Examiner's office, and
witneffes examined thereon, either party may, without any order
for that purpofe, exhibit new interrogatories for further exa-
mination of the fame or other witneffes (0) : But when a com-
miffion is iffued, no new interrogatories can be exhibited before
the commiffioners without motion and leave of the court (p.)
[The qucflion was, whether after a joint commiffion exe-
cuted, new interrogatories might be exhibited to new witneffes.
The Mafter of the Rolls upon a conference with the Lord
Chancellor, was of opinion, that new interrogatories might be
exhibited into court for' the examination of new witneffes at
any time before publication, although there had been a joint
commiffion executed (q).~]
[And the ]Tame witneffes may be re-examined before the
Mailer upon different interrogatories by order. 13 Vef. 360. 1
[A motion was made before publication for liberty to re-
examine a witnefs, upon an affidavit by him, that through mif-
take as to the time he had fubmitted to be examined without
looking at papers, which would enable him to anfwer more
fully and precifcly. The court made the ordejr. 13 Vef. 20*0,
ttWy. Pra<3. Reg. 420.]
[The court allowed the re-examination of a witnefs after pub-
jication upon his own application and affidavit, to correct a rhif-
take ; but he was confined to that ; the court not permitting an
entirely new examination. 13 Vef. 285. Vide more on this
head under title " Depo/i:ions."]
( n ) Fide I Dick. 2 «r- Reg. 420. Wy. Edit, this dif-
(°) Note. [But by Ord. Chan. tincYpn is r.ot made, but the
IC3. when witneffes are examined rule is Lid down generally that a
in court, upon a fchedule of in- witnefs is not to be re-examined
terrogatories, there can be no new either in chief before or on ac-
interroga'.ories put in to examine count, &c. after hearing, witk-
the fame witneffes.] out leave and order of the Coart«
(/>) fre. Cha 386. 1 Eq.Ca. et vide 13 Vef. 360.
Abr. 233. But in the lrmft. (q'\ I Dick. 6.
Vol. I. T And
^74 EXAMINATION OF WITNESSES.
And on a fupplemental bill, the court will, upon motion*
give leave to add to the fir ft interrogatories, i*o as the new in-
terrogatories contain nothing but what relates to the fupple-
mental matter (r) .
If -either party have a commiffion de novo, after he hath
examined on a former, he muft examine on the fame interro-
gatories as were exhibited by him in the former commiffion \
and no other interrogatories can be admitted without an order
or confent of parties.
If leave is given to examine a witnefs after publication, and
before hearing, a Mafter is commonly ordered to fettle the in-
terrogatories, and that they may be to fuch points only as were
omitted before, and as are now ordered to be examined unto ;
unlefs it be merely to prove an exhibit, and the interrogatory
r.as before filed.
And all interrogatories for p-roving particular points
needful, upon a reference to a Mafter, fhall be directed by the
Matter, and fhall be to fuch points only.
And though by the orders of the court, the parties are to
make their proof before publication and hearing of the caufe^
yet after hearing if there be a reference to a Mafter for the dating
an account or fuch like manner, and he fhall find any particular
joints and cireumftances needful to ground his report upon,
which are not fully proved, nor could properly be examined
to before the hearing of the caufe, he may direct the parties to
draw interrogatories to fuch points, or cireumftances only ;
and fuch witnefles are ufually examined before fuch Mailer
upon fuch interrogatories, if the witnefs be or rcfide within
ten miles of London ; but if farther off, and the parties defire
it, he may by his certificate direel: a commiffion into the
country, which is to be made out by the plaintiff or defendant's
clerk that defire fuch commiffion. And on the return of fuch
commiffion, publication fhall forthwith pafs according to the
courfe of the court (s).
In cafe of a profecution of a contempt for breach of an
order of court, or otherwife, grounded upon an affidavit, the
interrogatories fhall not be extended to any other mat-
ter than what is comprehended in the faid affidavit or order.
And if any other fhall be exhibited, the party examined may
for that reafon demur unto them, or refufe to anfwer them.
A commiffioner may be examined as a witnefs, but then he
muft he examined before he is fworn as a commiffioner ; and
if others be examined before him in his prefence, he cannot
be examined afterwards, having heard the former depofitions ;
and for that reafon a commiffioner was examined in court, his
(r) Ord.Chan. 126. (*) W Ord, Chan. 156.
former
EXAMINATION OF WITNESSES. 275
former depofitions being fupprcffed (>). But after he is exa*
mined, he may then join and proceed in executing the ccra"
million.
[Care muft therefore be taken that there are at leafr. two com-
miflioners not neceffary witnefies ; otherwife the commuTion
cannot be executed.]
If it be neceffary to examine an engroffing clerk as a witnefs,
he muft alfo be examined before he is fworn as clerk.
If a plaintiff wants to examine a defendant as a witnefs, he
muft obtain an order by motion or petition for that purpofe ;
which order is of courfe ; and muft be ferved on the adverfe
clerk in court ; alfo the defendant may obtain the like order to
examine a co-defendant as a witnefs for him ; but all thefe
orders are upon fuggeftion that the defendant is not concerned
in point of intereft in the matters in queftion, and they are
never granted, but with a claufe faving juft exceptions to the
other fide.
[An order will be made to examine a defendant, though it
appears on the face ef his anfwer, that he is interefted ;
becaufe he may have relcafed fince putting in his anfwer, and
the order is made, faving juft exceptions (w).~\
[This order T or examining a defendant as a witnefs muft be
produced at the execution of the commiilion, or at the exa-
miner's office, or wherever the examination is to be taken
when the defendant attends to be examined •, without which
he cannot be examined ; for it is by virtue ol that order,
and the authority given to them by the court, the commiffioners
or examiners are empowered to examine a defendant. \\ ith-
out the actual production of the original order regularly
paffed and entered, they muft not prefuiue to examine a
defendant (»)•]
[If the teflimony of a defendant is neceffary to the plaintiff 's
cafe, the plaintiff ihould not reply to his anfwer; or having
replied to it, the replication may on motion be amended L.y
ftriking out the name of fuch defendant (jy).]
[Plaintiff cannot examine a co-plaintiff, becaufe if the fuit
mifcarry, they are liable for the cofts ; and it is their own
choice that they are made pla ntiffs (z). But defendants are
forced into the caufe ; and if their being parties 11 Oil! exclude
their teftimony, any man might deprive another ot his defence
by making his molt material witnefs a co -defendant (a).]
(/) 2 Cha. Ca. 79. (y) 2 Fowler 100.
(w) Leev. Atkinfonin Chan- (z) t P.W.596.
ce, 7- (a; Pre. Cha. 4.1. Gilb. 98.
(*) Hind. 357.
T 2 A defendant
a;<5 LXAMINATION OF WITNESSES.
A defendant by order may examine the prochein amy, but not
one of the plaintiffs (c).
[A defendant was allowed to examine a plaintiff, he being a
trufleej and the bill in nature of a bill of interpleader (d).]
[At the execution of the commiffion for the examination of
witnefles, one of the witnefTes demurred to being examined.
The commiffioners returned the demurrer with the commiffion.
The commiffion and return were ordered to be delivered to the
two fenior fix clerks, not towards the caufe, who were to copy
fo much of the interrogatories as was demurred to, and fo as
not to difclofe any part of depofition?, and then to feal it up, and
to deliver it to the fix clerk in the caufe (e).]
[A witnefs demurring to interrogatories is entitled to a copy
of them (/).]
[If the witnefles are foreigners, the interrogatories fhould be
interpreted to them, and their anfwers interpreted at the time,
and taken down in Englifh (g) .]
[Upon hearing counfel for the devifee and for the regifter
of the prerogative court, it was ordered that on the devifee's
giving fecurity to be approved by the judge of the faid court,
to return the will in fix weeks from the delivery thereof, the
will fhould be delivered to the devifee to be produced at the
commiffion (£).]
[With refpedt to the execution of a commiffion to etcamine
witnefles abroad, it requires all of the formalities obferved in
the execution of a commiffion to examine witnefles in England,
with an exception only of a few particulars, which the diitance
of place unavoidably occafions (?').]
[A commiffion being granted to examine witnefTes at
Algiers, the plaintiff' died, by which in flricknefs the fuit
abated ; but as the witnefles were examined there before notice
of the plaintiff's death, the examination was held regular (£).]
[The depofition of witnefles of the Gentoo religion fworn
according to their ceremonies was read as evidence in the
caufe (/).]
Witnefles are fometimes examined in perpetuam rei memoriam
to preferve their teltimony in cafe of death, &c. ; and theis
examinations may be taken either in court, or by commiffion 5,
(c) Mof. 312. {h) I Dick. 65. 6 Vef. 135.
(dj Arab.* 293. fed vide I Vern. 802. Ambl. 343. 3B1-0. CC. 263.
130. 2 Dick. 485. 7 Vef. 292.
(e) I Dick. 96. (0 Hind. 361.
(/) Wardely v. Dent. (I) 3 P. W. 195.
{g) Lord Bclmore v. Andeiion (/) 1 Atk. 21.
in Cbaucery, 24 July 1792.
2 and
EXAMINATION OF WITNESSES. 277
and the method of obtaining fuch a commiffion is by filing 3
proper bill for that purpofe.
When lands are devifed by will from the heir at law, and
there is no occafion or opportunity to prove or eftablifh it at
law, it is often neceffary to prove fuch will in Chancery to
perpetuate the teftimony thereof ; the way to do which is to
exhibit the bill againft the heir at law, and fet forth the will in
bac verba. And the defendant having anfwered, they proceed
to iflue as in other cafes; and then examine the witnefles to
the will, or prove their hands if they are dead. The will (if
witnefles are examined in town) mult be left in the examiner's
office to be examined to, which done, and publication pafTed,
the caufe is at an end ; an order or rules being fir ft obtained
for publication. And the defendant who is the heir at lew,
and examines no witnefles touching the validity of the will,
may give notice of motion, for the plaintiff to pay him his
coils, to be taxed by a Matter, which the court ufually orders.
[Leave was given to a plaintiff on a bill to perpetuate the
teftimony of witnefles to fue out a commiffion to examine
witnefles, though no anfwer were come in. 1 Dick. 352.1
{A witnefs was examined at the trial of an ejectment ; a new
ejectment being brought, (he was examined to perpetuate the
teftimony upon the fame interrogatories, as thofe upon which
the former witnefles had been examined, and her teftimony
was ordered to be perpetuated (m).]
Though the depositions are not ordinarily to be publifhed
while the witnefles liye, yec. in fome cafes, as byconfent of parties,
or upon oath, that the plaintiff has fome trial at law, wherein
he (hall need them, and that the arkmeffes are not able to travel,
or for other good reafons, the court will fometimes (though
very rarely) order publication in the lifetime of the witnefles ;
and then the party may exemplify the depofitions, and they
may be given in evidence in any other court by order of thio
court.
[Depofitions of a witnefs examined de bene ejfe were directed
to be publifhed in order to be ufed at the trial at law, the
witnefs being aged, and infirm, and unable to travel («).]
Thefe depofitions are not to be given in evidence, or made
ufe of againft any others, but the defendants who wtrefub-
posnaed to defend the matter, or fome claiming under them,
whofe intereft accrued fince the bill preferred.
Though there be goods and chattels devifed by the fame will,
whereby lands are devifed., yet the proving thereof in the
(w) 1 Dick. 2ZS' («) 1 Dick. x8a.
T 3 fpirituaj
27S EXAMINATION OF WITNESSES.
fpiritual court is of no avail in refpecl of the lands, and this
court may prohibit the fpiritual court to meddle in the proof,
any farther than concerns the goods or perional eftate, &c.
A defendant demurred to a bill to perpetuate, See whereas
he fhouldnot hive demurred, but cither afientcd by his anfwer
to examine, or fhew fuificient caufe why v/itnefTes fhould not be
examined, and left it to the consideration of the court whether
the caufe be fufficient or no, and the defendant was accord-
ingly ordered to withdraw his demurrer, and put in an anfwer,
and thereby either confent to fuch examination, or mew caufe
to the contrary (o).
The depofitions of a witnefs who was examined in perpetuam
rei tnetnor'iam were fuppreffed on petition after his death, and
the examiner difcharged, and committed for foul practice and
irregularitv in taking them, the plaintiff being fuffered by the
examiner to initruct him, and the witnefs being proved cor-
rupted j and as he had been examined on a trial to the fame
points, plaintiff might give evidence of what he fwore (p).
Examination de bene effe is ufed in every other bill as well as
that to perpetuate teftirnony j as where one man brings a bill
againft another, and hath a molt material witnefs to examine j
upon affidavit that this witnefs is in a languishing condi-
tion, or in danger of d)ing before he can be examined in chief,
or where he is going a long voyage, from whence he cannot
return by the time he is to be examined in chief, and to which
place he is bound, and cannot pcfiibly ftay, in either of thefe
cafes upon motion or petition, and making an affidavit of fuch
witnefs being very old, or fick and infirm, or going fpeedily
beyond fea, and is a very material witnefs for the plaintiff, the
court never denies to make an order to examine, fuch a witnefs
de bene ejfe t faving juft exceptions to the other fide, fo as to be
valid if the party interelted has not an opportunity of examining
him in chief.
A witnefs was ordered to be examined debene ejfe, on affidavit
that the thing examined into lay only in the knowledge of the
witnefs, and was a matter of great importance, though no affi-
davit of the witnefs being old or infirm. 3 P. W. 77.
3Mof. 389. Jephfon v. Greenway in the Exchequer, Mich. 1784.
[The fame order was made on a fimilar affidavit in Parfon
v. Ward, in Chancery, 2d feal after Hil.Term 1785,01) the au-
thority of thefe cafes ; but the lord Chancellor faid, the affida-
vit on which the application is grounded mull explain how it
arifes that the wicneis is the only perfon who can prove the
(?) Southallv. Peryn, 26 Eliz.j (j>) Mo(. 327.
fame 5
EXAMINATION OF WITNESSES. 279
fame, or a material part of the cafe of the party applying.
Vide 2l3ro. C.C. $4.1.
[The court will not grant this order on the affidavit of
the agent, that he was informed by the witnefs he could prove
the facl:, and ft.atmg his belief that no perfon can prove it.
33 Vef. 261.]
[Motion to examine witneffes de bent ejfe except in certain
cafes, as upon the ground of age, requires nonce {q).~\
[The affidavit mud be either that the witnefs is of the age of
feventy, or the only witnefs to the particular fact j or if upon
the ground of health, in a dangerous (late (r).]
[The age at which a witnefs may be examined de bene ejfe is
70 ; but where the parties lived in Virginia, and confcquently
it would be long before they were ferved with procefs, and
they might have difregarded it ; a witnefs of 60 was allowed
to be examined de bene ejfe (s) .]
[A witnefs was examined de bene ejfe, on affidavit that he wa$
gone to Scotland {*).]
If the party interefted (hew fufficient caufe why a witnefj
fhould not be examined de bene ejfe, then the plaintiff is to
defift from examining fueh witnefs.
If by commiffion, he may examine ex parte ; or the defendant
may come in by appearance and join in a commiffion, if he
pleafes; and then 14 days notice is given of executing the
commiffion ; and the defendant may by interrogatories crofs-
examine fuch witnefs, if he think fit.
[A witnefs was examined de bene ejfe, before appearance 5
defendant appeared and anfwered ; the witnefs furvived 18
months *, the depofitions had been publiihed in purfuance of an
order upon confent. The plaintiff after hearing, infilled upon
reading the depofitions ; but the Chancellor feemed of opinion
they ought not (w).]
[After anfwer, defendant may examine witneffes de lehe
efe (*).]
[But a defendant cannot obtain an order to examine a witnefs
de bene ejfe before he has put in his anfwer (j).J
(q) 8 Vef. 3 ! . tviU not be granted, although not
(r) Ibid, {qua. Whether upon within any of thefe three cafes.
a queftion of legitimacy depending 13 Vef. 56.)
upon a chain of diilincTt ciivum- (s) Ambl 65. videK Vef. 31,
fiances in the knowledge of dif- (/) 1 Dick. 382.
f treat individuals, and the defend- (w) 1 Bro. C. C. 84.
ant (an infant) is kept out of the (x) 1 Dick. 92.
way, an examination de bene efe \y) 2 Fowl. 130.
T 4 Depofiticiw
2 8o EXAMINATION OF WITNESSES.
Depofitions to be taken de bene ejfe (hall not be publifhed
without affidavit of the death of the witnefs, or that he could
not be examined in chief (z).1
[A witnefs was examined de bene ejfe on a commiflion ex
parte^ and died before he was examined in chief; the commif-
fion was returned, but loll. An order was made on the com-
rniffioner in whole cuftody the paper draught of the depofition
remained fealed, to return the fame unopened \ and that the fame
mould be delivered to the fix clerk unopened., and be engrofled ;
and that fuch engroffment mould be filed and made ufe of, as
the original depofition might have been (a).~\
[Witnefs having been examined on his going to the Weft
Indies, and being afrerwards in Ireland, held he muft be exa-*
mined in chief (£).]
[A witnefs was examined de bene ejfe ; at the time he was
examined he was difintevefted ; he afterwards became interefted
by the death of his brother. His depofitions were ordered to
be publifhed (r).]
[The order to examine witneffes de bene ejfe gives liberty to
examine fuch and fuch witneffes nomiiiatim. This order is to
be conftrued ftricTly, and authorizes the examination only of
the perfon named therein ; the examination is taken in the fame
manner as the examination of a witnefs in chief, either at the
examiner's office by producing the order to the examiner,[or by
commiflion in the countiy for the purpofe of examining the
witneffes named in the order, in exclufion to all others ; all the
formalities of notice, ckc. tiled in the examination of witneflea
in chief mull be complied with, in the examination de bene
ejfe ( may be enforced byprocefs
Zitfulpcrna (?.'}.
[This writ is made returnable on a day certain, as well out
of as in term, purfuant to the .order [o).\
[The bociv of the writ is in manner and form the fame, as a
fubjeena to teitify before the examiner (p).~]
[T; e return of this writ mould be the day on which the
cauie is fet down to be heard. The-fabpam to hear judgment^
will fuiTiciently afcertain that time, and this procefs to teftify
ihould not be applied for, until the fubpeeya to hear judgment is
ferved, and the day i^r hearing exactly known (q).'j
\AJ~utpiv?m to teftify viva voce at the hearing of a caufe, re-
quires the fame perfor.al (r) fervice as a fubpoena to teftify in
other cafes; every circumftance to be obferved in ferving the
latter may be incidental to the former, fuch as a tender or pay-
ment of fufneient money to bear a witnefs's (s) expences, ferviee
a reafonabk time before the day to appear and give evidence,
Objections to the evidence of a witnefs, refpect either his
competency or his credit ; therefore when publication is part,
and the depofitions copied and delivered out, if either party is
minded to examine to the credit of any of the wrtnefles, the
way is (for the rule of evidence is the fame in equity as at law,
if the party cannot be good evidence in law, no more can he be
in equity) they rnuft file objections or articles fo called in the
examiner's office •, which muft contain in fubftance the objec-
tions made to the -reputation of the witnefs, as in cafe of felony,
burglary, pillory, perjury, or forgery, or any other criminal
cafe that would difable the party from being a good witnefs at
common law •, or thefe articles may be founded on the parties
leading a lewd life, or being a common drunkard, or fwearer,
or of ill repute and character in his neighbourhood, a common
vagabond, a man unknown, of no abode, or fuch like. Though
thefe latter obje&icns feldom come to any thing ; for notwith-
standing all this the man is a legal witnefs, and the court will
hear his evidence and judge of the probability and improbability,
(77i) t Dick. 49. (& Hind. 372.
(«) Hind. 371. (r) 1 Stra. 510,
(0) Hind. 3,7 1. (x) Stra. 1054.
(p) Hind. 371, (/) Stra. 1150.
[The
EXAMINATION OF WITNESSES. 283
[The leading ftep towards an inquiry into the credit of a
witnefs is the preparing and filing objections or articles in the
examiner's oihce, if the depofitions impeached be taken in
town ; or in the fix clerks office when the depofition is taken
by commifhon : and in either cafe the objections or articles pro-
perly ingrofled fhould be annexed to the depofitions in the re-
fpective offices where the depofitions are filed ; though it fhould
feem if the depofitions objeoied to be taken by commiffion, and
the examination of the witnefles to the ci dil He in town, the
articles fhould be filed as well in the examiner's office as in the
fix clerks office, where die depofitions are filed, and foe
converfo (iv)]
[After publication, you cannot examine to the competency
of a witnefs unlcfs where the abjection to the competency arofe
from a matter that came to the knowledge of the party after ex-
amination, and then it muft be on a fpecial application ; and
though after publication you may examine to the credit of a
witnefs, yet the court will not grant a commiffion for that pur-
pofe to foreign parts, but under very fpecial circumflances (*).]
[The time to examine to the credit of a -witnefs is after pub-
lication is parted, and the application for it is of courfe, and not
founded on affidavit. But if the party ftayed a confiderable
time after, and did it merely for delay, it might be a ground
to dilcharge the order (v).]
[After publication puffed, liberty was given to exhibit arti-
cles as to the credit of a witnefs, who had been crofs exa-
mined by genera! interrogatories, and as to fuch particular facts
only as are not material to what is in iffue in the caufe (z).]
[The examination to the credit of a witnefs can only be by
order on fpecial application with notice to the party, whether
before or after publrca f ion (a).
The articles may be in the following form , and being engrofTed
upon parchment with an half crown flamp, the examiner or
clerk in court with whom the articles are lef ; to be filed, will
annex them to the depofitions impeached, and file them accord-
Articles exhibited by A. B. complainant in a certain
caufe now depending, and at iflue in the High Court
of Chancery, wherein the faid A. B. is complainant
and C. D. defendant, to difcredit the teftimony of
E. F., G. H., and I. K., three witnefles examined before
L. H. Efq. one of the examiners of the faid court on
the part and behalf of the faid defendant.
I ft. The
(w) Hind. 374-375«
(*) 8Vef. 324.
( x ) 3 Atk. 643.
(a) 12 Vef. 406.
(j) 2 Dick. S33-
8f* EXAMINATION OF WITNESSES.
iff. The faid A. B. doth charge and alledge, that the fa^d
JL F. hath fince his examination in the faid caufe owned and
acknowledged, that he is to receive or be paid, and alfo that
he doth expeel a considerable reward, gratuity, recompence, or
allowance from the faid defendant, in cafe the faid defendant
recovers in the faid caufe, or the faid caufe be determined in
his favour, and that the faid E. F. is to gain or lofe by the
event of the faid caufe.
2nd. The laid A. B. doth charge and alledge, that the faid
G. H., I. K.» are perfons of bad morals, and of evil fame and
character, and that they are generally reputed and efteemed
fo to be, and that the faid G. H., I. K., are perfons who have
no regard to the nature or confequences of an oath, and that
they are perfo; s whofe teftimony is not to be credited or
believed (£).]
[The title of thefe articles is to be varied, if the depofi-
tions are taken by comniilhon, thus :
Articles exhibited by A. B. complainant in a certain caufe
depending and at iffue in the High Court of Chancery, wherein
the faid A. B is complainant and C. D. defendant, to difcredit
the teftimony of £. F. and G. H. two witneffes examined by
virtue of a commifTion ifmed out of the faid court to I. K.
and others directed for the examination of witneffes in the faid
caufe upon certain interrogatories exhibited before them for
thatpurpofe ; and which faid witneffes were examined in the
faid caufe on the part and behalf of the faid defendant (r).]
[The articles being filed, and a certificate thereof procured
from the examiner or fix clerk with whom they aye filed, the
court on application by motion or petition of courfe grounded
upon the certificate, will give leave to the party applying to
examine witneffes thereon, and a commifTion to examine wit-
neffes in the country. A copy of the order mufl be ferved upon
the adverfe clerk in court perfonally, or left with his agent at
his feat in the Six Clerks office, fhewingat the time of fervice
the original order paffed and entered ()•]
[After the defendant has been examined on interrogatories,
and publication palled, the plaintiff ought not to have a com-
miffion to examine witnefles, in order to falfify the defendant's
examination, this tending to multiply caufes, and make them
endiefs (q).~]
[In all cafes of a crofs bill filed after the original caufe has
been proceeded in, a motion to enlarge publication fliould be a
fpecial motion on notice, that the court may judge of it on
, circumftances *, and not of courfe, as it is where die original
caufe is not proceeded in ; for otherwife it would be eafy to
delay the hearing of a caufe by keeping this up (r).]
[Where the defendant in a crofs bill, who is plaintiff in. the
(0) 1 Vern. 253. (g) 3 P.W. 413.
(p) 8Vef. 3 15. i Dick. 6. (r) 2 Vef. 336.
1$. contra. 1 Dick j8.
Vol. I. U origins]
190 PUBLICATION
original bill, is in contempt for not putting in an anfwer to the
crofs bill, it is irregular to move to ftay proceedings in the
original caufe, until fuch anfwer comes in, but the plaintiff in
the crofs bill may have publication in the original caufe enlarged
to a fortnight after the anfwer to his bill is come in ; the
general rule of the court being not to ftay proceedings, but
publication only (j).]
[A party will fometimes fet down the caufe for hearing, and
afterwards enlarge publication beyond the day on which the
fame is fet down to be heard. An application muft be made
in that cafe to adjourn the caufe for a certain time, and the
order thereon mould be ferved in the ufual manner upon the
adverfe clerk in court before the day on which the caufe is to
be heard, otherwife the caufe when called on would be ftruck
out of the paper : of this application, notice in writing feems
necefTary to apprize the adverfe party therewith 5 and fuch
notice muft be ferved upon the clerk in court for the oppofite
party, perfotially, or at his feat in the Six Clerk's office upon his
agent there (/).]
[fn the vacation, the application in any cafe to enlarge pub-
lication may be by petition to the Mailer of the Rolls, left
with his fecretary in the Rolls-yard, annexing thereto an affi-
davit in cafes where it is necefTary (w).]
("Where the application is by motion, an affidavit of fervice
of notice in writing muft be made and filed in like manner as
the affidavit upon which the motion is founded ; an office copy
as well of the laft mentioned affidavit, as of the affidavit of the
fervice of the notice, muft be taken from the affidavit office j
for no other copy can be read in court (a:).]
[When any of the depofitions are taken by the Examiner,
a copy of the rule topafs publication, or a copy of the order to
enlarge it, fhould be ferved upon him, or his deputy at the
Examiner's office (jy).]
[So where the depofitions are taken by commifnon, and re-
turned into the Six Clerk's office from whence the commiffion
iffued, the order to enlarge publication is ferved upon the
adverfe clerk in court, in whofe cuftody the depofitions are, by
leaving a copy of the order with him perfonally, or with his
agent at his feat in the Six Clerk's office, mewing at the time
of fervice the original order (z).]
[All orders to enlarge publication mould be obtained and
{,) 1 Atk. 21 & 2qi. <*) Hind. 386-
(#) Hind. 385' & 6c 0) Hind. 381.
(w) Hind. 3$$. («) Hind, 385,
fervci
PUBLICATION. 291
ferved as well upon the adverfe clerk in court as upon the Ex-
aminer, on or before the day on which publication actually
pafTes in the caufe (a).]
[The publications of depofition taken in perpelttam ret memo-
rnvn in nowiie differs from the mode of publication in ordinary
cafes. A fuit to perpetuate teftimony feeking no further
relief than preferving and recording the teftimony of the
witneffes examined, clofes witn the publication of the depo-
fitions ; and the defendant is intitled to move for his cofts
occaGoned thereby after publication, upon giving notice
thereof in writing in the ufual manner to the adverfe clerk
in court (£).]
As concerning publication of depofitions taken de betteejfe, it is
when the party is either beyond fea and not returned, or is dead ;
in which cafe upon producing and proving the regifter of his
death, order may be had by petition or motion for publifhing
his depofitions after publication has paffed in the caufe •, and
the certificate of the death of the witnefs muft be annexed to
the petition. It cannot be done without fuch order j and the
party muft fhew he died before he could be examined in chief;
and the court will not only order the depofitions to be pub-
lished, but to read him as a witnefs at the hearing ; faving juffc
exceptions ; and notice is always to be given to the adverfe
party thereof. This notice is to prevent furprize, and to give
him an opportunity to object: as he (hall fee occafion. And if
the witnefs be beyond fea, and not returned, there muft be an
affidavit of it, and that the party has not heard from him of
fuch a time, nor does he know whether he is living or dead.
And in this cafe, there will be a like order, as in the cafe of a
witnefs who died before he could be examined in chief,
[The ordinary courfe of the court is, that depofitions taken
de bene ejfe y are not to be publifhed, unlefs a witnefs dies, or is
gone to a great diltance, fo that it is impoffible to have a
fubfequent examination of him in chief j it is a motion of courfe,
on a proper affidavit, to publifh them. This is the ufual but
not the only cafe in which the court can order thefe depohtions
taken to be publifhed ; the fundamental rule is, they are not to
be publifhed, but where there is a moral impoflibility to have
an examination in chief (c).]
[A witnefs going to fea was examined de bene ejje^ in order
to make ufe of his evidence at law ; notice of trial being given,
and the witnefs not being returned, his depofition was ordered
to be copied and publifhed by the Examiner ; but he was not
to publifh any of the depofitions of the other witneffes ().~]
[Motion to fupprefs depofitions, becaufe they had been taken
before the Mailer upon the fame matter, upon which the witnefs
has been examined in chief, without a fpecial order for re-r
examination, was granted (q).~\
[Depofitions of witnefles de bene ejje taken ex parte and with-
out notice, which the Chancellor thought indifpenfable, were
fupprelfed (r).]
[It fhould feem if one interrogatory be reported leading, the
depofition to that interrogatory only ihould be fupprelfed ; fa
if part of an interrogatory be reported leading, fo much of the
(/•) Gilb. 150. i Eq.. Ca. Abr. (0) 11 Vef. »40,
232. (/>) Amb. 252.
(/) Ambl. ^85. (?) 1 Bro. C. C. 388. a Dick,
(w) i2Vei. 201. 5080:639,
in) 2 Vef. J. 189, (r) 4 bro, C. C. 54°-
depofition
29& DEPOSITIONS.
depofition as relates to and anfwers the leading part, fhouldjbe
fupprefled (*).]
[On a petition to amend the depofition of a witnefs, the
witnefs and the examiner were ordered to attend ; and the
examiner being examined by Lord Chancellor, his Lordlhip
faid that where it appeared that either the examiner is
miftaken in the taking, or the witnefs in making the depofi-
tion, he thought it was for the advancement of truth and
juftice to amend it ; and the fooner this is done the better, in
regard the witnefs may be abroad, or in remote pans before
the hearing, it would be unjult to pin a witnefs down to what
is a miftake, by denying to re£tify it ; and as to the amending
of it after publication, the mittake could not be known before.
Therefore his Lordfhip ordered the depofition to be amended,
and the witnefs to fwear it over again (if).]
This caufe ftood in the paper for hearing ; and the plaintiff
applied to Lord King Chancellor by petition, that a dcpofition
taken in the caufe might be amended upon an affidavit of the
witnefs that the examiner had miftaken him in the following
manner : The witnefs had been examined, when he faw fuch
a perfon ; and it was taken down in the depofition about fix
weeks after the marriage of the man enquired after : Whereas
the witnefs in his affidavit fwore, that he faid about fix weeks
after the fire, which happened in Drury Lane about Auguft
1727. The Lord Chancellor upon hearing the depofitions,
and affidavits of the witneffes, ordered the witnefs, who was
prefent in court to be fworn \ which was done, and the man
examined, and the examiner attending, his depofition was
amended inftantly, and the caufe proceeded.
But the like application being made between the feals in a
caufe between Traherne and Burdus, he denied it, and faid
this matter mull be ftopt in time (w).
[A motion that a witnefs who had been examined in chief
might be re-examined before the Mailer, fuggefting that at his
firft examination he was interefted, having executed a partial
releafe infteadof a general one, was granted (#).]
[A motion to amend depofitions after publication was under
the circumftances refufed (y).']
[Where the queition is the fame, and the defence the fame
in two caufe?, between the fame parties, depofitions taken in
one caufe may read in the other (2).]
(*) Hind. 3v3. (*) .3 Bro. C. C. 370.
' (t) aP.W.426. st vide I Dick. (y) $ Vef. 297.
'358 & 13 Vef. 180 & 285. (*) 2 Vern. 447. 3 Atk. 502.
(w) z Keb. ai.
2 (Jhe
DEPOSITIONS. 099
[The reading of depofitions taken in a crofs caufe mull be by
precedent order upon motion (a).]
[Depofitions in the crofs caufe were allowed to be read on
the account directed in the original caufe ; for though the crofs
bill was difmilfed, that does not vary the truth of the de-
pofitions (£).]
[Original bill for relief; defendant made a full defence;
witneffes wev- examined ; and a decree againft the defendant ;
the defendant brought a crofs bill afterwards, touching the
fame matters, and examined other witneffes for the fame matter
put in iifue by the anfwer in the original caufe ; which was
objected to as an inlet to perjury, and Lord Hardwicke refufed
to hear the evidence in the crofs caufe touching the matters
in iffue, but allowed any of the depofitions in the crofs caufe,
in the original caufe to be read, not relating to the matters put
in ifTue in the original caufe (r).]
[Upon an account before the Mafter, the plaintiff offered to
read as evidence the depofitions in a former caufe, wherein the
plaintiffand defendant were parties, which the Mafter refufed,
unlefs an order was obtained for that purpofe ; and upon motion
for fuch order, Lord Chancellor faid, that fuch applications
caufed unnecelfary expence, and that the proper way was to
except if the Mafter was miltaken, and he refufed the mo-
tion (d 1 ).]
[Depofitions in a former caufe cannot be read in an other
caufe againft a party, who does not claim under the perfon,
againft whom they were taken, unlefs by fpecial order ; but if
a legatee brings a bill againft an executor, and proves affets,
another legatee though no party, may have the benefit of thofe
depofitions (**).]
[Where either plaintiff" or defendant obtains an OTder to ufe
the depofitions of witneffes taken in another caufe, the adverfe
party may ufe the fame without motion, unlefs he be, upon
fpecial reafon fhewn to the court by the party firft defiring the
fame, prohibited fo to do (/).]
[Where a witnefs dies after examination but before he has
figned fuch examination, they cannot be made ufe of (g-).j
[But where a defendant after publication examined a witnefs",
and then conceiving himfelf irregular in examining this witnefs
(it being after publication), got an order (upon petition and
(a) Wy. Praft. Reg. 172. (e) I Vern. 413.
(b) 2 Vef. 579. (/) Ord. Chan. 109.
(/) 3Atk. 5 or. Q) jP/W.414,
(d) 3 Atk. 524.
affidavit
3 oo DEPOSITIONS.
affidavit of himfelf, his clerk in court, and folicitor, that they
had not, nor would fee any of the depoiitions) that he might
re-examine the faid witnefles, but before (he could be re-exa-
mined, fhe died, the court ordered the former depositions of
this witnefs might be ufed (&).]
[A witnefs fwears reflecting words upon , as that he
was a vexatious man, and a ftirrer up of fuits, &c. yet he ought
not to pay cofls for it, as it is the commiffioners' fault for taking
down the depofitions ; <%iiere> if the interrogatory had led to it,
which it did not (z).]
Where depofitions are taken in the language of the country
in which the commimon is executed, an application mult be
made by motion or petition to the Mailer of the Rolls, that
fome notary public or other perfon (naming him) may be ap-
pointed to tranflate the depofitions out of the foreign language
in which they are taken into the Englifh language ; and that fuch
interpreter be fworn to the true tranflation thereof; and alfo
that the parties applying may be at liberty to read an office
copy of fuch tranflation at the hearing of the caufe, which is
ufually ordered as of courfe.
[A copy of the order muft be ferved upon the adverfe clerk in
court perfonally, or left with his agent at his featin the fix
clerk's office, {hewing at the time of fervice the original order
pailed and entered. After tranflation is made and engroffed
upon parchment with an half crown ft amp, the tranfiator is
taken with the tranflation to the public office, and the order
appointing him being produced, the tranflation is fworn to
before the fitting Mafter there, or in his ab fence, before any;
other Mafter of the court. The tranflation and the record or*
the depofitions are to be annexed together, and left at the
publick office, until the clerk in court fetches them away. An
office copy is then made of the tranflation, and at the_ hearing
of the caufe, the order for reading the tranflation being pro-
duced, the office copy of the tranflation will be received in
evidence {/"-).] ,
[The court refufed to permit depofitions in the French lan-
guage to be delivered out for the purpofe of being tranflated (/)•]
[The words of courfe preceding depofitions taken in the Examiner s
office.
Witnefles examined in a caufe depending and at ifiue in this
honourable court, wherein A. B. is complainant, andC. D. is
(h) i P.W.414&4TC . (*) Hind. 400 & 401,
C „ -77.400. (OjVef.^. defento)
DEPOSITIONS- 301
defendant, on tlie part and behalf of the laid complainant by
E F Efquire, Examiner in Chancery.
G. H.of A. Efquire, aged 46 years and upwards, being pro-
duced as a witnefs on the part and behalf of the complainant in
this aufe,was,onthe eleventh day of June in the year of our Lord
1*783, (hewn in perfon at the feat of Mr. I. K. who is the clerk in
court for the defendant, in the title of the interrogatories named
by Mr L. one of the fworn clerks in my office, who then alfo
left a note of the name, title, and place of abode of the faid
deponent at the feat aforefaid, and afterwards on the fame day
and year the deponent being fworn and examined, depofeth and
faith,
I ft. To the firfl interrogatory deponent faith, Sec. (*»).]
[The words ofcourfe preceding depofitions taken by Commi/fioti.
Depofitions of witnefTes produced, fworn, and examined on
the 20th day of June in the 23d year of the reign of King
George the" third, and in the year of our Lord 1783, at the
houfe of innholder, known by the name or fign of the
fituate in by virtue of a commiifion i Hiring out
of his Majefty's High Court of Chancery to us A. B., C D.,
E.F., and G.H., directed for the examination of witnefTes in a
caufe then depending, between I. K. complainant, and L. M.
defendant : We the faid A.B. and C. D. the ading commif-
fioners under the faid commiflion, and alfo the refpeHive clerks
by us employed in taking, transcribing, and engroifing the faid
depofitions, having tirit fever^lly taken the oaths annexed to
the faid commiiTion according to the tenor and true effect
thereof, and as thereby is required.
On the part and behalf of the complainant I. K.
N. C of Efquire, aged 50 years and upwards, a wit-
nefs produced, fworn, and examined on the part of the faid
complainant J.K. depofeth and faith as follows :
2d. To the lecond interrogatory this defendant faith Sec. («}.]
(«) Hind. 4or & 40?, (n) Kind. 402,
CHAPTER THE FORTY-FIFTH.
Setting down the Caufe for Hearing.
THE plaintiff may of courfe have the caufe fet down for
hearing before my Lord Chancellor, or Mailer of the Kolls,
the term next enfuing after publication, and by fpecial order,
the fame term publication paries ; and if the plaintiff omits let-
ting down his caufe, the next term after publication is paft, it
may be fet down at the requeil of the defendant in the next
following term.
And in injunction caufes, the defendant is at liberty to apply
for fetting down the caufe the term after publication.
[No motion (hall be made to haften a caufe to hearing, which
is either adverfary or by confent, nor any caufe entered with
the regifter for hearing notwithftanding any order, without a
certificate firft had from the fix clerks, that the pleading? are
duly filed, for which no fee is to be taken (a)."]
[No money cr other reward (hall be exaeled or taken by any
of the fix clerks, or by any of the regifters for or in their behalf,
for the preferring and fetting down of any caufe for hearing,
but only fuch fees as are behind and unpaid of their termly
fees and duties ; and if any caufe happen to be fet down for
hearing, wherein they ihall not have been paid their fees and
duties, they may alledge the fame in ftay of the hearing of the
caufe (3).]
[The fix clerks claim a privilege of fetting down a certain
number of caufes to be heard before the Lord Chancellor or
Mafter of the Rolls ; they ufually give notice to their fworn
clerks when they intend to fet down caufes for the enfuing term,
■which in Hilary, Trinity, and Michaelmas terms, are ufually
the day after the third feal ; and in the Eafter vacation, the day
before the firft feal preceding Trinity term (<.-).] The fworn
clerks thereupon apply to their refpective fix clerks, fhewing
them the depofitions publilhed, and leaving with them a fhort
account in writing of the nature of fuch caufes as they would
have fet down to be heard. [And thereupon the fix clerk will
fet down the caufe accordingly before the Lord Chancellor, or
(a) Ord.Chan. 185. (r) Hind 405.
h) Ord. Chan. III.
1 Mafter
SETTING DOWN THE CAUSE FOR HEARING. 303
Matter of tiie Rolls as the party fetting down the caufe dire&s.
If the plaintiff is inclin.-d to hear his caufe upon bill and anfwer
only, his clerk in court applies as before mentioned, adding to
the foot of the note " upon bill and anfwer" inftead cf a rule
to pafs publication, &c. (d) ]
[ The fix clerks are limited as to the number of caufes they
have the privilege of fetting down, and if their number be
complete, the caufe muft be fet down with the regifter ; but
previous thereto a certificate muft be obtained by the clerk in
court from the fix clerk that the pleadings are regularly filed,
or the publication hath regularly palled in the caufe as appears
by his books : to fet a caufe down upon bill and anfwer only,
a certificate of the pleadings being filed is fufficient ; if wit-
neffes have been examined, or rules to pafs publication given,
a certifi -ate of the latter fort muft be procured, and produced
to the regifter before he will fet down the caufe (e).~\
[In fetting down caufes, care fhouid be taken that no irre-
gularity be incurred ; for after a decree k feems as if a reference
to a Matter might be obtained to enquire, if the caufe was fet
down regularly or not (/*)•]
[A note of all caufes, pleas, demurrers, exceptions to reports,
and the like, that are ordered to be fet down for hearing, fhall
hereafter from time to time be affixed, and fet up by the re-
gifters in their office, two days before the fame are refpettively
appointed to be heard. And in order hereunto, all clerks, fo-
licitors, and others, are here'oy required to bring to the re-
gifter's office in due time all orders for fetting down of caufes,
pleas, demurrers, exceptions to reports, and the like, made
upon petitions or otherwife, that fo they may be fet up in the
regifter office as aforefaid ; otherwife the faid caufes, pleas 3
demurrers, exceptions to reports, and the like, fhall refpec-
tively be put off from hearing for that time, and fhall not
come on again to hearing without further order (g).]
[The regifter's books of caufes, Sec. to be heard before
the Lord Chancellor, or Mafter of the Rolls, is open to the in-
fpection of folicitors at the rrgiUcr'i office during office
hours (£).]
(d) Hind. 405. (g) Ord. Chan. 158,
(e) Hind. 405 & 6. (f>) Hind. 407.
(/) Mofeley^.
( 3°4 )
CHAPTER THE FORTY-SIXTH,
Subpcena to bear Judgment.
t^TT^HEN the caufe is ready for hearing, this procefs is io
f * * be fued out on note in writing under the hand of the
Regifters, or their respective deputies of the day the caufe is
iet down for hearing (#).]
[The clerk in court fetting down the caufe, applies for the
Regifler's note thereof in writing, and that being obtained,
a precipe for the Jubpcena is made out in the following form, to
which the Regifler's note is to be annexed, and both are left
at the Subpoena Office when the fubpoena is befpoken :
Subpcena A . B . to appear in Chancery, returnable the 8th
of November to hear judgment the nth of November at the
fuitof CD. (b).~\
[The Writ is in the following form '.
George the Third by the grace of God, &c. To A. B.
greeting. For certain caufes offered before us in our Chancery,
we command and ftri&ly enjoin you, that laying all other matters
afide, and notwithftanding any excufe, you perfonally be and
appear before us in our faid Chancery the eighth day of No-
vember next, wherefoever it fhall then be, to anfwer concern-
ing thofe things which fhall be then and there objected to you,
and to do further and receive what our faid court fhall have
confidered in this behalf j and this you may in nowife omit
under the penalty of one hundred pounds, and have there this
writ. Witnefs ourfelf at Wcftminfter the 30th day of July
in the 24th year of our reign.
Courtenay and Courtenay.
Indorfedhy the court, to hear judgment the eleventh day of
November at the fuit of C. D.
Label. A. B. to appear in Chancery, returnable the 8th
(a) Wy. Pra&. Reg, 410. (b) Hind. 408 & 9. (c) Hind. 409;
3 of
SUBPOENA TO HEAR JUDGiMENT. 305
of November, to hear judgment the nth of November at the
iuit of C. D. (*).]
[This writ is always made returnable three days before the
day on which the caufe is fet down to be heard, unlefs the re-
turn day happens on a Sunday j in which cafe a day more is
allowed ; the indorfement 0.1 the writ (hews the day on which
the caufe is appointed to be heard (d)-~\
[If the day to hear judgment be the firft, fecond, or third in
term, whereby the three days in term before the day to hear
judgment cannot be afcertained, the writ mull be made return-
able on a general return day ; as where the caufe is fet down for
the firft day of caufes in Hilary term, the procefs mult be made
returnable in eight days of St. Hilary, to hear judgment the
24th of January (e).~\
A fubpoena to hear judgment is either to be ferved personally,
or elle left with one of the houfe or family of the party.
[If two or more are in the fubpeena, one or two mud be
forved with labels ; in all cafes of the fervice of the label, ob-
serving to (hew the body of the writ under feal at the time of
the fervice (f ).]
The time of fervice is to be regulated by the refidence of the
adverfe party. If he live above twenty miles from London,
it mud be ferved fourteen days exclufive, before the time to hear
judgment, except in the fhort vacation between Eafter and
Trinity terms, and then ten days (g) ; but if within twenty
miles of London, if it be ferved ten days before the time to
hear judgment, it is generally fufficient; and in the fhort
vacation, it mud be ferved ten days before the return, and an
affidavit of fervice is requilite, becaufe of the cofts to be paid for
not appearing, &c.
[If a party be abroad or abfeond, fo that he cannot be
found to be ferved with afubpeena to hear judgment, the court
upon motion or petition fupported by affidavit of the fac\, will
order that fervice of the fubpoena on the clerk in court of the
party be deemed good fervice on the party himfelf ; and an
affidavit that the defendant's clerk in court had been applied to,
and would not tell where the defendant lived, has been held
fufficient.]
[Where an infant is defendant, the affidavit of fervice to
hear judgment mult be that the guardian was ferved, not the
mfimt ; though the infant want ever fo little of twenty-
(t) Hind. 409. (/) Ord. Chan. 96.
id) Hind 409. (g) Ord. Chan. 116,
{e) Hind. 4C9 & 410.
Vol. I. X one,
3o6 SUBPCENA TO HEAR JUDGMENT.
one, the fervice mult be upon the pcrfon appointed by the court
to defend him (/.>).]
If the plaintiff procures the caufe to be fet down for hear-
ing, butdoes not lerve the defendant with a fubpcena to hear
judgment, if the defendant attends, and the plaintiff does not
proceed, or go on m hearing the caufe, in that cafe the caufe
is ftruck out of the paper, and no ccfts are given on either
fide; but if the plaintiff ferves the defendant with zfubfcena to
hear judgment, and the defendant makes "and files an affidavit
of fuch fervice, atnl the caufe is in the paper, and the
plaintiff's counfel does not open the bill, then upon reading
the defendant's affidavit of fuch fervice, the court will difmif*
the plaintiff's bill with colts to be taxed.
But if the caufe be fet down at the defendant's requefr, and
the complainant appeareth not, the defendant can take no ad-
vantage of it, unlefs the fubp&na to hear judgment appears to
have been ierved on the plaintiff; and otherwife the plaintiff is
in no default. But if the plaintiff refufes to appear and open
his bill, on reading an affidavit of fervice, the court will difmifs
the bill with cofls to be taxed.
Commonly if the party who hath a caufe to fet down for
hearing, is not ready to hear it at the day, but defires it may
ftand over to a farther day, lie muft pay the other party the
cofts of the day, if the court thinks fit to indulge a farther day ;
yet when a caufe is fet down at the defendant's requeft, if the
plaintiff (not being ferved with procefs to hear judgment) and
his counfel attend, and the defendant with his counfel do not,
the plaintiff fhall have no cofts, as he was not compelled to ap-
pear without fervice of a Jubpcena to hear judgment, and the
defendant might chufe whether he would go on to have the
caufe heard or not.
[The party at whofe requeft a caufe is fet down for hearing,
would acl: wifely in all cafes to have ready, when the caufe is
called on, an affidavit of fervice of the fubpeena to hear judg-
ment, upon the adverfe party. A plaintiff neglecting fuch
precaution cannot pay a decree 7iift again ft a defendant making
default at the hearing ; for it is upon reading an office copy
from the affidavit office of the affidavit of fervice of the jitbpmna
to hear judgment that the court makes any decree in the abfence
of the adverfe party. On the other hand, a defendant fetting.
down his caufe and omitting fuch a neceffary proceeding, can-
not have a bill difmiffed with cofts (*').]
(£) Hind. »49- (') Hind. 406.
Affidavit
SUBPCEiNA TO HEAR JUDGMENT. 307
Affidavit of Jewing a Subpccna h hear Judgment.
T ~, *'■ f A. B. complainant.
In Chancery. Between | c ? ^^
11. F. of, Sec. maketh oath, that he, this deponent, did, on
the rtay of laft pr.lt, perfonally ierve the de-
fendant with a fubpoena ifllung out of and under feal of this
Honourable court, by which faid /ubpeena the faid defendant
was required to appear in this honourable court, the day
of now Lift part, to hear judgment the day of
aforefaid, at the fuit of the complainant above-named,
by delivering the body of the izxAJubpoena to the faid defendant,
under feal as aforefaid.
E. F. Sworn, &c.
[The defendant dying after fervice of the fubpoena to hear
judgment, queer e, whether upon a bill of revivor^ a new fub~
poena to hear judgment is necelfary (£).]
(*) 5 Vcf. 305.
K 2
( 308 )
B
CHAPTER THE FORTY-SEVENTH.
Hearing.
Y order upon confent, the parties may appear, anfwer, and
go to hearing gratis ; and fo they may do without order,
fave only for fo much as breaks in upon the common courfe of
the court, as time for publication, &c, which cannot be altered
by confent, without a fpecial order for that purpofe.
[The Remitter on the evening previous to the hearing of the
caufe for the enfuing day, ul'ually makes out a paper of the
c'aufes which {land next fur hearing ; one copy thereof is fixed
up in the Regifter office, and another copy is put in the Six
Clerks' office. There are generally twelve caufes in each paper,
and very rarely it happens that the paper is gone through in
one day. The laft caufe, if it happen to be called on, is
always privileged, that is, neither party can be obliged to
pay coils of the day for not attending when called on, the
fame being never ftruck out of the paper for non-attend-
ance («).]
The caufe being fet down, and (landing in the paper for
hearing, the clerks in court and folicitors on both fides are to
attend the court with the pleadings, that the fame may be read
as occafion requires, &c. And all office copies are to be figned
by the refpeclive Six Clerks concerned in the caufe ; otherwife
they will not be fufFered to be read (/>).
[The method of hearing caufes is ufually this •, the parties
on both fides appearing by their counfel, the plaintiff's bill is
firft opened, and the defendant's anfwer alfo, by the junior
counfel on each fide •, after which, the plaintiff's leading
counfel ftates the cafe, and the matters in iffue, and the
points of equity arifing therefrom ; and then fuch depofitions
as are called for by the plaintiff 's counfel are read by one of
the Six Clerks in Weftmirifter Hall, or by the folicitor or his
clerks in Lincoln's Inn Hall ; and the plaintiff may alio read
fuch parts of the defendant's anfwer, as he thinks material or
(a) Hind. 412. (&) Ord. Chan. 104.
convenient.
HEARING. 309
convenient (c). After this, the reft of the counfel for the
plaintiff make their obfervations and arguments ; then the fame
courfe of proceedings is obferved by the counfel for the de-
fendant, except that they may not read any part of his anfwer ;
and the leading counfel for the plaintiff is heard in reply, and
concludes the argument. When all are heard, the court pro-
nounces the decree, which being ufually very long, the minutes
of it are taken down, and fometimes read openly in court by
the regifter (of).]
[All parties generally take a copy of the minutes from the
regifter ; and if it be apprehended that he hath made any mif-
take, or the court hath been led into an error by wrong infor-
mation, and mifconception, the decree in minutes may be
rectified on application by motion or petition for that pur-
pofe (*).]
[If the caufe is fet down upon bill and anfwer only, then
after the bill is opened, the anfwer is to be wholly read, and
muft be admitted true in all points, and no other evidence is
to be given, but matter of record, to which the anfwer refers,
and which is proveable by the record (/).]
[But it has been held, that deeds may be proved vivci voce
at the hearing of a caufe upon bill and anfwer at the Rolls (g).]
[If the fubpoena to rejoin be not ferved, although fued out,
or the defendant do not appear gratis to rejoin, the caufe muft
be heard upon bill and anfwer, and no proof admitted to be
read (£).]
[If the plaintiff go to hearing on bill and anfwer, and the
court fhall not fee caufe to make a decree thereupon for want
of fuffkient matter confeffed by the anfwer, the bill fhall be
difmiiTed with cods (forty millings), or the plaintiff may be
admitted to reply if he defires it, paying down five pounds, or
fuch other cofts as the court fhall think fit for the day, within
four days after fuch hearing j which if he does not, the dif-
(r) Note. [On a trial at law, anfwer has been put in, the de-
if the pi intiff rends any part of fendant may infift upon having
the defendant's anfwer, he rnuft that read to explain what he
read the whole of it ; and he fwore in his firft anfwer. Builer's
fhall not take only what makes N. P. 23 7. 3
againft the defendant; for the (d) Hind. 412 & 413.
anfwer is read as the fenfe of the (/) Hind. 413.
party himfelf ; and if it be taken (/) Ord. Chan. 100.
in this manner, it muft be taken (g) Wy. Pradt. Reg. 219.
entire and unbroken; therefore. (,&) Hind. 417.
if upon exceptions taken, a fecond
X 3 million
3io WEARING.
million mufl (land, and being figned and inrolled, may be
pleaded in bar to a new bill for the fame matter, &c. (*').]
If the defendant or his counfel do not appear at the day of
hearing, on affidavit being made that he was ferved with pro-
cefs to hear judgment, the caufe is to go on, viz. the bill is
opened, and the beginning of the defendant's anfwer read :
and it is ufual to direct that the plaintiff (hall take fiich a
decree, as he can (land by. But a day in fuch cafe is always
by the court given to the defendant to fhew caufe to the con-
trary againft the decree fo pronounced, commonly with thefe
or the like words, viz. " And this decree is to be binding to
the defendant-, unlefs he being ferved with a fubpoena to (hew
caufe againft the faid decree, fhall at the return thereof fhew
unto this court good caufe to the contrary ;'' but before he is
admitted to fhew caufe, he is to pay unto the plaintiff his cofts
of this day's attendance to be taxed by the Matter. And the
decretal order is to be drawn up accordingly ; and before he is
admitted to fhew caufe againft it, he fhall produce a certificate
from the plaintiff's attorney in court, that the cofts are paid,
or an affidavit of the tender and refufal •, after which i.e may
petition that the caufe may be fet down again to be heard.
The decree n'ifenufa being drawn up, pafled, and entered with
the Regifter, the plaintiff fues out z fubpoena againft the defend-
ant to fhew caufe againft the decree, and ferves him therewith,
as in other fubpeenas ; but this writ being a judicial procefs, it
muft and always is made returnable in term time ; if it ihould
be made returnable out of term, or at any of the feals as was
once done, it would be fet a fide for being irregular. The
words of the fubpoena are to fhew caufe according to the order
of the court bearing date fuch a day and year, &c.
There is no prefixed time for the fervice of th'\s fubpoena, nor
how many days notice the defendant is to have between the fer-
vice, and the day to fhew caufe ; it were to be wifhed that
it might be, as in cafe of a fubpoena to hear judgment.
Though indeed where the decree is made at any of the days of
caufes within the feals after term, there the party has timely
notice to mew caufe ; but when the decree is pronounced in
term time, the party, if thefubpoena is made returnable the fame
term (as it may be) has but a very few days left to fhew caufe
againft the decree, and is fometimes ftraitened to do it.
If the defendant fubmits to the decree unlefs caufe, then
upon an affidavit of the fervice of the fubpoena to fhew caufe,
and upon a certificate from the Regifter that no caufe is
(i) i Px. Aim. 14. Hind. 41 7.
{hewn,
HEARING. 311
(hewn, the plaintiff's counfel move to make the decree abfolute
on the affidavit and certificate, which is a motion of courfe.
[Upon a decree taken by default of the defendant at the
hearing, the evidence is not to be entered as read (£).]
[ft a defendant means to fhew caufe againfl: a decree being
made abfolute, as foon as he he is ferved with the fubpeena to
(hew caufe, an application fhould be made by petition to the
Lord Chancellor or Mailer of the Rolls, before whom the
caufe was fct down, dating the default of the defendant,
and praying that upon payment of the cofts of the petitioner's
default in not attending the hearing, the caufe may be reftorecl
to the paper of caufes, and fet down to be heard next alter
the caufes already appointed to be heard ; which will be ordered
of courfe (/).]
[The coils purfuant to the taxation being paid or tendered
to the adverfe clerk in court, and a certificate or receipt from
him that the lame are paid, or on an affidavit made and filed
of a tender and refufal thereof (m), the defendant applies to the
Regifter with the order for reftoring the caufe, accompanied
with a certificate or receipt of the taxed cofts being paid or an
affidavit as before mentioned, and the Regifter fets down the
caufe to be heard next after the caufes then appointed to be
heard •, the Regifter will not fet down the caufe without feeing
the receipt, or affidavit of tender and refufal, of the cofts («).]
If upon hearing, the plaintiff dpth not appear, upon the defend-
ant making an affidavit of being ferved with a fubpeena to hear
judgment at the plaintiff 's fuit (except the caufe was fet down
at his-requeft) the plaintiff's bill fhall be difmiffed with cofts.
[The courfe of the court is upon default of plaintiff or
defendant appearing to heV.r judgment, when the caufe is
called on, and an affidavit of fervice of procefs to hear judgment
is wanting, to ftrike the caufe out of the paper without cofts to
either party (o).]
Wherethere are crofs caufe?, they fhall be brought on to
hearing together, if the aniwer in the lail commenced caufe
be come in, before the firft caufe is heard. But if there be crofo
caufes on bills exhibited by each of the parties, and both fuits
bepublifhed, and ready for hearing, that party's caufe that
doth not ferve procefs, fhall not come on at the fame time with
the other party, except the other party coufents to it.
[Where the defendant in a crofs caufe is in contempt far
(i) loVef. 30. (n) Hind. 438.
(I) Hind. 437 & 438. (/>) Hind, 407.
(m) Ord. Clian. in,
X 4 not
312 HEARING.
not putting in an anfwer to the crofs bill, the plaintiff in the crofs
caufe (defendant in the original eaufe) mould move to enlarge
publication in the original caufe until a fortnight after the an-
fwer comes in to the crofs bill ; which upon fpecial motion will
be in mod cafes granted ; if this precaution be not obferved,
the original and crofs caufe cannot be brought on together *,
the courfe of the court being in fuch cafes not to flay proceed-
ings, but publication only (/>)•"]
[Where both eaufes are fet down, the one preceding the
other, and forr.e other eaufes intervene, the plaintiff in the
original caufe, if the crofs caufe hath acquired priority in the
paper of eaufes, or vice verfa, is to move for leave to bring
forward his caufe (if neceffary) that both original and crofs
caufe may come on to be heard at (he fame time, or that the
crofs caufe or original caufe (as the cafe may be) may ftand
adjourned, fo that both eaufes may come on to be heard
together (g).']
[Upon an application of this fort, it may be neceffary to
engraft a rcqueft that the depofitions (if any) taken in the ori-
ginal caufe, may be read at the hearing of the crofs caufe etfic
e converjo (r).]
If the party who procures the caufe to be fet down for hear-
ing it, is not ready to hear it at the day, but defires it may ftand
over to another day, he mult ordinarily pay the other who
appears, the cofts of the day (viz five pounds) if the court fee
fit to indulge a further day (•>).]
(p) Hind. 414. (r) Hind. 415.
(y) Hind. 415. (/) 3 Atk. 133.
( 3*3 )
CHAPTER THE FORTH-EIGHTH.
Difmijfion.
r A DISMISSION is a final fentence of the court, whereby
{_** the plaintiff's bill or fuit is ordered to Hand dif-
mifTed {a).]
[A dilmiffion is fometimes for want of filing a bill upon
a fubpoefia ; or for want of profecution upon a bill filed ;
fometimes upon the defendant's anfwer and disclaimer ; other
times it is on plea or demurrer to the bill ; or for commencing
and proceeding in a fuit at common law for the fame matter
pending the fuit here ; or upon hearing of the caufe ; or by
the plaintiff's doing fomewhat which feems making himfelfa
judge of the matter in queftion j or upon the prayer of the
plaintiff himfelf (£).]
[The replication muft be filed before the end of the third
term, exclufive of the term in which the plaintiff's anfwer was
filed ; if no replication be filed within that time, the bill may
be difmiffed with cofts upon motion or petition (c).~\
On difmifling a bill before replication, it is not neceflary to
ferve a notice of motion ; but it is ufual only for the clerk
in court to leave a note at the feat of the adverfe clerk with
himfelf, or his clerk or agent there, that he will difmifs the
bill for want of profecution ; and fo get the Six Clerk's certi-
ficate on which the motion is grounded, and moved of courfe
without any affidavit.
[If the plaintiff means to keep the caufe in court, he will
cither obtain an order to amend the bill, or file a replication to
the anfwer. If the plaintiff after obtaining an order to amend,
delays amending his bill after a reasonable time has been allowed
for that purpofe, the defendant may move the court, that the
order obtained by the plaintiff on the day of
(the date of the order) may be difcharged, and that the bill may
be difmiffed with cofts for want of profecution. A notice mull
be given of this motion j an affidavit of the fervice thereof made
and filed, and an office copy had together with an office copy
(a) Wy. Praft. Reg. 176. (r) Hind. 288.
(b) Wy. Pratt. Keg. 177.
of
3M DISMISSION.
of the order to amend, to be read in court. Unlefs the plaintiff
appears by counfel on the motion, and undertakes to amend
the bill within a time to be limited by the court (ufuaily ten
days or a fortnight) the plaintiff's order to amend will be dif-
charged, and the bill will be difmiffed for want o!' profecution
agreeably to the application (7/).]
[When the bill has been amended, -and an anfwer to the
amendments is required, the defendant fhould put in the fame
immediately, fo that as little time may be loll as poflible ; for
he cannot apply again to the court for a difmiffal, until three
terms have dapfed, after the filing of his anfwer to the
amendments (*.)]
After a replication put in, if the plaintiff ceafes all manner-
of profecution for three terms exclusive, the bill may upon
the Six Clerk's certificate and giving notice of motion, and an
affidavit thereof riled (if net defendedby the plaintiff's counfel)
be difmiffed.
[To prevent the effeft of this motion, the plaintiff mufl
cither tmdertake to fpeed his caufe, or move or petition to
withdraw his replication, and amend his bill, which will be
granted on payment of 20/. coils to the defendant (/).]
If a plaintiff obtains an order to amend his bill, which he
does not do in a reafonable time, yet this mail not be fuch a
proceeding as to keep his bill on foot, and hinder its being
difmiffed for want of profecution.
If a bill be difmiffed for want of replication or other pro-
ceeding, yet the court on application often orders that the bill
be retained on payment of coils out of purfe ; in which cafe
the defendant may apply to have fuch order difcharged, efpeci-
ally if the plaintiff has been guilty of delay. But after joining
in commiflion (yea before the names are flruck) the defendant
hath no method left to get rid of his caufe, but by obtaining a
commiflion ex parte, and after the depofitions are returned to
get a rule entered to pafs publication, and the caufe fet down
and heard at his own requell.
[If a plaintiff amends his bill, the defendant mufl put in an
anfwer to the amendments. And the plaintiff has the fame
time after the anfwer to the amended bill is filed, to reply
thereto, as he had to the anfwer put in to the original bill (g).]
[If the plaintiff undertakes to fpeed the caufe, he gives in-
ftruclions to counfel to appear on the motion (made by the de-
() i Atk. 286.
(,) 2 Vef. J. 287. (2) Wy.Praft.Reg. 179&180.
{0) Barnard, 280. . .
v fuit
DISMISSION. 317
fuit in equity is not for the fame matter, there mail be no
election ; if the bill is a bill of difcoverv and no relief fought
thereon, there is no election ; for perhaps from that difcovery
he may be able to proceed in law, and without it cannot.
Upon this head there feems to be a plain failure of juftice
(which hitherto has never, as we know of, been taken notice of),
as for example ; fuppofe the plaintiff elects to proceed in equity,
and his bill upon hearing is clifmified either with or without
cods ; all the benefit the defendant who is doubly vexed by it
has, is only to have his colts, and plead it in bar to a new bill
brought againft him for the fame matter (for a difmiffion upon
an interlocutory order is not pleadable), but his injunction lor
flaying proceedings at law is gone by the difmiilion, and the
plaintiff is in that cafe at liberty to proceed at law, which the
court never intended, when they put him to his election. Now
he elects to take his fate in equity j finds that court againft
him, and when he has done there, he may take another turn
at law, which, is a great hardfhip, and it were to be wifhed,
that the wifdom and juftice of the court would remedy it; for
the or.ier of election is, that the plaintiff is profecuting at law
and in equity for one and the fame matter; and therefore he
is called on by the juftice of the court to eleel in which court
he will proceed, but ftill he is not to proceed in both courts'.
The plaintiff filed a bill in the Exchequer which was dif-
miffed, and now brought the fame bill in this court, which
the defendant moved might be mifmifled with colts ; but the
Lord Chancellor on confulting the regifter laid, it could not
be difmifTed on a motion; but the defendant muft plead to it,
and then it is referred to a Matter to fee, whether it is the
fame bill or not ; but if a bill is depending here, and a fecond
brought for the fame matters, the defendant may move, that
it may be referred to a Matter to fee whether they are the
fame, and to difmifs one (r).
A difmiilion upon an election to proceed at law is not
peremptory, but the plaintiff may after he has failed at law
bring a new bill (/) .
An order for plaintiff to make his election was difcharged
on motion, becaufe defendant had pleaded the ftatute of limi-
tation, and the plea had not been argued (/«). ,
A plaintiff here may either make a general election to pro-
ceed here or at law, or a fpecial election as to proceed for part
here, and the other part at law ; but the court will judge of
the reafonablenefs of that fpecial election (?;).
O) Mofeley, 268. (m) Mofeley, 210.
•(/) zVern. 24. («) Gilb. Rep. 183.
A. If
3 i3 DISMISSION.
If one makes a fpeciai election to proceed at law as to part,
and in equity as to other part ; with regard to what the
plaintiff in equity elefts to proceed at law, the bill ought to be
difmiffed with coils (0)4
Bill of revivor brought by a wrong defcription of plaintiff, a
fecond bill brought, and demurrer thereto. The Mafter on
reference reports, that they are for the fame caufe, but in dif-
ferent rights ; the former to be difmiffed with colls generally 1 ,
not with 20 s. cofts (/>).
The order for making an election, recites only that the
plaintiff profecutes the defendant at law, and in equity, for
one and the fame matter •, fo that the defendant is doubly
vexed ; wherefore it provides that the plaintiff, his clerk in
court, and attorney at law having notice of the order within
eight days after fuch notice, make his election, in which court
he will proceed •, and if he elects to proceed in this court (the
Chancery), then the proceedings at law are by that order to
be ftayed by injunction : but if the plaintiff fhail eleil to pro-
ceed at law, or in default of fuch election by the time afore -
faid, his bill is to be difmifled with cofts.
Before appearance, the plaintiff may obtain leave to difritffe
his own bill ; fo after appearance and before anfwer •, or after
anfwer and before the parties have examined witneiTes, the
plaintiff may generally of courfe on motion, have leave to dif-
mifs his own bill with colts. And if the plaintiff difmifs his
own bill, or the defendant difmifs it for want of profecution,
the plaintiff muft by the lnte ftatute (q) for amendment of the
law pay full cofts, to be taxed by a Mafter.
A difmiffion may be upon the plaintiff's own prayer, and is
often upon hearing the caufe, where it appears, that the merits
thereof are improper for a court of equity.
[A caufe being ended, leave was given the plaintiff to dif-
mifs his bill without cofts. So where a feme fole ; plaintiff,
married before witneffes examined (r).
[Plaintiff cannot on motion difmifs his bill without cofts, on
the ground that the court would have decreed according to it,,
unlefs confent (s).~\
[Plaintiff can in no cafe difmifs his bill without cofts j with
cofts it is of courfe (/).
[If without his privity, a bill be difmiffed as of the plaintiff's
own prayer, the court on complaint, &c. will not only retain
(0) 3 P. W. 90. (>) Wy. Pra&. Reg. 182,
(p) Barnard, C. R. 58. 4, (s) 1 Vef. J. 140.
{q) 4 & 5 Anne, c. 16, (t) 1 Vef. J. 102.
the
DISMISSION. 3iy
the bill, but order the abufe to be examined into, and punifh
[One co-plaintiff may difmifs his bill as againft himfelf with
colts without the confent of the other co plaintiffs ; and the
Chancellor faid it was a motion of courfe (w).]
[A motion to amend the bill by finking out the names of
two of the plaintiffs upon giving fecurity for colts was at firft
refufed, becaufe the defendants did not appear and confent j
but afterwards granted (a).]
If a bill is exhibited in any perfon's name without his privity,
the court upon (hewing it, will difmifs the bill at lcalt as to him,
if there be more plaintiffs •, and to that end he may either come
into court and difclaim the iuit, or give power to counfel in
writing to move that it may be difmiffed ; and it will be dif-
mifled with colts againit the perlbns that exhibited the
bill ( v ).
The warrant of the counfel, after it is read, is taken and kept
by the regiller.
So if the bill be exhibited in the wife's name againft the
huiband, upon affidavit that flic knows nothing of it, nor con-
fented to it, may be difmiffed on motion.
[An application by a plaintiff to have his name (truck out
of the bill, becaufe it was inferted without his knowledge, was
refufed ; but it was ordered that a motion Ihould be made at
the hearing, that in cafe the plaintiff were to pay the colts, he
inould be indemnified by the folicitor, who had fo inferted the
plaintiff's name (z).]
[If the complainant pendents lite in this court enter into the
lands in queftion, or do any fuch like thing, he flrall be difmifled
for fo much ; becaufe he thereby in fome fort takes upon him-
felf to be judge in his own caufe, and renounces the judgment
of the court ; but for other matter in his bill (if any) he may
proceed («).]
A caufe being ended by agreement or arbitration without
proceeding on the bill, order will be given to difmifs the
bill.
[After decree the bill cannot be difmiffed by confent ; but
(u) Wy. Pract- Reg. 1S2. bis name may be (truck out of th?
(w) Wy. Pracl. Keg. 179. ingroffment, not that the bill may
13 Vef. 167. S. P. be difmiffed againlt him. In the
(x) 6 Vef. 145. Exchequer Mich. Term 1S07.)
(y) 1 Dick. 32. Note. (Where («) 1 Dick. 350. iVef. J. 196.
a perfon is made a co-plaintiff in {a) Wy. Pract. Reg. j8o &:
a bill without his privity and con- 1 8 r»
fent, the proper motion is, that
3 an
3 2o DISMISSION.
an arrangement for difpofing of the fund in court may have
effect, by confent on farther directions (£).]
[After a decree, merely directing inquiries, fuch an order as
could be had on farther direclionj may, by confent, be made
on motion ; fuch as to difmifs the bill with cods (c).~]
Difmifiion upon hearing is fometimes for want of parties ;
fometimes becaufe the matter belongs to another court to de-
termine, as to the courts of law, or eeclefiaftical courts ; or
that the cognizance thereof belongs to another court of equity,
as the Univerfites and Cinque Ports &c. ; or for that the matter
in demand is below the dignity of this court, either in refpec,~t
of its value, as under ten pounds ; or in refpect of its nature,
being in itfelf difhoneft ; or accompanied with fraud, corrup-
tion, or oppreflion, or having evil tendency, or for want of
equity, &c.
As to difmiffing bills for want of parties, the diftindtion
feems to be this, where the parties omitted are really in-
terefted, and fuch as have a right by their anfwer to controvert
the plaintiff's title, and draw the caufe to a frefh -examina-
tion, there the bill ought to be difmiffed with < oils ; but
where the parties omitted muft be added merely for form,
there the caufe may be adjourned on payment of colts of the
day, and the bill amended, and proper parties added.
In cafe of a difmimon which was not upon hearing of the
caufe, if any new bill be irregularly brought, the difmimon is
to be pleaded ; and after reference and report of the contents
of both fuits, and confideration of the caufe of the former dif-
miffion, the court will order the retaining or difmiffion of
the new bill, according to the juftice and the nature of the
cafe ; and obferve, that touching the caufes of difmiffion and
retainer, this court exercifes a difcretionary power therein (d).
If a difmimon be decreed upon a full hearing, and drawn
up, figned, and inrolled, it may not be altered by any motion,
or order afterwards made for retaining the caufe; but only by
bill of review, nor fhall a new bill be admitted but upon affi-
davit of new matter (as in cafe of a bill of review) and a fpe-
cial order of court made thereon.
(b) ii Vef. 602. (/) Ord. Chan. J44.Cary, 176
(?) 11 Vef. j6q. & no.
HARRISON'S
PRACTICE
OF THE
HIGH COURT OF CHANCERY;
BY
NEW LAND,
VOL. XL
THE
PRACTICE
OF THE
HIGH COURT
OF
CHANCERY.
By JOSEPH HARRISON,
of Lincoln's inn, esquire.
NEWLY ARRANGED,
WITH THE ADDITION OF THE MODERN CASES.
By JOHN NEWLAND,
OF THE INNER TEMPLE, ESQUIRE, BARRISTER AT LAW.
IN TWO VOLUMES.
VOL. II.
LONDON:
PRINTED BY A. STRAHAN,
1AW PRINTER TO THE KING'S MOST EXCELLENT MAJESTY;
FOR J. BUTTERWORTH, LAW BOOKSELLER, FLEET STREET, 4
AND J. COOKE, CRMOND QUAY, DUBLIN.
1808.
|2I )
CHAPTER THE FORTY-NINTH.
Decrees.
a DECREE is the final order of this court, determining
^* the rights of the matters in queftion upon a full hearing
agreeable to equity, and ordering the parties accordingly. And
it is pronounced in open court by the Lord Chancellor, or
Keeper, Firft Commilfioner, or Matter of the Rolls ; and it
it minuted down by the regifter then fitting in court, who
afterwards ufually reads the fame to the court.
[The decree being pronounced, copies of the minutes taken
by the regifter in court,arc ufually applied for by all parties re-
fpectively, or the feveral parties employing different folicitors
in the fuit ; the party in whole favour the decree is made car-
ries the brief given to one of his fenior counfel to the regifter
of the day, when the caufe was heard ; (for each regifter takes
his turn alternately), and befpeaks the decree to be drawn up ;
the adverfe party ufually befpeaks a copy ; the decree being
returned, and an ofti.ee copy taken by the adverfe party, an
application is made to the regifter to appoint a day for pafling
the decree, which he does by fending a note in writing to the
adverfe party's clerk in court, informing him that the decree
will be palled on fuch a day, and requiring him to bring his
copy, and to attend at the pafling, or that he will pefs the
decree without -him. And if the regifter do alter or not
purfue the minutes, or if the minutes taken at the hearing are
doubtful, or contrary to the plain fenfe and meaning of the
court when the decree was pronounced ; in any of thefe cafes
an application fhould be made before the decree is paffed,
either by motion or petition, that the minutes of the decree
may be rectified, flating therein the fpecific matter to be added
or altered; and upon hearing and confidering the argu-
ment on both fides, the court rejects or adopts the alteration
propofed (a).]
[The decree being palTed, it is to be left with the entering
regifter to be entered (b).]
(The decree appearing by the regifter's fignature to be
(a) Hind. 430 & 431. (£) Hinder,
Vol. I. Y paffcd
312 DECREES-.
paHed, a true copy thereof is entered of courfe into the books ;
fixpence is paid for every fide, and one (hilling duty for every
ten fides. If the party in poffeffion of the original decree
neglects or refufes to enter it, the office copy regularly pallid
and figned maybe entered in like manner as the original. And
where any delay appears in perfecting the entry of the decree,
the office copy of the original decree upon application to the
regifter will be figned by him, if the original has been pre-
vioufly left at the entering books, and the office copy fo authen-
ticated will be fufficient to authorife any proceeding in pur-
fuance of the decree (<:).]
[Original decree was not to be found ; but having been
acted upon by reports, and recited in an order on further
directions, it was allowed to be drawn up from an office copy,
and entered nunc pro tunc (d).~\
[The entry of the decree is reftridted by the courfe of the
court to a certain period : All decrees and difmiiJIons pro-
nounced upon hearing the caufe in this court, are to be drawn up,
figned, and inrolled before the firft day after the next Michael-
mas or Eafler Term, after the fame fhall be pronounced re-
fpeclively, and not at any time after without fpecial leave of
the court (e), fignified by order made upon application by
motion, or petition of courfe to enter the decree nunc pro
tunc (/).]
[The order being drawn up, pnfled, and entered, may not
be reverfed, altered, or explained, except by a rehearing, and
if figned and inrolled, by a bill of review (g)-~\
[Yet in cafe of mifcafling or mifcounting, where the matter
demonftratively appears from the decree itfelf to be miftaken,
it may be explained and reconciled by order (/;). It is to be
noted, that by mifcafling is not to be underflcod mifvaluing, but
only a mifhike in the auditing or numbering (;).}
[On demurrer to anfwer to a bill of review and fupple-rnental
bill to carry a former decree into execution, which wanted to
draw into queftion and have a new examination of the decree,
it was ordered that no matter fhould be re-examined (£).]
[A motion was made, that the ufual direction for the party to
be examined upon fuch interrogatories as the Mailer fhall think
fit, may be added to the decree, though paffed and entered.
No notice had been given of this motion. The Lord Chan-
(c) Hind. 43 x & 432. (j?) 1 Vef. 93.
( 1 1 Vef. 601. (b) Wy. Pra&. Reg. 155.
(*) Ord. Chan. 1 16. (/"•) Ibid.
(/) Hind. 452. (i) 1 Dick. g. 4 Vef. 44®.
cellar,
DECREES. 323
Cellor, however, falci, notice mud be given ; and the motion
having flood over for that purpofe, his Lordiliip finally made
an order, that the Mafter be at liberty to examine the parties
upon interrogatories, inftead of varying the decree (/) ]
[A motion was made that the ufual direction to take an ac-
count of the perfonal eftate may be infertcd in the decree
in a creditor's bill j Per Lord Chancellor : this is fo
purely of courfe, that upon that ground I may interfere 1 , if
there was a fhadow of doubt, you ought to go to the Mailer
of the Rolls, who made the decree, but it is fo very clear,
that you may take the order (>«)•]
[The court likewife in two very tate cafes rectified upon
motion a clear miitake in a decree («)•]
[Bill was difmifled owing to the neglecT: of the plaintiff's
folicitor ; and the order of difmiffion enrolled ; the enrollment
was difcharged, and the caufe reheard (0).]
[A point was argued by leave of the court, on motion to vary
minutes, though irregular (/>).]
[The decree is either interlocutory or final. It very feldom
happens, that the firft decree can be final or conclude the
caufe ; for if any matter of fa6t is ftrongly controverted, this
court is fo fenfible of the deficiency of trial by written evidence,
that it will not bind the parties thereby ; but ufually directs the
matter to be tried by jury upon a iffue (q).]
[So if a que ft ion o" mere law arifes in the courfe of a caufe,
as whether by the words of a will an eftate for life or in tail is
created •, or whether a future intereft deviled by a reftator fhall
operate as a remainder or an executory devife, it is the praftice
of this court to refer it to the opinion of the Judges of a court
of common law upon a cafe Hated for that purpofe, wherein
all the material fa£ts are admitted, and the point of law is
fubmitted to their decifion ; who thereupon hear it folemnly
argued by counfel on both fides, and certify their opinion in
writing to the Lord Chancellor j and upon fuch certificate,
the decree is ufuaily founded. Another thing alfo retards the
completion of decrees ; frequently long accounts are to be
fettled, incumbrances and debts to be enquired into, and
an hundred little fadts to be cleared up, before a decree can do
full and fufficient juilice (r).]
[So it is a general rule that the court will not decide upon
a title without a reference to the Mafter (r).]
(!) 7 Vef. 7.92, 293. (j)) 1 Vef. J. 2 j 1.
(m) 7 Vef. 293 & 294. (y) 3 Black. 452.
{n) 12 Vef. 455 & 4 j<5. (r) 3 Black 452 & 453.
(•) 1 Dick, 61. (s) d Vef, 649.
Y« [When
324 DECREES.
[When all iffues are tried and fettled, and all references ; the
caufe is brought to hearing upon the matters of equity re-
ferved, and a final decree is made (*)].
If the decree is for a foreclofure, or for payment of a legacy
and intereft, or for an account of a truft, or for any other
matter where an intricate account is thereby directed to be
taken j and by the pleadings and proofs already taken in the
caufe you cannot make out a regular charge on the defendant
without further inquiry, then exhibit inteirogatories before
the Matter for examining the defendant, or any of the parties
directed by the decree to be examined, and get their exami-
nations returned as foon as poffible, and then make out your
charge.
And if there are a great many parties, fo that you cannot
conveniently ferve then in the country, then you may on affi-
davit and motion obtain an order that fervice of the order
n'lft on the clerk in court may be good fervice.
After a decree is pronounced, matters of account to perfect
it, may be examined by the Matter, &c, But nothing may
come under examination againft the foundation of the decree.
All parties to the fuit or decree (hall be bound by the decree,
if they are of full age, compos mentis, 8cc. And where any come
in pendente lite, and while the fuit is in profecution, regularly
the dea-ee bindeth them {no).
A decree does not bind the legal intereft of the eftate, but
the perfon only, who may be ordered to convey and allure the
intereft j but it fo far affe&s the title to lands and goods that
by fequeftration and injunction, the court does difpofe of the
pofleffion to the party to whom of right it belongs.
The decree from the time of pronouncing is binding, and an
a& of the court ; all the reft is a fort of ministerial or clerical aft*
Decrees of this court are equal to judgments at law, and
their execution as effectual or more fo (#).
A decree againft an executor was preferred to a judgment at
common law againft him upon its being prior in time (y).
[But it muft be a decree afcertaining the quantum of plain-
tiff 's demand and not a decree quod computet (2).]
[A decree made by confent cannot be fet afide («).]
(/) Hind. 430. (y) Pre. Cba. 79.
(w) 1 Cha. Ca. 150. i») 2 Atk. 385. 1 Vef. 211.
(x) Ca. Temp. Talb. 217. ioVef.34-
1 P. W. 402. Sel. Ca. Cha. 43. (a) 2 Vef. 488.
( 325 )
CHAPTER THE FIFTIETH.
Signing and Inrolling Decrees,
["[ tNTIL the decretal order is drawn up, figned andinrolled*
j ^ it has the force only of an interlocutory order, and is not
final, but maybe altered upon a rehearing (*■)].
[The next proceeding is (if no caveat) is entered againfl figning
the decree, to prefent the docket, to be figned by the Lord Chan-
cellor, or Matter of the Rolls, or both of them, if the latter made
the decree. But previous thereto, the Six Clerk for the party in-
rolling the decree mult, by himfelf or his deputy, examine the
docket with the feveral records, orders of court, &c. therein
mentioned, and of his having fo done, a memorandum in the
nature of a certificate is written at the foot of the laft fheet of
the docket, and figned by the Six Clerk or his deputy, (the
party examining) purporting that the docket agrees with the
records, orders of court, reports, &c. (the feveral proceedings
therein recited), and is examined by the Six Clerk or his
deputy. The docket (b) is lefrby the clerk in court with the
bag-bearer of the Six Clerk's office, and he leaves the fame with
the Lord Chancellor's fecretary of decrees and injunctions to
be figned by his Lordfhip •, if the decree be made by the Mailer
of the Rolls, previous to the figning by the Lord Chancellor,
the fignature of his honour mull be procured ; and for this
purpofe the bag-bearer leaves the docket with his honour's
fecretary of decrees and injunctions, to be figned by the
Mafter of the Rolls, which being done, the laft and final re-
quifite muft be obtained, viz. the fignature of the Lord Chancel-
lor j for whether the caufe was heard before his Lordfhip, or any
of the Judges fitting for him, or before the Mailer of the
Rolls, whoever may have heard the caufe; it is the Chan-
(*) Hind. 442. Rolls to be figned, until it be
•;/•) Note. No decree or dif- figned by the Six Chrk in the
million (hall be prefent ed to the caufe, or his deputy. Ord. Cha,
Lord Chancellor, or Mailer of the 117.
Y -i cellor's
32<5 SIGNING AND INROLLING DECREES.
Cellor's decree, and muft be figned by him before it is in-
rolled (<:).]
And if any decree, difmifhon, or injunction, be made or
granted by any of the Judges fitting in Chancery, it muft be
figned bv them or fuch of them as fhall make the fame, and
after by the Chancellor, before it be effectual (d).
[The bag-bearer leaves the docket with the Lord Chan-
cellor's fecretary of decrees, &c. and the docket is prefented.
by him to be figned by his Lordfhip as of courfe. The day of
the month and year when the docket was figned is written at
the foot of the docket near the fignature of the Lord Chan-
cellor (e).]
The docket being thus figned, you carry the decree to the
clerk of the chapel of the rolls, who, accoiding to the length
of the decree, gives you as many parchment rolls as will inroll
the decree, the clerk of the rolls usually writing upon the lafl
fheet of the decree, which is called the docquet, the day and
year, and his name thereto as a memorandum, that he has
delivered fuch rolls ; on which rolls the plaintiff's clerk in court
or his agent engroffes the decree in a ftrong fecretary hand,
(which before the late act of parliament were alw?.ys inrolled
in a good chancery hand), which muft he word for word as
in the docquet or decree ; but there is no occafion to infert in
the inrolment the Mailer of the Rolls or Lord Chancellor's
names, but only to conclude with the end of the decree j and
when the inrolment is carefully examined with the docquet of
the decree, the plaintiff's clerk in court may carry both over tp
the clerk of the rolls chapel, who will recieve them and give a
receipt for them if you defire it j in whofe cuftody both the
docquet and inrolment are to remain for any one at any time
to infpect, and take a copy thereof, if he require it, upon pay,-
ing the clerk of the chapel lor the fearch thereof, and alfo for
fuch copy.
A decree being pronounced and defendant dying foon after,
the court may be moved to have it inrolled neverthelefs •, for it
may be compared to a judgment at law, which, if given before,
may be entered up after the party's death, and the court has.
ordered decrees in this manner to be inrolled {/).
[A decree may be inrolled on the application of the repre-
fentative of the party who is dead fince it was pronounced (g).~J
[If (inter alia) an account is decreed, and the decree be m-
(c) Hind. 442, 4.43. (/) 2 Cha. Ca. 227. Nelf. Rep,
(d) Vide Ord. Cha. 48, 56, Cha. 169. S. P. 3 Ch. Rep. 73. S.R
(e) Hind. 4*3, 444- ' {g) Wy. Pratt. Reg. 155.
rolled.
SIGNING AND INROLLING DECRELS. 527
rolled, and then the report of the account is confirmed, there
ought in ftri&nefs to be a fecond inrolmcnt of the whole re-
port. But on petition it is often difpenfed with, and the plain-
tiff is allowed to take a writ of execution of the whole without
fuch fecond inroiment (^).j
[But now the court docs noes not fuffer decrees to account
to be figned and inrolled, becaufe it ties up their hands from
relieving, if there fhould have been any defect in the direc-
tion^ of the decree (*).]
[Inroiment of a decree may be opened, if the inroiment
were gained by furprife, and there is any irregularity in it (£).]
[It is difcrelionary in the court to fet afide inrolmcnt of a
decree on circumftances ; as where the plaintiff continued an
infant till near the time of the hearing, or was beyond fea, and
the caufe lb much neglected by the folicitor, that the merits
were not heard (/).]
[Inroiment of a decree was vacated, being too quick, though
ftrictly regular (/«).]
If after pronouncing a decree, a caveat be entered by either
fide to flay the figning, and inroiment of it, the caveat ftayt
the figning and inrolling for twenty-eight days after prefenting
the decree to the Chancellor to he figned and inrolled, and
notice given by his Lordfhip's fecretary to the adv.rfe clerk in
court (//).
[Thecaveat is entered with Lord Chancellor's or his Honour'?
fecretary of decrees, &e. by leaving a note in the following form ,
with the bag-bearer of the Six Clerk's office.
, n , „ t f A. B. plaintiff.
In Lnancery. Between -< <-« ia j r j
; ^ C 1). defendant.
Decree made by his Honour, dated the 3 1 it
day of January 1735.
Enter a caveat againft inrolling this decree,
E. clerk,
28th September 1785 (0).]
The Form ohferved in drawing a Decree.
Lord Chancellor. Friday the 9th day of March
1767, and in the 7th year
of the reign of his Majefty
King George the Third, be-
tween A. B. plaintiff, C. D,
defendant.
(L>) Wy. Praa. Reg 156, (rri) jVef. 526.
(/') 2 Atk. 383. (n) Fide I P. W. 609,
ik) 1 Vern. 131. (0) Hind. 444.
(/) 1 Vef.2Qj,
Y4 « This
3 2& SIGNING AND INROLLING DECREES.
" This caufe coming yefterday as alfo on this prefent day to
be heard and debated before the right honourable the Lord High
Chancellor of Great Britain, in the pretence of counfel learned
on both fides, the fabitance of the plaintiff 's bill appeared to
be {here recite the bill briefly). Therefore that the fa i d defendant
may account, &c. {The prayer of the bill), and to be relieved
is the fcope of the plaintiff's bill. Whereto the counfel for the
defendant alledged, that he by his anfwer admits, Sec. {Here
fet forth the fubjlance of the anjiver *) . Whereupon, and upon
debate of the matter, and hearing the t»ill of the faid E. F.
the anfwer of the defendant, a paper writing or account of the
teftor's hand-writing relating to his eftate marked No. (i), and
the proofs taken in this caufe read, and what was, alledged by
the counfel on both fides, his Lordfliip declared, that, Sec."
{Here fet forth the decree of the court).
But obferve, that if a caufe be heard upon bill and anfwer
only, and the decree be thereupon made, then you fay after
the words " coming on to be heard and debated before,
Sec." " upon the bill and anfwer in the pref-mce of, &c.
Whereupon and upon the debate of the matter, &c. {as in the
order) this court doth think fit, and fo order and decree, and
accordingly it is ordered, adjudged, and decreed, that, otc."
{Here infert the decretal part of the order on hearing).
And if it be a rehearing upon the order on hearing, then after
reciting the order on hearing fay thus, "with which faid
order the faid defendant being difTatisfied, he petitioned his
Lordfhip for a rehearing of the faid caufe, and to have the order
rectified in feveral particulars \ and thereupon by an order
bearing date, 8cc. it was ordered, that the faid caufe fhould
be heard the, See. of, Sec. upon the defendant's depofiting ten
pounds with the regifter {as you find by the words of fuch order).
And the faid defendant having depofited the faid ten pounds
accordingly, and the faid caufe coming on to be reheard in the
prefence of counfel, 8cc. the counfel for the defendant in-
filled that, &c. {Setting forth the fuhftance of the defendant's argu-
ment as recited in the order of rehearing) , whereto the counfel
for the plaintiff infifted that, &c. {Reciting -what the plaintiff ' s
counfel inf fed upon as mentioned in the faid order for rehearing).
"Whereupon this court did declare and decree, See." {according
as it is expreffed infuch order of rehearing). And if upon the re-
(*) Note. Here follow the is always faid upon reading the
words of the order, b ginning at proofs and alio fuch exhibits or
Whereupon ; for where the depo- deeds, if any read at the hearing,
fitions are read at the hearing, it
hearing,
SIGNING AND INROLLING DECREES. 329
hearing, the former order be confirmed fay, ;t Whereupon and
upon debate of the matter, and hearing what could be alledged
by couufel on both iides, this court declared, that the decree
formerly pronounced in this caufe was jufl, and did accord-
ingly order, that the fame mould ft and, &c." (as it is in the
order).
But towards the bottom or end of every decree or difmif-
flon you draw up, in the lait fheet upon the left-hand you
write thefe words, viz.
" It agrees with the records, orders, and report, and is ex-
amined by A. B. for plaintiff."
[Which A. B. is the plaintiff's fix clerk if drawn up for the
plaintiff; but if drawn up for the defendant, then the de-
fendant's fix clerk is to iign it. But if there be only one order,
you fay only order, and if no report in the caufe, you leave the
fame out.
XJVords of courfe ufed in the inrohnent of a decree made upon hill
and anfivcr, the defendant making default at the hearing, viz.
" Whereas heretofore, th.it is to fay, in or about Hilary' Term,
which was in the year of our Lord 1784, A. B. Gentleman,
exhibited his bill of complaint into this honourable Court of
Chancery againit C. D. Thereby fetting forth that, &c. and
further fetting forth, &c. (the bill briejlj fated) \ and to be
further and otherwifc relieved in the premifes, the faid com-
plainant prayed the aid qf this honourable court, and
that the ufual procefs of fubpeena might be thereout awarded
againft the faid defendant to compel him to appear to
and anfwer the faid bill, which being granted, and the faid
defendant duly ferved therewith, he appeared and anfwered
accordingly (/>)•]
\Before the An fiver, viz.
<: And the faid C. D. by his anfwer faid, 3cc. (the anfwer
fet out witting the fchedule and words of courfe concluding the
anfwer) , and denied all unlawful combination and confe-
deracy, and concluded his anfwer with the general traverfe, as
by the faid bill and anfwer remaining, as of record in this
honourable court may more fully appear (7).]"
[Before the Order on Hearing, vfa. |
w And the faid caufe being thus ready for an hearing on the bill
and anfwer, a day was by this court appointed for the hearing
thereof, on which day, being Friday the third day of Auguft
i Hind. 445. (q) Hind. 44J.
1784.
330 SIGNING AND INROI.LING DECREES.
1784, the faid caufe came on to be heard before his honour the
Mafter of the Rolls, in the prefence of counfel learned, for the
complainant; no one appearing for thedefendant, although he
was duly ferved with a Jubpcsna to hear judgment, as by affi-
davit then produced and read appeared. Whereupon and upon
hearing the defendant's anfwer, and what was alledged by the
counfel for the complainant, his Honour did order and decree,"
&c. (the decretal order) (/).]
\JVords f receding the order to confirm the report Nifi, viz.
** And whereas on Thurfday the 18th day of January 1785,
upon motion that day made unto this court by the complain-
ant's counfel" {the order Jet out verbatim) [t).\
\lVords preceding the order to confirm the report abfolute^ viz.
And whereas on Friday the 28th day of January 1785, upon
motion that day made unto this court by the complain-
ant's counfel, and upon allegations that the defendant
had been duly ferved with the faid order of the 18th day of
January then laft as by affidavit appeared, and that no caufe
had been (hewn to the contrary thereof as by the regifter's cer-
tificate alfo appeared ; it was prayed that the faid order might
be made abfolute, which was ordered accordingly («)."]
VJVords preceding the order to make the decree abjo/ute, viz.
"And whereas on Thurfday the [oth day of November 1784,
upon motion made unto this court by the complainant's counfe],
and upon allegation that the defendant had been ferved with a
Jubfoena to fhew caufe againfh the faid decree as by affidavit
it appeared, and no caufe had been (hewn to the contrary
thereof as by the regifter's certificate appeared ; it was prayed
that the faid decree might be made abfolute as againft the faid
defendant, which was ordered accordingly.
\JVords preceding a Majier's report y viz.
" And whereas the laid Mr. Ord afterwards made his report
in the words and figures following" [import Jet out verbatim) (-v).l
[s) Hind. 445, 446. (u) Hinr.446.
it) Hind. 4x6. (v) Hind. 447.
{ 33i )
CHAPTER THE FIFTY -FIRST.
Execution of Decrees.
tT of execution is a procefs of t?iis court reciting an
order or decree of the court (be it final or interlocutory)
or the fubftance thereof, or of fome part thereof, and requiring
obedience to fo much of the ordering part as recited, and con-
cerns the party to perform (c}.]
in order to enforce obedience to a decree, you are firfl to
get it figned and inrolled as aforefaid, and then to ferve the partv
by (hewing the writ of execution of the decree itfelf under
feal of the court, and delivering a true copy thereof.
[When the execution is upon the decree for payment of
money, it mull be perfonally ferved by delivering the party th;
procefs under feal or (which is more ufual) (hewing it him,
and delivering him a copy of it j and if a party to the decree,
himfelf ferves it not, who might, by the immediate authority of
the decree, demand and receive the money, the party that does
ferve it, mull have and fnew the party on whom he ferves it,
a letter of attorney from the other party to receive the money,
and mud demand it ; elfe the not paying it to a fervant will bs
no contempt (£).]
[Though, ordinarily, where the decree is for the payment of
money to the party, he mud be fought out, and perfonally
ferved, &c. otherwife the non-payment will not induce a con-
tempt, yet in fome cafe, if the writ be left with a fervant, and
it appear to have afterwards come to the party's hands, this
will be fufficient (c).~\
[Service of a writ of execution upon the cletk in court in
general is not good ( Vet 3 iy.-
is
333 EXECUTION OF DECREES.
is not to pay the money but to give his client notice to do
it(0-]
[A motion was made by the plaintiff for a fhort order upon
the defendant to transfer' the ftock under the decree in this
caufe, and that fervice upon the clerk in court may be good
fervice ; the defendant being prefent in court when the decree
was made, the motion was granted (/).]
[A motion was made for an order that the defendant fhould
within a fortnight, execute the recognizance in queftion,
fettled by the Mailer, and that fervice upon his clerk in court
may be deemed good fervice ; upon affidavit that he faid he
would not give the fecurity, and that he conceals himfelf and
has no afcertained place of refidence, it was granted (g).]
[Decree for fale of eitate to pay debts; if the party's cferk
in court be dead, a fabpasna adfaciend. attomat. mult taken out,
and ferved before any procefs can go agaiuit the party refufing
to execute the decree (£).]
[Where a party is avoiding fervice, and the clerk in court
is dead, the proper courfe is to move that fervice of zfubposna,
to name a clerk in court, on the folicitor, may be good fer-
vice («').]
If by the decree the defendant is to produce deeds and
writings, or to attend and be examined upon interrogatories,
the ancient rule ufed to be to ferve him with a copy of a writ
of execution of the decree, and mew it him under leal, and at
the fame time to ferve him wth a warrant from the Matter to give
him a reafonable time to produce them ; as where a man lived
in Northumberland he muft have a longer time than if he lived
near the town •, and by the ancient rule, no writ of execution
was ever allowed to be made out, till after the decree was figned
and inrolled.
As this rule was anciently purfued, fo it appears to be well
grounded •, becaufe the party had fair notice to produce them,
and an opportunity of fhewing to the court his reafon for not
doing thereof : whereas now nothing is more common than to
take out two warrants from the Mailer, which are ferved on
thi adverfe party's clerk ; and on his not producing the deeds,
and the Mailer certifying the default, a motion is prefently
made to produce them in four days, or ftand committed, and
this order is ferved on the party's clerk. But why a man's
liberty fhould be taken away, becaufe a Mafter upon a fecond
(e) Wy. Praft. Reg. 207 & (g) 12 Vef. 203.
zoK (A) 1 P. W. 420.
(/) I2Vcf..2D2, g) 12 Vef 2.
^ tummons
EXECUTION OF DECREES. 333
fummons certifies his default, is not eafily to be accounted for,
notwithstanding this is a practice now ufed.
If the party pays not obedience to the decree, on affidavit of
the ftrvice of the writ of execution being filed, you may proceed
to take out all the procefi'es of contempt, as attachment, pro-
clamation, commifhon of rebellion, Sec againft him. And
when the party is taken upon any of the faid procefTes, he is in
ftriclnefs to be ftraitly committed to prifon, and not to be at
liberty till he hath performed fuch part of the decree as is pre-
fently to be done, and given fecurity by recognizance with
fureties, if the court mall fo order, to perform the other part
of the decree (if any be to be performed) at future days and
times appointed.
[So if he continue any confnierable time in cuftody with-
out doing any thing, the court will fet him a day to per-
form the decree, which he upon notice ftill refufing to do,
the plaintiff may caufe him to be brought into court {by aV
habeas corpus and upon motion) and upon his ftill refuiing,
the court will take fuch further courfe as mail feem fit •,
and as for fuch contempt fometimes fet a fine upon him,
and award procefs out of the Petty-bag to the fherirF, where
he hath an eftate, to levy and pay into the Hanaper. If he ftill
continue in prifon wilful and obitinate, the court has fome-
time ordered him to be kept cloie prifoncr, till he mould
perform the decree ; for imprii'onment for breach of a
decree is in nature of an execution (.$).]
And if the decree is for land, and the party continues c'b-
itinate after his imprifonment, the court ufually grants an in-
-1 miction for the pofleflion thereof to be yielded up to him for
whom the decree was ; and if this be difobeyed, after it is
ierved upon affidavit thereof, the court will grant a commiffiou
to the fheriff of the county where the lands lie, to put the party
in poffefiion. And if need be, a writ of affiftance may be had,
which is directed to the fherirF commanding him, to be aiding
and affifting in putting the party in poflcffion (/j.
And obferve, that where a perfon ftands out all procefs
cf contempt to fequeftration, fuch fequeftration is always
granted to four or more commiffioners to fjquefier and take
into poflefiion the real and perfonal eftate of fuch perfon, and
to receive the rents, hTues, and profits thereof, until he has
fully performed the decree or order of the court for which fuch
fequeflration UTued, cleared his contempts, and the court ihail
take other order to the contrary.
[In cafe of fuch contempt and ©bQinacy where money is
t*) Wy. Praft. Reg. ic5. 4 Bro. C.C. 3) Ibid. 396*
Pr. H. Cha. 25. Wy. Fract. Reg.
to The-
\
EXECUTION OF DECREES. 33$
The words after.
(C Therefore we ftriclly enjoin and command you the faid A.B.
effectually to perform, fulfil, and execute all and every the mat-
ters and tilings fpecified and contained in the faid final judgment
or decree, fo far as the fame anyway relates to or concerns you,
according to the tenor and true meaning of thele prefents;
and hereof fail not at your peril. Witnefs, Sec."
Before the Report.
cc And whereas the faid Mafterin purfuauce of the faid order
made his report in the words following/'
Short JVrit cf Execution of a Decree,
iC George the Third by the grace of God, of Great Britain,
France, and Ireland, King, defender of the faith, and fo
forth. To A. B. greeting. Whereas by a certain final judg-
ment or decree lately made before us in our court of Chancery
in a certain caufe there depending, wherein C.D. is complainant,
and you the faid A. B. defendant ; It is ordered and decreed
that you the faid defendant do pay to the faid complainant the
fum of as by the faid decree duly inrolled and remaining,
as of record in our faid court of Chancery doth and may more
fullv appear. Therefore we ftriclly enjoin and command you
the faid A. B., that you do immediately pay or caufe to be paid
unto the faid complainant the faid fum of according to
the tenor and true meaning of the faid decree. And hereof
your are not by any means to fail at your peril. Witnefs
ourfelf at Weftminfter the day of in the
vear of our reijrn."
33 5 )
A 1
CHAPTER THE FIFTY-SECOND.
Exemplifying Decrees.
N exemplification is the copy or example of a matter re-
corded or inrolled. as decrees, letters patent, depositions,
Sec., and is made out i. orn the inrolment thereof, and fealed
with the great feal. And fuch exemplifications are as effectual
to be pleaded or produced in evidence as the decrees, &*c .
themfelves are.
And bills, anfwers, depofitions, See. matters of record are
exemplified, as well as decrees. But obferve, that nothing but
matter of record. ought to be exemplified (a). And therefore
all decrees, deeds, he. mult, be inrolled before they are exem-
plified.
[Though by the 3 and 4 of Edward 6. cap. 4. and 13 Eliz.
cap. 6. an exempli! off© much of a patent as relates to
the matter in queftion is fuffieicnt to make a title under, or to
he pleaded in any court, where the other fide will have time to
refort to the patent, and to be advifed whether the exemplifica-
tion be of all that is material, and if it be nc«t, they may have
advantage of it, yet they do not extend to authorize the giving
fuchexempViucrutons in evidence where the other fide could have
no time toeoniuft the patent roll, and might be furprized and
lofe his right by an imperfect exempli ficatia® (£)._)
An exemplification of a deed may be ordered to be pleaded
at law, where the deed inrolled cannot be produced (c).~\
Proofs cannot be exemplified withou-t bill and anfwer ; and
therefore if a bill be difmified for irregularity or impropriety of
jurifdicdion, &c. as not proper for this court, or where it was
by way of revivor when it mould be by original bill, fo that there
never was any inch caufe in court, the depofnions in fuch
cafes cannot be exemplified, feeing the bill could not (d).
Exemplifications of decrees are docquetted thus, viz.
" In Chancery April 15th, 1767. An exemplification of the
enrolment of a decree in this honourable court, in a cafe
(a) 3 Inft. 137. (c) Toth. 89.
(&) Pre. Cha. 59, Co. (d) Vide I Cha. Ca. 175.
wherein
EXEMPLIFYING DECREES. 337
wherein A B. is plaintiff, and C. D. and others are defendants,
exemplified at the requ.it o , &c.
Examined by us ^ v y \ Matters in Chancery.
And certified thu3, viz.
We the Matters in Chancery whofe names are hereunto
fubferibed, have carefully examined the exemplification men-
tioned in the docquet on the other fide with the inrolment
thereof, and do certify the fame to be a true exemplification
of the laid inrolment.
R. H.
E. F.
And indorfed thus, viz.
An exemplified jn of a decree ih Chancery^ in a caufe there,
wherein, ecc. exemplified at the requelt of, K.c.
And in the like form an exemplification may be of the bill,
dedimut) anfwer, replication, commiflion to examine interro-
gatories, and depofitions, Sec. as follows, viz
George the Third, &c. To all perfons to whom fhefe
prefents (hall come greeting We have infpectcd a certain bill
of complaint exhibited before us in our court of Chancery
remaining filed, and as of record ia the Lid court in the words
following :
We have alfo infpected our commifTion with the Indorfement
thereon, directed to certain commiflioners to take the anfwer
of the aforefaid C. 1). and E. F. to the laid bill, likewife re-
maining Hied in our laid court in the words following.
We have alto infpected the anfwer of the aforefaid defend-
ants taken by virtu: of the aforefaid comm-ilion, and returned
into our faid .court w.th our faid com million remaining filed .in
our faid court in the words following :
Replication,
We have moreover inlpeeted the replication of the aforefaid
A. B» to the anfwer of the aforefaid C D and E. F. remaining
filed, as of record in our faid court in the words following,;-,
& in miff on.
We have likewife infpected our writ directed to certain com-
m; Homers to examine witnefTes with the fchedul
CHAPTER THE FIFTY-THIRD.
Reviving Decrees,
BILLS of revivor of decrees and other proceedings are necef-
fary, where a fuit happens to be difcontinued ; which is
generally by reafon of the death either of the plaintiff or de-
fendant before the decree inrolled.
Where a decree is inrolled, and a party dies, or a female
plaintiff marries, decree and proceedings mufl be revived by a
fubpeena fare facias ; though in cafe of a decree inrolled a revivor
by bill hath been allowed (a).
But where a decree is not figned and inrolled, a bill of revivor
muft be brought.
And it is faid, where one can revive by a fubpeena fire facias
it is in their election to do it either by that procefs, or by bill
of revivor. But where after the decree there have been other
proceedings which cannot be revived by the faid fubpeena , this
lure muft be done by bill (b).
Where the decree was obtained again ft the anceftor, and his
heir does not claim under that title, but by virtue of another title
paramount ; as where an eflate is decreed againfl a man, and
his heir infills his father had not title thereto, or was only
tenant for life thereof, the decree can never be carried into
execution againfl him ; he is at liberty to controvert the juftice
and validity of the decree, and may make a new defence from
what his anceftor did, and vary his cafe as he {hall be advifed ;
and the parties go into new examination of the matter, and
hear the caufe de novo, and the court judges whether the decree
is right or not, and may affirm or reverie it at their pkafure.
But where one man obtains a decree againfl another tor a
real eflate, and the party dies before the plaintiff is put hi pof-
feflion, in that cafe if the heir at law claims the eflate bv
defcent uuder his anceftor or as devifee under him, he {hall
never controvert the juflnefs of die decree, though his anceftor
fiiould have miflaken his defence, nor fhall he be at liberty to
make a new defence or enter into new proof fo as to over-
(a) I Cha. Ca. 37. (J) Vide 2 Cha. Rep. 6j.
Z 3 throw
34° REVIVING DECRIES.
throw the former decree, efpecially when it appears to the
court that the aecree has been of an ancient Handing.
This fubpasna is obtained either on motion or petition, and
muft be ferved two day? at leaft before the return ; in all other
refpecls the iervice is like that of a Jul poena to anfvrer. And on
the return of xhzfubpana, if no cauie be (hewn to the contrary,
the decree will upon affidavit of fervice and a motion to that
purpofe be ordered to {land revived.
A decree was figned and inrolled omitting part of the matter
decreed, and the defendant being dead (fo that there was no
helping it by motion) a bill of revivor was brought to revive
(as was alledged) the part of the decree omitted, though in
truth it extended to the whole decree. To this the defendant
pleads that the decree being inrolled a bill lay not but zfubpesna
fcire facias- But the plea and .demurrer were over-ruled ; and
it was held that fcire facias would only have revived the decree
and the proceedings before it, but not thofe afterwards (c).
[The inrolment of decrees being now much difufed, it is
become the practice to revive in all cafes indifcriminately by
bill {J).]
(0 I Cha. Ca. 7,5. ().]
In the cafe of Arthur Onflow fpeaker of the Houfe of Com-
rnons, King, Chancellor, on the circumflances of the cafe,
and the decree not being inrolled, refufed to difcharge an order
for rehearing, at the diftance of 24 years (*).
. Qn an appeal from the Rolls to the Lord Chancellor, the
(r) Order of the 30th Ap"! E. 13 Geo. 3. Wood. Left.
3701. 4 Bro. C C. 545. V©1 3. p- 396.
(//) Wy. Pratt. Reg. 34. (b\ Ambl. 89. Vide 9 Vef.
(0 8 Vef.55t. ' 172. S. P.
(/) 3 P.W. 8. (i) 2 P.W- 3.
(i) Vernon y. Wells in Cha,
aufe
REHEARINGS AND APPEALS. 343
caufe is open, and the party is at liberty to read new proofs,
and offer what he can againft the decree (I).
But no proof to be read upon a rehearing, that was not read
upon the hearing (/).
It is faid that on an appeal from the Rolls the appellant may
read new evidence, provided he will give up his depofit (m).
In the cafe of Howard v. Colley («) it was ruled, that on an
appeal, the whole cafe is open 5 but on a rehearing, only fo
much as is petitioned againft ; and if all do not petition, it i»
only open to the petitioners.
[On a petition to rehear the caufe by plaintiff, it was held
the caufe is open as to the whole and every part thereof with
refpect to the defendant ; but with refped to the plaintiff, it is
only open as to thofe parts complained of in the petition (0).]
None but parties are entitled to an appeal (p).
If a matter of fact be miftaken at the hearing, &x. it is to
be fet right by rehearing, and not otherwife. But if it be a
fmall miitake, it is fometimes rectified by petition to the Lord
Chancellor or Mailer of the Rolls, who heard the caufe, pray-
ing tnat all parties with the Regifter may attend with the
minutes, and that his Lordfhip or Honour would rectify the
fame : on which an attendance is ordered, and the court make
an order for rectifying the faid minutes, if they fee caufe.
The granting a rehearing {hall not itop or hinder proceedings
on an order or decree appealed from, without the fpecial order
of the court for the fame (r).
[Where a plaintiff in a bill of revivor omitted to pray procefs
againft one oi the defendants, yet fevefal motions being after-
wards made in his name in the fuit, and a commiffion executed
in his name, and then a decretal order paffed, this omiffion was
held to be no caufe for a rehearing ; the defendants having made
this perfon a party by the proceedings, and all having fubmitted
to it, his name mult be ufed as a defendant to the end of the
caufe (s).]
When a caveat is entered to prevent the inrolment of a
decree, there ought to be a rehearing before an appeal.
The court will not rehear a caufe after a decree figned and
inrolled, notwithstanding the caufe had been open lines the
inrolment (/) .
(.*) Pre. Cha. 496. Gilb. Eq. (0) 1 P.W. 300.
Rep. S.C. (p) Villv. l.ane 1726.
(/) Vill v. Lane 1725. Vid e TA -or ? piamtlriS,
Exeeutors of C. D. Efq. J t
T. R. Efq. ' - - defendant.
To the right honourable Lord High Chancellor
of Great Britain,
The humble petition and appeal of the defendant T. R.
Sheweth,
That your petitioner was in the year and for feverai
years afterwards employed by the plaintiff's teftator C B. as
his folicitor in law and equity, and alfo as his agent in divers
other affairs, and particular!) in, getting the teftator a cuftomer
or chapman for his place as and in a fuit which the teftator
profecuted aga.nft one for the recovery of a debt of
about 1500 1., and which was looked upon as difficult to be
recovered.
That your petitioner behaved himfelf in all thefe faid affairs
honeftly, diligently, and with good fuccefs, and to the great
fatisfaclion of the t.itator. ,
That your petitipner about the of April delivered
to the teftator bills of particulars of his cofts and charges, in
which bill fuch bufmefs as your petitioner had done as his
agent as writ" as the law charges were inferred and included,
and in which bills your petitioner had brought to account all
the fams of money which he had ever received from or on
account of the teftator j upon the delivery of which faid
(w) 3 P.W.^242, (y) 10 Vef. 30.
(*) z Vein. 463. (») 3 P-W« 37?«
bills
I?EHE'AT*IN T GS AND APPEALS. 345
bills the faid teftator promifcd that your petitioner's bills
ftould be paid when the debt due from the faid was
recovered .
That the faid debt was recovered, in which recovery
your petitioner had been very ufeful to the teftator, but your
petitioner's debt was not paid ; and then the teftator was
pleafed to propofe that your petitioner's bills fhould be firft
perilled and examined by Mr. and Mr. being
perfons flcilful in fuch affairs, and that then your petitioner's
debt mould be paid, to which propofal your petitioner readily
fubmitted and complied ; and they did accordingly p'feffafe and
exam.ne the lame, and found that your pet.tioner had brought
to an account all the monies that he had received, but made
feveral objections to feveral items in your petitioner's bill
which they reported to the teftator, and informed and laid
before him Inch their objections and their reafons for making
thofe objections, leaving it to the teftatbr ? s difcretion whether
he would allow or difallow of the fame
That ihe testator after he had confidered of the faid objec-
tions, and the reafons of them, declared that he would not
make any abatement of the faid bills on account cf the faid ob-
jections, or to that effect.
That the teftator aft :r he had fufficient time to perufe and
confider of the faid bills, and had caufed them to be examined
into and (hewn to fuch perfons as he thought fit, was pleafed
to come from his houfe at to your petitioner's chambers
on or about the day of when and where lie figned
and allowed of your petitioner's account in the words and
figures following : I do hereby allow an 1 approve of this account t
and I do acknowledge that I am indebted to Mr 2. R.upon the
balance of account the Jam of as above. Wit?iefs mj
hand this day of . Witwfs
That your petitioner apprehended that the faid account
was then clofed, and your petitioner's property in the faid
debt fixed and ascertained.
And your petitioner {heweth that the only hufmefs your
petitioner was afterwards employed in bv the teftator, was to
oppofe the profecution upon a commiflion of lunacy fued out
againft him, upon which account there became due to ycur
petitioner upon the balance the further fum of for his
fees and difburfements, but before your petitioner received
any fitisfaclion for his faid feveral debts the teftator died,
pn or about the day of
That upon the death of the teftator the plaintiff was fo far
from
346 KEHEAR1NGS AND APPEALS.
from making any objections or difpute to your petitioner's faid
two debts, that, they by Mr. their folicitor, made your
petitioner fevcral promifes that your petitioner's debt mould be
paid and fatisfied ; but notwithstanding the faid promifes, and
before your petitioner had begun or commenced any action at
law, the plaintiff in or about term exhibited
their bill in this honourable court againft your petitioner, to
fet afide the faid flated account, and to have your petitioner's
bill taxed, and to have a general account of all monies recei d
and paid, and to have an injunction today petitioner's pro-
ceedings at law ; but the plaintiffs did not by their bill charge
any particular fraud or ill practice on your petitioner in or
about the obtaining the faid ftated account, nor fhewed any
reafon why the fame fhould be fet afide, fave only that they
fuggefted by their faid bill in general terms that your petitioner's
bills of colts and charges were unfair and unreasonable, and
that the teftatcr was prevailed on to allow the faid bill and to
fign the faid account by fraud and impofition, and when the
teitator was not capable of judging rightly what he did, and
within the time when the teitator by virtue of an inqui-
fition found and returned upon a commiffion of lunacy, had
been adjudged to be a perfon of fuch unfound mind, memory,
and imderftanding, as to be incapable of managing himfelf or
his eftate.
To which bill your petitioner put in his anfwer, and thereby
denied all manner of fraud and ill praftice in obtaining the
ftated account, and infifted the fame ought to fland and not be
ravelled into ; and as to the faid inquifition found on the
faid commiffion of luuacy, your petitioner infifted that he was
not bound thereby, being no party thereto, and that the fame
ought not to be allowed as evidence to conclude him ; and
that your petitioner had brought his action at law to recover
his faid debt, where the matter of fa£t whether the teftator
was compos mentis or not, was properly triable by a jury, and
where the complainants might make their proper defence.
That ilfue being joined, witneffes examined, and publication
paffed, the faid caufe was heard before his Honour the Mailer
of the Rolls on the day of when his Honour was
pleafed to order and decree that the faid ftated account fhould be
fet afide, and referred it to a Mailer to tax your petitioner's bills
of fees and difburfements included in that Hated account, as
alfo his bills of fees and difburfements delivered fince the ftated
account.
By which decree your petitioner conceives himfelf aggrieved,
9 fo
REHEARINGS AND APPEALS. 347
fo far as concerns the fetting afide *he faid dated account,
and the new taxing your petitioner's bills included therein.
Your petitioner therefore humbly appeals to your
Lordfhip from that part of the faid decree, and
hnmbly prays your Lordfhip to rehear the faid
caufe, and to appoint fome fhort day for that
purpofe.
And your petitioner (hall ever pray, &c.
We humbly conceive that this caufe is proper to be heard
before your Lordfhip, if your Lordfhip fhall think fit.
c.d!
-54* )
CHAPTER THE FIFTY-FIFTH.
Appeals to Parliament.
THERE are two ways for reverfing decrees of this court,
the one by bills of review in the fame court already treated
of*, the other by appeals in Parliament.
If either party thinks himielf aggrieved by a decree, he may
by petition appeal to the Lords in Parliament, and have the
cjfe reheard there, and they will affirm, alter, or reverfe the
decree as they fee fit.
[This jurifdiclion is faid to have begun in 18 Jac. 1 ; and
certainly the firft petition which appears in the records of
Parliament was preferred in that year, and the firft that was
tried and determined (though the name of appeal was then a
novelty) was prefented in a few months after, both levelled
again! t the Lord Keeper Bacon for corruption and other mif-
hehaviour. It was afterwards warmly controverted in the
Houfe of Commons in the reign of Charles the Second (a) .]
But an appeal cannot regularly be made to the Houie of
Lords, till after a rehearing before the Chancellor, if the caufc
■was heard by the Mailer of the Rolls. Though if a decree be
made by the Matter of the Rolls, and the fame is figned and
inrolled, yet there can be no rehearing thereof before the
Chancellor, but fuch decree mufl be appealed from to the
Houfe of Lords.
[Appeals to the Houfe of Lords muft be prefented within 14
d^y.s, to be accounted from the firft clay of every feffion of Parlia-
ment after the recefs ; after which no petition of appeal will be
received during every fuch fitting, unlefs the decree be made
whilft the Parliament is a&ually fitting ; in which cafe the
appeal muft be prefented within 14 days after fuch decree (£).]
[Crofs appeals mufl be prefented within one week after the
anfwer to the original appeals (r).]
[No petition of appeal from any decree figned and inrolled,
* Vide p. 84. (/ ) Lords' Joum. 8th March
(a) 3 Black. 454 & 455. I7 6 3-
(b) Lords' Journ. 13th July
16-78. of
APPEALS TO PARLIAMENT. 349
er extracted, (hall be received by the Houfe after five years
from the figning and inrolling, or extracting of fuch decree,
arnl t!ie end oi 14 days to be accounted from the ill day of
the felfion next enfuing the faid five years ; unlefs fuch perfon
entitled to fuch appeal be within the age of 2 1 or covert, non
compos mentis , impnfoned, or out of Great Britain, &c ; in
which ( ate fuch perfon may bring his appeal at any time within
five years next after his full age, difcoverture, coming of found
mind, enlargement but of prifon, or coming into Great Britain,
&c. and 14 days to be accounted from the lit day of the ic\-
fions nexteufumg the laid five years. Lords' Journ. 34th March
172c.]
Appeals are to be figned by two noted counfel, and exhi-
bited by way of petition, and lodged with the Cleric of the
Houfe ol Lordi, with whom the appellant is to depofit twenty
pounds to recompence the other party his colls, in cafe he
fails in his appeal. See.
[The counfel figning an appeal, mud be either fuch as were
of counfel in the fame caufe in the courts below, or attena as
counfel at the bar of the Houfe, when the appeal is heard \d .
[The appellant within eight days after his appeal received,
mull give Security to the clerk of the Parliament by recogni-
zance, in the penalty of 200 /. to pay fuch cells to the defendant
in the appeal as the court fhall appoint, in cafe the decree bs
affirmed (/).]
The appeal being thus lodged* and read in the Houfe, the
refpondent is ordered to have a copy of the appeal, and required
to put in his anfwer thereto on t!.e day fixed, and a day is ap-
pointed for hearing the caufe in order as the appeals come in,
and notice is given thereof to the appellant's fblicitor, who may
g°t a fummons terved on the other fide to appear, &c.
(^When an order is n/ade for the refpondent to anfwer by a
time limited, and no anfwer is put in by that time, a peremp-
tory day fhall be appointed for putting in the anfwer without
further notice (/ ). j
[Where anfwers are put in to appeals during the farie
fefiions, and for hearing whereof no day is appointed in fuch
feflion, if neither parry apply within eight days after the ift
day of the next feflion for a day of hearing, fuch appeals ihall
fti.id d.fmiued, but without prejudice to the appellants pre-
(J) Lords' Journ. 3d of March (/) Lords' Joum. 19th Jan.
I6r. 171^.
().]
(I) Lords' Journ. 8th June (n) Lords' Journ, 22d Dec,
*749- .. »7°3-
(/) Lords' Journ. 19th April (0) Lords' Journ. 14th Feb.
1698. 1694.
{m) Lord*' Joura. ad March (/>/ Fide I Vef. 419.
1727.
fOn
352 APPEALS TO PARLIAMENT.
[On an appeal to the Houfe of Lords, no new evidence is
permitted to be read [q).~]
u'l Petition and Appeal to the Houfe of Lords.
t> „ i A. B. plaintiff
between < n n ' ,- .
I C D derendaut.
To the Right Honourable the Lords Spiritual and Temper?.'
In Parliament aftenibled.
The humble petition and appeal of the plain tiff A. B.
Sheweth,
That M. 8cc (fet forth your cafe),
That your petitioner fome time in or about term ex-
hibited his bill in the High Ccurt of Chancery againft the fntd
C. D. to be relieved, &c. (fet forth the prayer of the hill) Ta
•which the faid C D appeared and anfwered, and thereby in-
lifted that, &c (fet forth fuch parts of the anfvver which he
infilled upon againft the plaintiff's bdl).
That your petitioner having replied to the faid anfwer, and the
faid defendant having rejoined, the faid caufe was at iffue, and
divers witneffes being examined on both fides, the fame came
on to be heard before die late Lord Chancellor of Great
Britain the day of I'^j, when, although the faid
C. D. had by his anfwer refpe£tively fworn, &cc (the reafon
admitted by his aniwer and for which you appeal), yet his
Lordfhip was pleafed to decree that, &c (fet forth the decree,
and if there were any fubfequent proceedings before the Mailer
©r the like, fet them forth "briefly).
That your petitioner is advifed the faid decree (and fubfe-
quent orders) are erroneous, and humbly appeals therefrom to
your Lordfhips
Your petitioner therefore humbly prays your Lord-
fhips to grant to your petitioner your Lord- .
fhips' order of fummons to the faid C. D to put
in his anfwer to this your petitioner's appeal,
at fuch time as your Lordfhips fhall prefix, in
order that your Lordfhips may hear the faid
caufe, and that your Lordtnips may be pleafed
to reverfe the faid decree (and fubfequent orders)
in the faid caufe, or grant your petitioner fuch
relief in the premifes as to your Lordfhips in
your great wifdom fLall feem meet.
And your petitioner fhall ever pray, &c.
A.B. (the appellant.)*
Counfel.
I. K. /
(f) i Verru 443,, Pre. Cha. 295.
APPEALS TO PARLIAMENT. 353
The Refpondenfs an fiver.
The anfwer of C. D to the petition and appeal of A. B.
This refpondent not confefTing or acknowledging all or any
of the matters or things to be true, as in and by the faid peti-
tion and appeal are mentioned and fet forth, for anfwer there-
unto faith, that he believes it to be true, that fuch decree (and
fubfequent orders) as are complained of, were made by the
Court of Chancery as in the faid petition and appeal are men-
tioned and fet forth. But as to the dates, fubftance, and con-
tents thereof, this refpondent humbly craves leave to refer
thereunto M'hen the fame mall be produced, and this refpon-
dent humbly conceives, and is advifed, that the faid decree
(and fubfequent orders) are agreeable to equity and juftice, and
therefore humbly hopes that the fame fhall be affirmed, and
that the faid petition and appeal {hall be difmiffed this moil
Honourable Houfe with colts.
L. M. (Counfel).
Vol. I. An
( 354
CHAPTER THE FIFTY-SIXTH,.
Cq/ls.
r/^OSTS In equity are in difcretion of the court upon the
[ ^ circumftances, though he who fails is prima facie to be
taken to be the perfon liable to cofts^ and thofe parties who
depend upon circumftances to govern the difcretion in with-
holding, cofts, muft (hew the exiflence of thcfe circumftances
in a fuificient degree to cut down the prima facie claim of
cofts (fl).J
[Where the party in a fuit for a fpecific performance has not
been able to make out his title before the decree, it is a mate-
rial cireumftance in the confideration of cofts (£).]
[There had not been any demand or rent paid for 3.0 years ;
the perfon entitled recovered upon a verdict ; the defendant paid
the cofts at law ; but as the laches arofe on the part of the
plaintiff, the court would 1 not allow him cofts againft the de-
fendant (c ) .]
[The Mafter reported proceedings under a coramiflion to
examine witnefles irregular ; on exceptions the court thought
them regular, allowed the exceptions, and gave the fuccefsful
party his cofts ; but the order for cofts was difcharged, the
proceedings not being vexatious (//)•]•
[If a party procure an order to be drawn up contrary to the
minutes,, or make any falfe, irregular, or apparently needlsfo
ftep in the caufe, the cofts thereby oecafioned will not be
allowed him .fine litis, though the decree be for him {e).~\
[Cofts do not always follow the event j money was upor^.
account found due to tlie defendant, yet as it was much lei*
than his anfwer claimed, he had no cofts (_/").]
It is faid in the Court of Exchequer, if a man brings a bill
for 5000 /. and recovers only £ /. the defendant fhall pay him-
his cofts throughout ; but not fo in Chancery, for the party
fhall have cofts only fo far as he prevails in his fuit, and it £hal£
(a) 11 VeL^S* (J) ).]
[The court refufed' to allow the cofts of proving a debt
before the Mailer under the ufual decree upon a creditor's
bill (r).]
[A mortgagee, though entitled to the cofts in general, was
not allowed thejn in a cafe, where he having been employed by
the plaintiff as his fclicitor and agent, took a bond and judge-
ment, and mortgage for his bill without any fettlement of
accounts ; and" an enquiry having been direfted as to what was
due to the defendant, great delay and expence were occafioned
by his conducl:, and his demand was reduced to a great deal
more than a 6th (s).~\
[A mortgagee lhall not onerate his pledge with cofls occa-
fioned by his unjuft defence (>).]
[A creditor being decreed to reconvey on payment of what
was due on an eftate in the Weft Indies, acquired by an un-
confeientious ufe of legal procefs, was not allowed cofts fubfe-
quent to the payment of the money into court (w).]
[Where devifee files a bill hi perpetuam rei meniorianij and"
the heir at law only crofs examines the witnefles, he ihal! !
have his cofts ; but if he examines witnefles againft the will he
(hall not (#).]
[Where an heir at law will file a bill to {ct afide a will, in-
ftead of an ejectment, he ihall pay coils, if he fails ; but where
he is brought before the court as a defendant, and an irTue-
direcled, though he fail in overturning the will, the court will
not give cofts againft him (v).]
[Heir at law 3 or heir male to the honour of a family, if pro-
(o7 joVef. 572, (x-\ 3Atk.s87.
(p) I Vef. J. 475, (j) Amb. 163. 2 P.W. 295.
(/-) ro Vef. 355, 3 P.W. 373. 2 Atk.424. 2 Atk\
(s) 7 Vef. 5S4. 388. 3 Ero. C. C. 214. 1 Vef. J,
(t) 1 P. W. 395, 2CJ.
(*>) 5 Vef. 277,
babje
COSTS. 357
•liable caufe to contend for the family eftate, fanll not pay
coils (z).\
[Governors of a charity, though not guilty of corruption,
vet if extremely negligent, fhall pay edits {a).'j
fin charity cafes, the court often gives the relators colts,
beyond the taxed coils ; as otherwife people would not come
forward to file informations (£).]
[An infant by prochein amy br'.ngs a bill, and never ftirs
in it after he conies of age j the infant and prochein amy are both
liable to cods (r).]
f_i'he court refufed a prochein amy the cofts beyond the taxed
cofts (»)•]
[Where a caufe is brought on upon bill and anfwer, if the
bill was difmifled againft any of the defendants, only 40 s. were
paid; but if a plaintiff had a decree with cofts, it was cofts to
be taxed ; but this practice was altered by Lord Hardwicke ;
and where the caufe is fet down upon bill and anfwer only,
or comes on after with-drawing the replication, it is now
difcretionary in the court to difmifs with 40 s. cofis^ or cofts to
be taxed or no cofts (;;).]
[Upon affidavit to the fatisfa£tion of the court, that the
complainant lived beyond fea, he was ordered to enter into
fecurity to anfwer cofts of fuit ; and faid, fo it would be if he
was about to go to live or ftay long there ().]
[But where a folicitor had acted throughout a caufe in the
plaintiff's abfence, and now the bill being difmiffed with colts,
the plaintiff was not to be found, the court ordered the folicitor
to pay the cofts (q).~]
[Security for cofts by a plaintiff beyond fea mould be applied
for,- before time for anfwering is obtained, if it appears upon
the bill, or is in the defendant's knowledge ; otherwife it may
be anplied for in ;.ny ftage of the caufe (r).]
[A defendant after an order for time cannot have fecurity
for cofts, from a plaintiff living out of the jurisdiction (j).]
[The court will not order a plaintiff rending abroad to give
fecuritv for cofts, where there are co-plaintiffs refiding in Eng-
land ; for the defendant has fecurity for his cofts againft each
of the plaintiffs (/).]
(m) 2 P. W. 658. tice generally, but gave a difcre-
(«) 2 Atk. 28S. 3 Atk. 1. fed tion to vary it, if a fpecial cafe;
vide 1 V*f. J. 476. where a mo- were made for it
tion to vary a decree by reducing \o) Wy. Pracf. Reg. 146.
the coffs to 40 j. according to the (p Wy. Pi act. Reg 146.
courfe of the court, as the caufe (q) I Cha.Ca.71.
was heard upon bill and anfwer, (r) 2 Vtf. 2+. 2 Bro.C.C.609.
was granted by Loid Rofslyn, (s) loVef. 287.
who faid, that the order by L. rd (t) 6 Vef. 612,
Hardwicke did not alter the prac-
(The
COSTS. 359
[The fimple fact that the plaintiff is gone abroad is not a luffi-
■tient ground tocompel him to givefecurity for cofts. 5 Vef. 699.]
[YVhere the party lives abroad, 40/. to anfwer cofts is the
old rule ; which, though now very low, is not increafed by
court unlefs on terms («)•]
[Defendant having deftroyed the fubjec~r. of the fuit, and
absconding, (hall find fecurity for cofts ; otherwife the plaintiff
(hall be at liberty to difmifs his own bill, without cofts (iu)J]
[The rule is not fo general, that parties can in no cafe appeal
for cofts only ; in particular cafes the rule has been difpenfed
with (*).]
[llehearings for cofts ought not to be encouraged, becaufe
they are difcretionary ; but fuch rehearings are allowed on
particular circumftances; as where the miftake was fo apparent,
that upon a motion before inrolment, the minutes would have
been altered (jy.)]
[A bill was difmiffed with cofts as to one defendant, but
thofe cofts were given over againft the others (z).]
[Under a joint order for cofts, one of the paTties ab-
sconded and was never ferved j the other may be pro-
ceeded again ft («).]
[After an order to have cofts taxed, the clerk or folicitor for
the party that is to have them, delivers in a bill thereof to the
Mailer, to whom they are referred, who gives the other fide
a copy of the charge (if defired) ; and on requeft he gives out
a fummons for the party to attend him at a certain time, and
fo from time to time rill the whole cofts are -taxed, and .then
he reports the quantum to the court (£).]
[The report being confirmed and the order duly entered,
there may be afubptzna to the party to pay them.; and if not
thereupon paid, the order under feal, or if after a decree the
decretal order and writ of execution ; and if upon due fervice
thereof, the cofts be not paid, then upon affidavit thereof an.
attachment, arid further procefs of contempt to a fequeftration
go forth, if there be occafion (c).}
[An order for taxing a bill of cofts, entitled in the caufe, if
obtained by a party to the caufe is regular, under the general
jurifdicYion () 3 P.W. 386. (J) 3 Atk. 51 i. Mitf. 26 & 27.
friend,
$$2 INFANTS.
friend, the court will direct an inquiry to be made by a Matter,
which fuit is moft for his benefit ; and, when that point is
ascertained, will flay proceedings in the other fuit (*).]
[The next friend is liable to thecofts of the fuit, and to the
cenfure of the court, if the fuit is wantonly or improperly in-
ttituted ; but if an infant attains twenty-one, and afterwards
thinks proper to proceed in the caufe, he is liable to the whole
cofb (/).]
[Where a bill by an infant is difmifTed with cofls upon a fact,
which, if the next friend had ufed reasonable diligence, he might
have known, the next friend will not be allowed the coils out
of the infant's eftaie (g).~]
[##** Whether the next friend of an infant is not entitled to
fair expences beyond taxed coils, under the head of ju(t allow-
ances (#).]
[It was ordered, that the name of an infant plaintiff fhouldbe
ftruck out, that he might be made defendant (/').]
[If an infant defendant reiide within twenty miles of London,
(which is a town caufe) the guardian is appointed in court,
upon a perfunai attendance of the parties; if above twenty
miles (viz. in a country caufe) the guardianfhip is appointed by
commifuon. In a town caufe, the infant having entered an
appearance, the guardian may be appointed any day in term or
vacation ,in court by the Lord Chancellor, or by the Matter of die
Rolls, The infant, and the party intended to be appointed
guardian, perfonally attending, the clerk in court for the infant
prepares a note in writing containing the title of the caufe, and
praying that C. D. (naming the perfon) may be appointed
guardian to A. B. the infant, by whom he may anfwer and
defend the fuit. This note the clerk in court delivers to, and
leaves with, the Regifter, who takes an opportunity of mention-
ing it to the court or to the Matter of the Rolls, if the applica-
tion be at the Rolls; and the perfon offering himfelf as guardian
appearing upon examination to be a proper perfon, the ap-
pointment is made of courfe ; the Regiiler who attended that day
on which the appointment was made, will upon application
(e) Mitf. 26 & 27. he did not proceed after he had
(/) Strange 708. 2 Eq. Ca. attained that age ; but upon a
Abr. 23R. Note. In Turner v. rehearing he changed his opinion.
Turner, 2 P.W. 297. Lord King (j) Q.Vef. 548.
was firft of opinion, that upon a (h) ioVef. 184. fed vide 7 Vef.
bill filed in the name of an infant 424.
who had attained 21, the plaintiff (i) IiVef.563.
was liable to the cofls, although
draw
INFANTS. 363
draw up and pafs the order, which is to be entered and
ferved upon the adverfe clerk in court, like other orders of
courfe (k).~\
If an infant being ferved with a fubpoetta will not appear to a
bill, on affidavit of fening the fubpcena, an attachment iffues
ao-ainlt the infant, and eounfel moves upon the attachment for
an order for the mcffenger to bring the infant into court, and
being brought intu court, and no one offering on his behalf
to be affigned his guardian, the court ufually orders the fenior
Six Clerk not towards the caufe to be affigned his guardian,^ to
appear to the faid bill, and anfwer and defend the faid fuit.
Alfo if an infant appears to a bill, and refufes to anfwer, an
attachment iffues againft him for not anfwermg ; but he can.
not be arretted upon the attachment, but eounfel mud move
the court upon the attachment for a meffenger to bring the
infant into court ; and the court will make fuch order a3
aforefaid. But commonly fome relation or friend of the in-
fant prays the court to be appointed guardian for the infant to
anfwer and defend fuch fuit ; which the court orders accord-
ingly ; and fuch anfwer muft be always fworn by fuch
guardian ; and if the court decrees a guardian to perform a
decree on behalf of the infant, the guardian is obliged to
perform it, and may be committed to the Fleet for difobedience
of fuch decree.
[An infant defendant refiding abroad, his father not interefted
in the fuit, was affigned his guardian for the purpofe of putting
in his anfwer, on motion ; the plaintiffs confenting (/). But in
a fubfequent cafe, the fame motion was refufed, the court
faying a commiffion mull go (?«).]
[To appoint a guardian only to an infant by commiffion, the
defendant's folicitor leaves with his clerk in court commiffioners'
names to be inferted in the commiffion, which is made out by
him ex parte, and when feaied, is fent by the cierk in cocrt to
the folicitor, who acquaints the commiffioners with the nature
of the commiffion, and fettles with them the time and place of
executing it ; two of the corrumifiioners mu>'t att:nd ac the time
and place appointed to open the comon lion, «md the infant
being personally produced before them, and the perfon pro-
pofed as guardian upon enquiry appearing to be a proper
perfon, the commiffioners appoint juch perfon to be guardian
to the infant to anfwer and defend the fuit pij ins behalf ; a
certificate of the appointment mud: be engroffed upon parch -
{h) Hind. Z40. (/) 9Vef. 357. (m) 11 Vef. 563.
ment
364 INFANTS.
merit and annexed to the commiflion, the form whereof is as
follows :
x r ,f t> t f A. B. plaintiff.
In Chancery. Between -c *-. ta 1 r *
; (_C. I), defendant.
To the right honourable the Lord High Chancellor of Great
Britain.
" We whofe names are hereunto fubferibed, in purfuancc of
a commifTion to us and others directed, have caufed CD. the
infant to come before us, who chofe
to be his guardian to defend this fuit on his behalf; and we
fiaVe afiigned and appointed the faid to be his
guardian accordingly, at the the houfe of in in
the county of on the 4th day of November 1783, by
virtue of the comrniiEon hereunto annexed.
R S
T.' Cl („)."]
[This certificate being annexed to the commiflion, the fol-
lowing return is mcSorfed upon the commiflion and fubferibed
by the commifliOtiers ; viz.
" The execution of this commiflion appears in a certain fche-
dule hereunto annexed (0). R. S.
T. C]
[The commiflion with the certificate annexed, is to be fent
to the defendant's clerk in court at the Six Clerk's office, and
the appointment of the guardian is then complete (/»).]
[If the guardian refide in London and the infant in the
country, a commiflion to aflign a guardian only will be fufficicnt,
becauie the guardian may fwear to his anfwer at the public
office ; for although the infant muff be brought before the
commiflioners to have a guardian afligned, the perfonal attend-
ance of the guardian may be, and generally is, difpenfed
with (2).]
[The anfwer being engrofled upon parchment with the ufual
ftamps, the guardian muft attend at the public office with the
certificate, and fwear to the contents of his anfwer j the fol-
lowmgjurata is then inferibed in the ufual manner.
Sworn this day of 1784, by J. C.
guardian of the faid C. D. the defendant,afligned
purfuant to a certificate dated the day of
at the public office in Symond's Inn,
before J. Lames (r).]
(«) Hind. 247. (q) Hind. 242.
(0) Hind. 24S. (r) Hind. 2.j3.
«*=*'•* [The
INFANTS. 3 6s
[The anfwer of the guardian, when brought into the Six
Clerk's office, is to be annexed to the commiffion and certifi-
cate of appointing the guardianfhip, and filed therewith, as in
ordinary cafes (j).]
[Where the infant and guardian both refide above 20 miles
from London, and at a great difbnee from each other, and
cannot conveniently t together, and the guardian's oath to
the infant's anfwer is difpenfed with by order (obtained after
the guardian is appointed) the anfwer properly engroffed being
the defendant's clerk in court to file, accompanied
:. : tii? order for taking the anfwer without oath, the clerk
in court inferibes the date and import of the order on the
record ; the certificate of appointing the guardian is annexed
to the anfwer. which is filed of courfe ; or if the infant and
guardian are circumftanced as before mentioned, and the
infant's anfwer by his guardian is to be put in upon oath,
the guardian may be appointed by commiffion to aiTign a
guardian only, and; after the certificate of fuel: appointment
'is returned to the o.Tice, the anfwer of the guardian may
be taken in the country under a commiffion to take the in-
iant's anfwer by his guardian already alfigned, and the caption
of the anfwer may run thus :
This anfwer was taken, and the above named
j. C. as guardian already affigned to the faid
C. D. the infant, was fworn to the truth
thereof upon the holy Evangelifts, at the houfe
of in theparifh of in the county of
on the day cf 1783, by
virtue of the commillion hereunto annexed
before us, T. C.
E.W.(/).]
[In cafes where the infant and guardian both refide in the
country, and can conveniently meet, a commillion to appoint a
guardian and take the anfwer of the infant by fuch guardian,
is the ufual method of proceeding. To effect this, the de-
fendant's folicitor after fervice of the order for a commiffion,
leaves with his clerk in court commiffioners' names to infert in
the writ ; the plaintiff's clerk in court when called upon, names
commiffioners, with directions to whom of them notice of exe-
cuting the commiffion is to be given, or in default, the com-
miffion may be made out ex parte. The writ fealed is fent by
the defendant's clerk in court to the folicitor j . fix days notice
(s) Hind. 24S. (/) Hind. 34S & 249.
of
3*55 INFANTS.
of executing the commifT:on is to be given to the plaintiff's
commifiioners, as by the label of the writ is directed (unlefs it
ifiuc ex parte) ; the commifiioners and parties having met, the
appointment of guardian is made in like manner as under a
commiffion to appoint a guardian only \ the guardian after his
appointment exhibits his anfwer on behalf of the infant ; and
being duly fvvorn by the commiffioners to the truth of it, a cer-
tificate of the appointment and the caption of the anfwer by
fuch guardian are written at the foot of the anfwer, and fub-
fcribed by two of the commifTioners v or three if the defendant's
commiflioner attend) in the following form.]
To the right honourable the Lord High Chancellor of
Great Britain.
We whofe names are hereunto fubferibed, in pur-
fuance of the commiffion hereunto annexed, to
us and others directed, did caufe C. D. the in-
fant in the faid commiffion named, to come
before us, who chofe J. C. to be his guardian
to anfwer and defend this fuit on his behalf,
and we have alhgned the faid J. C. to be his
guardian accordingly; and the faid J. C. at
in the parifh of in the county of
was this day of 1 783,
fworn upon the holy Evangelifts to the truth of
the anfwer of the faid CD as his guardian,
by virtue of the faid commiffion before us
T. H.
R. V. ( w ).
[The commiffioners fubferibe their names to the caption and
certificate, and annex the anfwer to the commiffion ; the re-
turn being indorfed on the commiffion and fubferibed by the
commiffioners, the whole is folded up, and fent to the de-
fendant's clerk in court in the Six Clerks office ; the formalities
attending the carriage and filing the anfwer are precifely the
fame, as in ordinary cafes of anfwering by commiffion (*•).]
An infant's anfwer by his guardian is not evidence againft
him, becaufe the infant is not fworn, and it is only for making
proper parties (v).
The true reafon why an infant's anfwer is not to be read
againft him is, becaufe, in reality, it is not the anfwer of the
infant, but of the guardian, who is fworn, and not the infant.
And the infant may know nothing of the contents of the
>«) Hind. 350. (*) Hind. 250, ( y) Carth. 79.
anfwer
INFANTS. 367
anfwer put in for him by his guardian, or may be of thofe
lender years, as not to be able to judge of it (z).
[Exceptions will not lie to the anfwer of an infant (a)J]
But where a defendant puts in an anfwer to a bill brought
by an infant, who does not reply to it, in fuch cafe it feems
the anfwer mull be taken to be true •, in regard the de-
fendant for want of a replication is deprived of an oppor-
tunity of examining witnefles to prove his anfwer, and he
ought not to fufi'er for fuch omiihon in the plaintiff. So
ruled at the Rolls with fome warmth by Sir Jofeph Jeykell,
Thurftcn and Decker againft Nulton ei ux. 24 Trin. 1733.
Williams the plaintiff's counfel much oppofed the reading of
the anfwer, for that the plaintiff being an infant could admit
nothing, and it might be very mifchievous, if by reafon of
the neglect of the plaintiff, the infant's guardian or prochnn
amjy in not putting in a replication to the anfwer, fuch
anfwer fhould be read and admitted to be true, though never
fo detrimental to the infant's inheritance. Lies qua re (£).
And an infant cannot be foreclofed without a day to fliew
caufe (which is commonly fix months) after lie comes of age.
[But he is only entitled to fhew an error in the decree, and
cannot unravel the account, or even redeem on paying what is
reported due (V).]
Decrees are but very rarely made againft infants without a
day to fhew caufe (which is commonly fix months) after they
come of age. But if lands are devifed to be fold for payment
of debts, they may be decreed to be fold without giving an
infant heir a day to fhew caufe; for nothing defcends to him j
but otherwife if he be decreed to join in the fale (d). Or
where the legal eftate is in truflees, and an execution of
the truft is to be directed •, there is no occafion to give the
infant cefluique trujk a day to fhew caufe (e).
[A partition of lands will be decreed againft infants defend-
ants [f) ; and in Brook v. Lord and Lady Hereford (g), a par-
tition was decreed on a bill by an infant, the conveyances to
be executed, when plaintiff fhould come of age.]
[An infant aggrieved by a decree is not obliged to ftay till
he is of age before he feeks redrefs ; but may apply as foon as
(z) 3 P.W. 237. (f) Thornton v. Elackbourne,
{■•0 4 Bro. C. C. 356. 12th May 1731. Temp. Ca. King
(£) 3 P W.2^7. C. 2 Kel.7.
(c) 3 P.W. 352. (/) Ambl. 197.
().]
A bill by a bond creditor againfl the heir and executor of the
obligor, to have fatisfa£lion for the debts due upon a bond out
of real and perfonal affets ; the heir infills that as to him the
parol ought to demur ; for that he is an infant, and the bill
charges his intercfl which came to him by defcent from the
obligor ; the parol fhail demur until the defendant comes to
full age, as well here as at law j and ordered that the caufe
(/>) I P.W. 505. (tn) Mofely 203.
(i) 1 P.W. 505. 2 P.W. 401. («) 2 P.W. 519. 3Atk.62<5.
2 Atk. 531. Vide Mofely 67.
(i) Mofely 308. (0) Wy. Pratt. Reg. 225.
(/) Mofely 313. (J>) Wy. Pratt. Reg. 225.
ftand
INFANTS. 3^9
ftand mjlat'u quo until the infant heir comes of age ; but as to
the othtr . ! ferl ' .it, the executor, he was decreed to account
and tn-iks fatisfafHon oat of the perfonal eftate, as far as
the fame would extend [q).~\
[Inf.un tr fees or mortgagees are enabled to convey under
the direction or the court of Chancery or Exchequer, the eft L es
they hold in truit or mortgage, to luch perfori as the court
03 Ji appoint ,
[An infant truftee was ordered to convey an eftate in Cal-
cutta (■) under '.he ftatute 7 Anne, c 19. An eftate alfo in
Ireland was ordered to be conveyed by an infant mortgagee
under the lute {t .]
[Art infant truftee is never ordered upon petition under the
ftatute of 7 Anne, to convey to another truftee upon truits to be
exec ted. That mull he by bill, praying to have a new truftee
appointed, and conveyance (w).]
[The nece'iFary colts of an infant truftee ordered to convey
under the ftatute of Anne, v. ere allowed (x) J
(The order under the ftatute of 7 Anne, for the reference to
the Mailer as well as thai; for the infant to convey, niuft be on
petition, not motion (j).] "
\A Dedimus toaffigna Guardian onIy%~\
te George the Third by the grace of God, of Great Britain,
France, and Ireland, Kings defender of the faith, and fo
forth. To (infert commi(Iioners) greeting. Whereas A. B.
complainant hath lately exhibited his bill of complaint before
us in our court of Chancery, againft C. D. defendant, but for
as much as the faul C. D. is an infant under age, and cannot
defend this fuit without having a guardian affigned in that
behalf : Know ye therefore, that we have given unto you, any
three or two of you, full power and authority in pursuance of
the fpecial order of our faid court, to aflign and appoint a
guardian for the aforefaid infant ; and therefore we command
you, any three or two of you, that at fuch certain day and place
as you mall think fit, you go to the faid defendant if he cannot
conveniently come tojou, and affign and appoint a guardian for
the aforefaid infant ; and when you fhall have fo done,
you are to fend clofed up, a certificate of your having afltghe'd
(.7) Wy. Praft. Rig*. 222. et (') 5 Vef 240.
vide 1 Vera. 173 & 428. 3 P.W. (t) 6 Vef. 9%.
368, Gi!b. (6. Ca. Temp. Talb. [10) 5 Vef 242 & 3.
198' 3 Atk. 117. (*) 10 Vef ?54.
(r) 7 AuneC. 10. . (y) 3 Vef. 96.
Vql. I. B h arid
37» INFANTS.
and appointed fuch guardian as aforefaid, and tins writ unto
us in our faid Chancery (without delay or other return) where-
ibever it {hall then be. Witnefs ourfelf at Weftminlter this
-day of in the year of our reign.
Seweii Sewell."
Indgrfedj by order of court.
Label. To (infert commiiTioners) any three or two
of them, a dedimus to aflign a guardian for CD.
an infant defendant, to anfwer at the fuit of
A. B. complainant, returnable (without delay).
Sewell Sewell (z.]
A Comm'iJfiQii to ojjigti a Guardian* and to taie the avfiuer by
fuch G&ardiatt.
" George the Third by the grace of God, of Great Britain*
France, and Ireland, King, defender of the faith, and fo forth.
To greeting. Whereas A. B. complainant hath lately-
exhibited his bill of complaint before us in our court of
Chancery, againit CD. defendant : And whereas we have by
our writ lately commanded the faid defendant to appear before
us in our faid Chancery at a certain day now part, to anfwer
the faid bill ; but for as much as the faid C. D. is an infant
under age and cannot anfwer the faid bill nor defend this fuit
without having a guardian aligned in that behalf : Know ye
therefore, that we have given unto you, any three or two of
you, full power and authority in purfuance of the fpecial order
of our (aid court, to aflign and appoint a guardian for the afore-
faid infant, anil to take the anlwer of the faid infant by fuch
guardian to the faid bill : And therefore we command you,
any three or two of you, that at fuch certain day and place as
you fhall think fit, you go to the faid defendant if he cannot con-
veniently come to you, and aflign and appoint a guardian, for
the aforefaid infant, and take the anfwer of the faid infant by
fuch guardian to the faid bill, on fuch guardian's corporal oath
upon the holy Evangelifts, to be adminiftered by you, any
three or two of you j the faid anfwer being diftin&ly and plainly
written upon parchment ; and when you fhall have fo taken
the faid anfwer, you are to fend the fame clofed up under the
feals of you, any three or two of you, together with your cer-
tificate of your having affigned and appointed fuch guardian as
aforefaid, and this writ unto us in our fold Chancery
wherefoever it mall then be, See."
(%) Hind. 242, 243.
huhrftd^
INFANTS. 37*
Indorfed, by order of court.
Label. To (infert commiflioners) any three or two
of them, a commiflion to appoint a guardian for
and take the anfwer of CD. an infant defendant,
at the fuit of A. B. returnable (without delay)
on fix days notice to the plaintiff's
commifTioner to whom notice is directed to be
given. Seweli Winter.
A Commiflion to aflign a Guardian y and U take the Infant's Anfwer
and the Anfwers of other Defendants.
" George the Third by the grace of God of Great Britain*
France, and Ireland, King, defender of the faith, and fo forth.
To greeting. Whereas A. B. complainant hath lately
exhibited his bill of complaint before us in our court of Chan-
cery againft C. D., E.F., and G. H., defendants : And whereas
we have bv our writ lately commanded the faid defendants to
appear before us in our faid Chancery at a certain day now
part, to anfwer the faid bill j but for as much as the faid CD.
is an infant under age, and cannot anfwer the faid bill nor
defend this fuit without having a guardian afligned in thatbe-
half : Know ye therefore, that we have given unto you, any
three or two of you, full power and authority in pursuance of
the fpecial order of our faid court, to affign and appoint a
guardian for the aforefaid infant, and to take the anfwer of the
faid infant by fuch guardian, and the anfwer of the faid other
defendants to the faid bill : And therefore we command you,
any three or two of you, that at fuch certain day and place as
you (hall think fit, you go to the faid defendants if they cannot
conveniently come to you, and aflign and appoint a guardian
for the aforefaid infant, and take the anfwer of the faid infant
by fuch guardian, and the anfwers of the faid other defendants
to the faid bill on their corporal oaths upon the holy Evangelilts,
to be adminiitered by you, any three or two of you, the faid
anfwers being diftin&iy and plainly written upon parchment ;
and when you (hall have fo taken the faid anfwers, you are to
fend the fame clofed up under the fealsof you, any three or two
of you, together with your certificate of having afligned and
appointed fuch guardian as aforefaid, and this writ unto us
in our faid Chancery wherefoever it fhall then be.
Witnefs, &c."
B b 2 A Commiflion
372 INFANTS.
A Ccmm'iJJion to take the Infant's Anfiver by his Guardian already
ajjigned him, and the A: fiver of another Defendant.
" George the Third by the grace of God, of Great Britain,
France, and Ireland, King, defender of the faith, and fo forth.
To greeting. Whereas A.B. an infant, by his next
friend complainant, hath lately exhibited his bill of complaint
before us in cur court cf Chancery v againft C. D. 2cc. de-
fendants : And whereas we have by our writ lately commanded
the faid defendants to appear before us in cur laid Chancery
at a certain day now paft, to anfwer the faid bill : And whereas
the faid C. D- hath a guardian aire: >'.y °iT:gned him. Know ye
therefore, that yre have^ ^"Ci^ ur.to yen, any three or two. of
you, Full jpower* and authority to take, the anfwer rf the faid
defendant CD. en infant, by his guardian already affigncd him,
and the anfwer of the laid ether defendant to the faid bill ; and
therefore we command you, any. three or !ao of you, that at
fuch certain day and place as \ou fhajl think fit, you go to the
faid defendants if they cannot conveniently tome to you, and
take the anfwer of die faid defendant the infant by his guardian
already afligned, and the anfwer of the other defendant to
the faid bi'l, on their corporal oaths upon the holy Evangelifts,
to be adrriinift'efed by you, any three or two of you, the faid ■
anfwers being difimclly and plainly written upon parchment;
and when vr'u mail have fo taken the faid anfwers, you are to
fend th< fed iip un'def the ft als of yen, any three or
two of you, and this writ unto us in our faid Chancery
wherefoever it mall then be. "Wiracfs, kc."
A Commiffion to take the Plea, A > fiver, or Demurrer cf Infants^
by their Guardian already ajjigned.
» George the Third by the grace of God of Great Britain,
France, and Ireland, King, defender of the faith, and fo forth.
To greeting. Whereas A. B. complainant hath lately
exhibited his bill of complaint before us in our court of Chancery
again ft C. D. and E. F. infants defendants : And whereas we
have by our writ lately commanded the laid defendants to ap-
pear before us in our laid Chancery at a certain day now pafly
to anfwer the faid bill-, and when -as the faidC. D. and E. F.
are inianrs,and have a guardian already afligfted them. Know
ye, that we have given unto you, any three or two of you, full
power and authority in purfuance of the fpecial order of- our
faid court to take the plea, anfwer, or demurrer of the faid in-
fants to the faid bill by their gu^dian already afligned; and
therefore
INFANTS. 373
therefore we command you, any three or two of you, that at
fuch certain days and place as you foall think fit, you go to
the fa# f! defendants if they cannot conveniently come to you,
and take the aniwer of the faid infants by their guardian already
afligned to the faid bill, on fuch guardian's corpora! cath upon
the holy . ft -, or their plea on their guardian's corporal
oath m be adminiftered by you, inv three or two of von, upon
the hclv Ev 'tigehils, or their plea and demurrer without oath
to be refpeeliv.ly made to the faid bill, the faid anfwer, plea,
or demurrer being diitinctly and plainly written uoon parch-
ment- • a nd when you fnall have fo taken them, you are to fend
the fame clofed up under the feals of you, any three or two of
you, unto us in our faid Chancery wherefoever it fliall
then be, together with this writ. Witnefs, 8cc."
Indorfed by order of court.
Label. To (cornmiffioners) any three or two of
of them, a commiihon to take the plea, anfwer,
or demurrer of C D. an infant, by his guardian
already aihgned, at the fuit of A.B. complainant,
returnable (return) on fix days notice to
Sewell Winter.
A Comrnrfjlon to affign a Guardian for an Infant, the Guardian
formerly ofjlgned being dead.
ec George the Third, 8cc To (commilhoners) greeting.
\Vb/ reas A. B. complainant hath lately exhibited his bill of
complaint before us in our court of Chancery againit C. D.
defendant ; and whereas we. have by our writ commanded
the faid defendant to appear before us in our faid Chancery at
a certain day now pall, to anfwer the faid bill •, but for as
much as the faid defendant being an infant under age, could
not anfwer the faid bill nor defend this fuit without having a
guardian, aihgned in that behalf, a commillion iiTued out of our
faid court for affigning him a guardian for that purpofe, and
he accordingly put 'in his anfwer by J. W. his guardian (who
is fmce dead] : Know ye therefore, that in punuance of an
order of our faid court dated the d,,y of we have given
unto you, any three or two of you, full power ana authority to
afiign a new guardian for th .! d fendant the infant, by
whom he may defend this fuit : And therefore we command
you, any three or two of you, that at fuch certain day and
place as you {hail think fit, you go to the faid defendant if he
cannot conveniently come to you, and afiign and appoint a
guardian for the laid defendant the infant, and when you (hall
B b 3 have
374 INFANTS.
hare fo done, that you certify the name of fuch guardian, and
your having afligncd and appointed fuch guardian, fairly and
diftinttly written upon parchment, and fend the fame clofed
up under the feals of you, any three or two of you, unto us in
our fajd Chancery (infert return) wherefoever it (hall then be,
together with this writ. Witnefs ourfelf at Weftminfter, &c.
Sewell Zinke."
Indorfed by order of court.
Label. To (commiflioners) any three or two of
them, a dedimus to affign a guardian for C. D.
defendant (the former guardian being dead ) at
the fuit of A. B. complainant, returnable with-
out delay. Sewell Zinke
( 375 )
CHAPTER THE FIFTY-EIGHTH.
Feme Ctverts.
r A MARRIED woman being under the protection of her
I ** hufband, a fuit refpe&iug her rights is ufually inftituted
by them jointly. But it fometimes happen?, that a married
woman claims fume right in oppofition to the rights claimed by
her huiband, and then the hufband being the perfon, or one of
the perfons to be complained of, the complaint cannot be made
by him ; in fuch cafe, therefore, as the wife being under the
difability of coverture cannot fue alone, and yet cannot fue
under the protection of her hufband, fhe mud feck other
protection ; and the bill mud be exhibited in her name by her
next friend, who is alfo named in the bill in the fame manner,
as in a cafe of an infant (a) ; as where fhe fues him for per-
formance of a marriage fettlement or the like. Alfo a feme
covert hath been allowed to fue here in her own name, when
her hufband was beyond fea j fo in a cafe where a hufband re-
leafed the wife's debt.]
A feme covert who has a feparate maintenance, may fue
alone (b). So may a wife whole hufband is banifhed by Adt
of Parliament, and may a£t in every thing as a feme fole (c).
The woman and her hufband agreeing to part upon dif-
ference, and he giving her a fum of money for her livelihood,
which was put into a friend's hand for her, fhe was allowed to
fue alone for this without her hufband (d).
A woman divorced from her hufband caufafrigiditatls, fued
in this court for her portion, her father being alive, and re-
covered it (e).
[A married woman, though fhe cannot by herfelf inftitute a
fuit, and if her hufband is not joined with her, muft feek the
protection of fome other perfon as her next friend, may yet by
leave of the court defend a fuit feparately from her hufband,
(a) Mitf. 27 & 28. (J) Cary's Rep. 87.
(i) i Cha. Ca. 35. ( e ) Barrow's cafe.
(c) 2 Vern. 104.
B b 4 without
376* FEME COVERTS.
without the protection of "another (/*). Thus, if fhe claims
in oppofition to any claims of h r hufband, or if fhe lives fepa-
rate from him -(g), or difapproyes the defence he wifhes her to
make (/&), fhe may obtain an order for liberty to defend the fuit
feparately (i) .]
[The wife cf an exile, or one who has abjured the realm,
may defend*, as fhe may fiie, alone ; and if a hufband is out of
the jur fdi£Vjon of the court, though not an exile, or if he
cannot be found (k), his who may be compelled to anfwer fepa-
rately. If a married woman obftinately refutes to join in
ace with her hufband, (he may alfo be" compelled to make
a i" fc ]) £ ii\.te defence 5 and for that p'urpofe an order may be ob-
tained ilia t preens may ifihe againit her separately (/) ]
[Liberty was given lo a woman defendant, charged, by the
bill lo be married to another of the defendants, to anfwer fe-
parutely, but without prejudice to any queltion as to the vali-
dity of the nihil 'cage (m).~\
[Though ordinarily the wife mufl not anfwer alone, yet
uhciethe plate had (many years before) been, depofited v. tii
her, and the bill was brought againit the hufband and her, and
he being in Ireland could not be biought to anfwer, lire was
ordered tq anfwer alone («).]
[But it is not a ground lor the wife's anfwering alone, that
her hufband is in pnfon (o).j
[If a hulband infills that his wife put in an anfwer con-
trary to what fhe believes to be the fa/t, and by menace pre-
vails upon her to do it, this is an ahufe cf the precis cf the
court, and r he may be commuted fur the contempt -(/r).]
[If fire anfwef alone without leave, or order of the court,
the anfwer will be quaflied upon' moticn ; for regularly the
anfwer. of a feme covert, i> feparate, ought to have an order to
warrant it ; but if the feme covert's f parate anfwer be put in
without an order, and the Lmc be a fair and honeft anfwer,
and deliberately put in with the confent of the hufband, and
the plaintiff accepts it, and replies to it,, the court will not at
the motion of the wile, or her executor fer it afide (q)-~\
1 he wife's anfwer differing from her hufband's (hall not
prejudice him. j as where fhe is executrix and confeffeth a truft,
•
■■(f) 4 ViiuAbr. 147. im\ 1 Pick. 1C5.
. (g) . -f-Cii. 429. (") Wy. Pratt Reg. 53,
(h) 2 Atk. 50. (0) 2 Vef. J. 332.
(*) Mitf. 95. (p) a Atk 50.
(/•) ha. 3,3. („) 2 P. W. 371.
(/) j Ch.Ca.296. M:t f .e6.
which
FEME COVERTS. 377
which he denies •, one witnefs is not fuflicient to prove the
trull .?•).
[liaron and feme defendants to a bill, the feme mull anfwer
though the anfwer cannot- be read againft the hufband. but
may pofiibly be read againft her, if flic furvive ; but ihe is not
bound to anfwer if tending to fujbjeci her to a forfeiture,
though the hi (band has fubmitted to anfwer (.r).]
[A hufban * bringing a bill againfl: a wife is admitting her
to be a feme iol", and the rauft put in her anfwer as fuch (t).]
[Sir R ■ .1 Brookes Was piaintiff againft Ins Lady and
others , a motion was made to have her committed for not
anfwer in ; interrogatories ; but the court would not grant it,
and declared a man could riot be plaintiff in this court againft
his wife: this was moved again, when the court was of
opinion that, though a man eoul^ not have a baaragniuit his
wife fi.r difcoverv of his own rftate, yet where before marriage
fhe enters into articles concerning her own eftate, ihe has made
hcrfelf a feparate perfon from her hufband, and therefore Ihe
was ordered to anfwer in a week's time (iu) .]
[The hufband ought to caufe an appearance for his wife as
well as himfelf (#).]
[If in a fuit here the wife be m contempt for any matter, the
hufband is alfo ordinarilv liable to procefs of contempt and
commitment, as the cafe requires ( v) ]
[Attachment againfl hufband an I \a ife for want of the wife's
anfwer was flayed as to the hufband, and liberty given to
attach his wife (z).]
[You cannot regularly fevve the wife with a fitbpxna ad re-
fpondendum wthout her hufband, though. the matter in queilion
do only concern her [a) ]
[Bill againft hufband and wife, and fulpcenas taken out
againit both, and ferved upon the wife -, but the hufband could
not be found, and neither of them appeari ig, an attachment
iflued againft both, and the wife was.taken up. who moved to
be difcharged on affidavit that her hufband was gone to Hol-
land before the filing of the bill, and chat the procefs againfl
her without her hufband was irregular ; but the court was of a
different opinion (£).]
(r) 2 Cha. Ca. 39 & 173. (y) Wy Praft. Reg. 53.
(s) 3P W. 238. (a) 1 k-i. 373.
(/) 3 Atk. 178. (a) 7 Toth 13.
).]
[Colts are not allowed to the party taking out a commiflion
of lunacy which is traverfed with faccefs, however meritori-
ous the cafe ($r).]
[Any fair and reafonable provident application as to the exe-
cution of a commiflion of [lunacy, is not difcouraged. But a
petition having been prefented which was wholly groundlefs,
was difmifled with cofts (r).]
[Commiflion of lunacy was ordered againft a perfon who
was at Saint Venant in France, to be executed in Ellex where
his manfion was (5).]
[It is a contempt of the court to keep back a commiflion of
lunacy for years without putting it in execution, and the com-
miflion was difcharged with colts (r).]
[The return to a commiflion of lunacy that the party is fo
far debilitated in his mind, as to be incapable of the general
management of his affairs was quafhed, and a new commiflion
ifiiied " melius inquirendum'" not ifiuing in lunacy (iv) ]
[If the return be not in the words of the commiflion, itmufl
have equivalent words j and in fuch cafe, the proper return is,
that the party is of unfound mind, fo that he is not fufhcient
for the government of himfelf (at).]
[Where there is any mifbehaviour in the execution of an
inquifition of lunacy, it may be examined into and quafhed, and
a new commiflion iflued (v).]
[ The Lord Chancellor inclined to quafh the inquifition, the
commiflion not having been executed near the place of abode
of the lunatic, and the order that the lunatic fhould have due
notice, having been difobeyed (z).]
[It was held no objecYien to the return of an inquifition
finding a perfon a lunatic, that it does not ftate that the lunatic
has or has not lucid intervals («).]
[A traverfe to the return of an inquifition finding a perfon
lunatic, is a right by law ; though the Lord Chancellor is not
(0) I P. W. 702. (w) 12 Vef. 44.5.
\p) ia Vef. 455. (x) 12 Vef. 445.
(?) 5 Vef. 832. (y) 3 Atk. 6 & 7.
(r) 6 Vef. 579. O) 7 Vef.*6i.
(;) Ambl. 109. 2 Vef. 40k {a) 5 Vef. 450.
(/) a Atk. 52.
diflatisfied
LUNATICS. 383
diflatisfied with the return upon the evidence. The order
therefore will be fufpended for the purpofe of taking the
traverfe (£).]
The perfon who is found a lunatic, or any perfon on his
behalf, may neverthelefs enter a caveat with the fecretary
againfl the petition for the commitment of his perfon and eftate,
and may then petition the Chancellor, that the commiffion may
be fuperfeded upon his being infpecled and examined in open
court, which his Lordfhip will anfwer accordingly, and appoint a
day for that purpofe ; againft which time the lunatic fhould pro-
cure affidavits of two or three of the mod eminent phyficians
with regard to his fanity and capacity of being able to take care of
himfelf and manage his eftate ; for the court will not without
pretty ftrong evidence, fuperfede the commiffion after he is
found a lunatic by the jury.
A woman that was found an idiot by inquifition prayed by
herfelf and counfel, that fhe might have leave to traverfe the
inquifition, and the Lord Chancellor King, after afking her
feveral queftions, made an order accordingly, upon condition
(he fiiould appear in perfon at the faid trial at the next affizes,
or whenever they brought it on (c).
Earl Ferrers petitioned the court that the inquifition might be
quafhed, the commiffion of lunacy fuperfeded, and that he
might have his liberty, being reftored to his fenfes ; and he
appeared perfonally in court with his filler Lady Betty Shirley,
the committee of his perfon, and Do£tor Monroe ; the Lord
Chancellor after hearing evidence on both fides, made an
crder that the Earl fhould have his full liberty, but that the
cajfetur of the inquifition, and the fuperfedeas of the commiffion
mould be fufpended 'till the firft day of petitions before Michael-
mas Term (d).
[A perfon having an intereft under a contract with the
lunatic, was permitted to traverfe (e) .]
[Upon the return of the traverfe to the inquifition of lunacy,
the jury found that the party was a lunatic at the time of her
marriage, and at the time of taking the inquifition, but at that
time (the verdicl;) was not a lunatic ; the commiffion was
fuperfeded ; but the Lord Chancellor doubted the propriety of
fuch a double iflue (/).]
Upon the return of the inquifition, fome near relation or
friend petitions for the cuftody of the lunatic's perfon. and in
(3) $Vef. 45 o. («r) 7 Vef. 261.
(O Mof. 71. (/) 5 Vef. S33.
{d) Mof. 532.
c the
384 LUNATICS.
the Line petition the. perfon who will be entitled to his real
or perform! el T ai:e at his dt \t\ prays the care and management
of the lunatic's eftate ai d efFe£rs
[lire;. petition, praying a r fefcence to a Miller as to the
ftate of ,'mind f the plaintiff, and.btr, u'-tnnc -and fo< main-
tainance, thepropefty being too fei .11 ro bear a e^nimiffion of
lunacy, an order was made, upon affidavits without reference,
for payment of the dividends to* the two criming cuarttis {g).~}
[The old rule, that the next of kin of a lunatic, if entitled
to his eftate up :n ! p death, was not to be committee of the
perfon, is not i.o<> adhtred to {h).]
[77: f petition is in th : f J lowing form :
In the matter of a lunatic.
To the Right Honourable the Lord High Chancellor of Great
Britain.
The humble petition of the only brother and
next of kin of the faid lunatic and alfo Lis heir,
Sheweth,
That purfuant to your Lordfhip's order of the 12th day of
February laft, made upon the petition of your petitioner a com-
nnilion in the nature of a writ de lunalica inquirendo was
awarded and iflu eel, directed to certain commiihoners therein
named to enquire of the lunacy of
That the faid commifiion hath fince been duly executed on the
2Cth dav of February lad pad, before the major part of the com.
miilioners in the faid commifiion named ; and thereby it is found,
that the faid is a lunatic, and that he is notfuiheient for
the government of himfelf, his manors, meiluages, lands, tene-
ments, goods, and chattels, and that he has been in the fame
ftate of lunacy from the 15th day of June 1708 ; and it was by
the faid inquifition further found, that the faid tl . lunatic,
had not alienated any lands or tenements during his lunacy, to
the knowledge of the faid jurors, and it was by the faid in-
quifition further foun 1, that the faid was pbffeffed of
{here fate the lunatics property). And the jurors upon their
oath laid, that your petitioner is the only brother and
nearer heir of the faid lunatic, and that the faid lunatic is of
the age of fifty years.
That your petitioner is very defirous, that the perianal cibte
of the faid lunatic may he duly taken care of, in fucn manlier
as is neceflary and ufual m cafes of this nature,
795. {h) ; Vef. 591.
That
LUNATICS. 385
That for the fafety of the eflate of the faid lunatic, your pe-
titioner is defirous that the flocks fo (landing in the lunatic's
name in the books of the Governor and Company of the Bank
of England, may be transferred to the Accountant General of
the Court of Chancery in trufl in this matter.
Your petitioner therefore molt humbly prays your Lord-
fhip, that the care and cuflody of the perfon and eflate of the
faid lunatic may be granted to your petitioner , he giving
fuch fecurity as is ufual in the like cafes, and that your peti-
tioner may be ordered to transfer into the name and with the
privity of the faid Accountant General, in trufl in this matter
the faid fums of confolidated three per cent, annuities,
and reduced three per cent, annuities,, fo refpcc~lively
Handing in the name of the faid lunatic in the books of the
Bank, or that your Lordlhip will be pleafed to make fuch
further or other order in the premifes as to your Lordfhip fhall
feem meet. And your petitioner fhall ever pray, See. (*').]
[The petition mufl be fupported by affidavit of the relatiotl-
fhip of the petitioner to the lunatic, and left at the fecretary
for lunatics (where all petitions for any purpofe in matters of
lunacy are anfwered) for the Lord Chancellor's order thereon ;
when anfwered, the order mufl be filed at the office of the clerk
of the cuftodlesy and an office copy thereof had from thence ;
wherever a transfer is directed, or the order is wanted for any
purpofe at the Accountant General's office, the order mufl be
drawn up at the Regifler's office ; for which purpofe a dupli-
cate of the order fhali be taken from the fecretary of lunatics,
and left at the Regifler's office, who will draw up the order,
which mufl be pnfied and entered (£).]
[The Lord Chancellor's order appointing the committee
being made, the grant of cuflody of the lunatic's perfon and
eflate may then be obtained. Affidavit mufl be made of what
property the lunatic is entitled to \ which is to be left with the
order and office copy of the commiflion and inquifition at the
office of the clerk of the cnjiodies^ who files the fame, and will
procure the Attorney General's dire&ions refpecling the
amount of the fecurity, to be given by the committee on taking
the grant, and will afterwards prepare the bond and affidavit
of the fureties of their fufficiency, on the names and defcrip-
tions of two perfons as fureties being left with him for that
purpofe ; all thefe matters being fettled, the affidavit fwom to
by the fureties before a Mafler in Chancery, and the bond
(0 1 Turner's Pratt, of Ojan. (*) Ibid. 483 & 484.
Vol. T 9 C c executed,
tfti LUNATICS.
executed, and an affidavit of the due execution thereof being
made (all of which the folicitor procures to be done), and left
at the clerk of the cujlodies office, he will make out the grant
arid procure the fame to be fealed (/).]
[The committee may then petition for maintenance for the
lunatic j the petition fhould ftate fhortly the ifluing of the
commiflion, the inquifition on finding the lunacy returned ; the
grant of cuftody, and praying that it may be referred to one of
the Matters of the Court of Chancery, to confider of what is
proper to be allowed for the maintenance of the lunatic (*«)•]
[This petition being anfwered and the order left at the
Mailer's office, a ftate of facts and propofal for the main-
tenance fupported by proper affidavits muft be laid before the
Mafter, who will require that a fcheme for the future eftablifh-
ment of the lunatic's houfe, if his fortune is large, mould be
laid before him, in order that he may form his opinion on the
propriety of the fame, and the fum required to fupport it («).]
[When the report is made, it is to be filed with the clerk of
the cujlodies, and an office copy made thereof, and petition pi e-
fented to confirm it ; this petition will ftand in the paper of
petitions in lunacy before the Lord Chancellor, and will be
heard in its courfe ; a confent fhould be given for the next of
kin, if necefiary •, and the order being made will be drawn up
by the fecretary of lunatics, at whofe office the folicitor mult
call for it ; and if any directions to the Accountant General to
make purchafes, transfers, or payments, a duplicate of the
order muft be drawn up at the Regifter's office, as before
directed (0).}
[By an order of the Lords Commiffioners made the 15th
December 1792, it was ordered that all receivers and com-
mittees of lunatics fhould pafs their accounts once a year, and
the Matters are defired to certify at the fecond feal after every
Trinity Term, the ftate of the receiver's and committee's
accounts in their refpeiStive offices.]
[The committee muft petition that he may pafs his accounts ;
the petition may be in the following form :
In the matter of a lunatic.
To the Right Honourable the Lord High Chancellor of Great
Britain.
The humble petition of efquire, committee of
the eftate of the faid lunatic,
Sheweth,
That a commiflion having iflued to enquire of the lunacy f
(I) 1 Turner, 484, («) Ibid. 485.
im) Ibid. 485. (0) Ibid. 485 486c
the
LUNATICS. 387
the faid , he was by inquifilion duly taken thereon the
20th day of February 1 799, found to be a lunatic :
That in purfuance of your Lordihip's order made in this
matter for that purpofe, a grant of the cuftody of the faid
lunatic's eftate on the 20th day of April 1803, patted the
great feal to your petitioner :
That your petitioner as committee of the faid lunatic's eftate
hath received and paid diver fums of money on account of the
faid lunatic, and his eftate, and is defirous to pafs his ac-
count thereof:
Your petitioner therefore humbly pray? your Lordfhip, that
it may be referred to the Matter to whom this matter is al-
ready referred, to take and pafs your petitioner's accounts
of receipts and payments of the faid lunatic's eftate from the
time he was appointed committee thereof, and therein to
make unto your petitioner all juft allowance, and particu-
larly an allowance of his cofts of palling the faid accounts,
and all other cofts incurred in this matter.
And your petitioner fhall ever pray, 8cc. (p).]
[Cofts to the committee of the lunatic were refufed, becaufe
he had not paft his accounts regularly, though no fraud (^).J
Mr. Bumpton's two fillers were appointed committees o£
his perfonal eftate ; and they now joined with him in a petition
that the commifiion might be fuperfeded, the inquifitjon
quafhed, and the bond vacated, the lunatic being recovered of
his indifpofition ; and he appeared in court, and was examined
by Lord Chancellor King ; and as it fufficiently appeared the
condition was performed, and as Mr.Bumpton, who was the
only perfon interefted, was in court, and had declared himfelf
well fatisfied that his filters had done their duty and given him
a fair account, an order was made according to the prayer of
the petition (r).
[Repairs made without a previous order, though reported
neceffary, were not allowed to the committee of the lunatic's
eftate (s).]
[Where no one could be procured to act as a committee of a
lunatic, a receiver was appointed with a falary, but to be con-
sidered and to give fecurity, as a committee (/).]
[By flat. 4 G. 2. cap 10. idiots and lunatics, 8cc. or their
committees by the direction of the Lord Chancellor, may afTign
(/>) 1 Turner 486 & 487. (j) 10 Vet 104. llVef.397.
{q) iVef. J. 296. (t) i©Vef. 622.
(r) Mof.78.
C c $ ©vet
3 88 LUNATICS:
over their trufls or mortgages, and be ordered to make fuch
conveyance, in like manner, as truftees or mortgagees of fane
memory]
[A man found non compos before the fenate of Hamburgh
was confidered a mortgagee within the fiat, of 4 Geo. 3. c. 10.
and was directed to convey (w).]
(A perfon found a lunatic by a competent jurifdiclion abroad,
aiay be confidered a lunatic (x) ]
[A perfon mull be found a lunatic by commifiion to warrant
an order by the Court on him to convey under the flatute of
4 Geo. 2. chap. 10. (v).]
[By 36 Geo. 3. c. 90 ,when truftees of flock fhall be lunatics,
or fhall refufe to transfer the flock, or it fhall be uncertain or
unknown .whether they are living or dead, it fhall be lawful for
the Courts of Chancery and Exchequer refpe£tively, in any
caufe depending, to order that the Accountant General, or the
Secretary, or Deputy Secretary for the time being, of the Go-
vernor and Company of the Bank of England, to transfer the
faid Mock into the name of the Accountant General of the Court
of Chancery, or of the Deputy Remembrancer of the Court of
Exchequer in trufl in fuch caufe, or otherwife into the names of
the perfons equitably or beneficially entitled, as the cafe may
require, and as to the faid Courts fhall feem fit.]
[Stock was ordered to be transferred under the flatute of
36 Geo. 3. c. 90., the truftee being of unfound mind, though
no commifiion had iffued, and having actually refufed to tranf-
fer ; though the refufal appeared to arife from weaknefs of
mind (z).]
[A lunatic abroad, under a judicial proceeding in nature of a
commifiion of lunacy, is not within the flat, of 36 Geo. 3. c. 9*.
8 Vef. 316.]
(w) 1 Vef. 098, (y) 2 Vef. 587.
(*) a Vef. 588, (a) 4 Vef. 360.
( 3*9 >
CHAPTER THE SIXTIETH.
Paupers.
IT often happens that fome perfons may have right to an
eltate, yet not wherewith to profecute the fame, or elfc
may be profecuted or made parties to a fuit as knowing much
therein, yet have not therewith to make either defence or dif-
covery ; in fuch cafes this court (which delights in juftice and
mercy) wdl admit fuch poor perfons either to fue or defend in
forma pauperis.
Both plaintiff and defendant may be admitted in forma pau~
peris in the fame caufe. But this hath been complained of as
an abufe ; for that it tends much to the difquiet of the court,
and encourages the parties to be vexatious. Yet where it is a
matter of conteft, and the matter feems dubious, the court
will admit both plaintiff and defendant to fue and defend in
forma pauperis.
But here it is necefTary to obferve, that there are many pau-
pers who bring only vexatious fuits ; who biing detected, and
the court informed thereof, they (hall not only be difmiffed,
but punifhed.
[The privilege of fuing as paupers extends only to perfons
fuing on their own rights, and not as executor or adminiftra*
tor (a).]
The method of obtaining fuch admiffion is, firft, for the
party to make an affidavit before a Mailer, that he is not worth
in all the world the fum of five pounds, his juft debts being
firft paid, and his wearing apparel and the matters in queftion
only excepted ; and then to draw a petition to the Mafter of
the Rolls, praying to be admitted in forma pauperis, and to have
Counfel and a Six Clerk afBgned him, naming whom, in the
petition.
[The affidavit to ground the order to fue formd pauperis muft
be by the party, and not by a third perfon (b).]
When the plaintiff petitions, he muft at the bottom of his
petition (which differs from the form of a defendant's petition,
being fpeciul according to the circumltances of the cafe (have
(a) i Dick. 130". {0) a Bro. C. C. aa.
C c 3 a certi-
39 o PAUPERS.
acertificate under the Counfel'shand,figned atthe bottomof the
petition, fignifying that he has juft caufe of fuit, and although
the bill be filed, he muft have a fpecial petition fhortly ftating
the merits of his caufe, and counfel's certificate to be admitted.
[It is faid in Prac Reg, 319, that if the bill be already filed
no certificate is necefiary.]
But if a pauper defendant petitions, he only draws a very fhort
petition to be admitted to defend the faid fuit in forma pauperis ,
and praying that counfel and a fix clerk may be afligned him,
and there is no occafion for any certificate.
This being done, and the affidavit annexed to the petition,
he prefents the fame ; and if there appears no caufe againft it,
the Maftcr of the Rolls underwrites an order for the peti-
tioner's admiflion, according to the prayer of his petition.
And after admittance, no fee, profit, or reward (except
pauper's fees) is to be taken of the pauper by any counfel or
attorney for the difpatch of bufinefs, whilft it depends in
court, and he continues in form fi pauperis : Nor (hall any con-
tract or agreement be made for any recompence or reward
afterwards. And if any perfon offending herein Ihall be dis-
covered unto the court, he (hall undergo the difpleafure of
the court, and fuch farther punifhment, as the court ihall
think fit to inflicl:. And if any pauper offended herein, he
ihall be difpaupered, and never again be admitted in the fame
fuit \n formuz pauperis (t).
And if it be made appear to the court that any pauper has
fold or contracted for the benefit of his fuit, or any part
thereof, while the fame is depending, fuch caufe fhall be thence-
forth wholly difmiffed, and never again retained.
But although the clerks take no fees, ftri&ly fo called, of a
pauper, yet they may make him pay for the labour of writing,
which is after the rate of two-pence per flieet.
Formerly no procefs of contempt at a pauper's fuit was to
be fent to be fealed until figned by the fix clerk, who was to
take care it mould not be vexatious or needlefs. But this is
now altogether difufed. But the order of admifiion is ufu-
ally produced in the office, where the pauper has occafion
to pafs.
And as a party may be admitted in forma pauperis at any
time during the fuit, fo he may be difpaupered at any time upon
its being made appear to the court, that he is of fuch ability
that he ought not to be in forma pauperis. And in a cafe of
this nature, where it was fhewed to the court, that a pauper
{f) Vide Ord. Chan. 152,
was,
PAUPERS, 391
was in poffefiion, and received the rents of the land? in quef-
tion, the court ordered him to be difpaupercd, though the de-
fendant had a verdict at law, and might thereupon take a writ
of po0eflion.
[An affidavit that the defendant is not worth more than 5I.
except the matters in queftion, will not entitle him to defend
in forma pauperis \ on that ground he was difpaupercd (*/).]
If a caufe goes agamft a pauper, he {hall not pay cods
to the defendant ; but he may be punifhed perfonaily as the
court fhall think fit ; yet fuch punilhment is very feldom in-
flufted.
Plaintiff", a pauper, had a decree for the duty and cofts ; the
mallei taxed colts as ufual for perfons not paupers. On motion
the court ordered plaintiff and his folicitor to make oath before
the mailer of what they had paid, or were to pay, and that to
be allowed, but no further (e).
[If upon hearing a caufe, it is ordered that a pauper de-
fendant's colls fhall be paid out of the ellate, the court will
upon motion order that he fhall have dives colls taxed (/").
A perfon by getting hnnfelf admitted a pauper, cannot dif-
charge hjmfelr of colls he was liable to, precedent to his ad-
mi ilion (g).
[Where an iilue is directed out of Chancery in a pauper's
fuit, he mu it be admitted as a pauper in the court in which
the iffue is to be tried, and cannot otherwife proceed in it as a
pauper (/;).]
[A plaintiff* fuing in forma pauperis fhall not amend by leav-
ing out defendants, without paying their cofts (:').]
[A pauper fhall not difmifs his hill without cofts (*).]
[He mull pay the colts of fcandal(/).]
(d) 11 Vef. 491. ted in the progref. o^the caufe to
(/) 2 E<|. Ca, Abr. 633. Pre. proceed in it as a pauper, hemuft
Chan. 219 and 220. find fecurity for cofts already in-
(/ ) Wallop v. Warburton, curred to the amount of 40 s.
nth March 1795. "Fowler 484.)
(&) Mof. 68. (Wilkinfon v. (Aj Ca. Temp. Hard. .31 u
Cafamajor, 17 Nov. 1787, and (i> Wy. Pratt. Reg. 321.
2 Bro. 272. ace. In the Exche- (/>) 3 Bro. C C. 87.
auer, where a party is admit- {l> Toth. 237,
Cc
( 39* )
CHAPTER THE SIXTY-FIRST.
Solicitors,
r- A Solicitor is a perfon, that folicits and manages caufes in
! -^ this court for fuitors (a).~]
[Solicitors arc modern officers of the court, compared with
clerks of court (£).]
[The court on motion or petition will order a folicitor's bill
to be taxed by a Mailer j and if on payment, or tender and refufal,
of what is taxed, he refufes to deliver his client's writings,
according to the order, the court will grant an attachment
againft him (c).~)
[But money paid before the taxation will not make a good
payment of any part of what is taxed ; becaufe that mould
have been fhewed before, and would have been allowed by the
Mailer in the taxation (d) .]
It was ordered that, without a caufe in court, upon the general
]urifdi£tion over folicitors, a folicitor ihould deliver his bill for.
the purpofe of getting from him title deeds depofited with him
for fuffering recoveries (e).
[A folicitor delivered his bill, does bufinefs, after brings his
action at law, and has judgment ; the defendant brings error;
the writ of error is fpent, the defendant prays here to have
the bill taxed, and the Mailer taxes only colls of this court,
nothing being offered by the folicitor of his colls at law; the
court was about to order that on payment of fifteen pounds,
the cofts taxed by the Mailer, the folicitor Ihould deliver up
writings, 8cc for it was his own fault that he attended not the
Mailer nor charged the reft ; but at length upon the folicitor's
paying forty (hillings colls, the parties were fent back to the
Mailer ; who was alfo to tax the cods at law, and what had fincc
(a) Wy. Pracl. Reg. 395, pnpers in his hands, he cannot
(b) 6 Vef. 687. flop the progrefs of the caufe till
(e) Wy. Piacl. Reg. 395. he is paid. 13 Vef. 161. Schoal ;
Though where a party changes & Lef. Rep. 315.
his folicil or, the former folicitor (d) Wy. Pract. Reg. 39 J.
has a Hen for bis cofU upon (#) 6 Vef. 435,
accrued
SOLICITORS. 393
accrued for bufinefs done in the court after the bill delivered.
The report to be made in a week and proceedings at Liw to
(lay. But it was faid it is more regular that the cofts at law-
be taxed by the proper officer, and ther. brought before the
Mafter (/).]
[A man may have a bill for fees due to him as fo'icitor if
for bufinefs done in this court •, and fo he may, where the
bufinefs is done in another court, if it relates to another
demand which he makes in this court (g).]
[Such parts of the bill of fees as relates to cofts at law or in
the court of Exchequer, the Mafter will not tax ; he will fend
the bill by his clerk to the refpe&ive officers of the court, where
the bufinefs has been done, with a requeft that they will tax
thofe parts of the bill ; and the ufual proceedings, as appoint-
ments, &c. muft be taken as in taxing cofts under an order
made by that court*, and when the cofts for the bufinefs done
there have been taxed, the Mailer's clerk or the clerk to the
officer taxing the bill muft return the bill fo taxed to the Mafter
in Chancery. If the bill contain charges for conveyancing
bufinefs, the Mafter iri Chancery will proceed upon and tax
thefe charges ; he will go through the whole bill referred (h).~\
[By the a6l of 2 Geo. 2. c. 23. f. 23. no attorney cr folicitor
{hall commence any aelion for any fees at law or in equity,
until the expiration of one month or more after fuch attorney
or folicitor {hall have delivered unto the party or parties to be
charged therewith, or left with him, or her, or them, at their
dwelling houfe or laft place of abode, a bill of fuch fees ;
which bill fhall be fubferibed with the proper hand of fuch.
attorney or folicitor refpe£livcly ; and upon application of the
party or parties chargeable by fuch bill, to the Lord Chancellor,
the Mafter of the Rolls, the court of Exchequer, or unto any
of the courts in the faid acl mentioned, and upon the fubmif-
fion of the party or parlies or fuch other perfon authorized,
to pay the whole fum, that upon taxation of the faid bill fhall
appear to be due, it fhall be lawful for the faid Lord High
Chancellor, he. to refer the faid bill (although no action or
fuit fhall be depending in fuch court touching the fame) to be
taxed and fettled by the proper officer of fuch court, without
any money being brought into court for that purpofe. And if
the folicitor having due notice, fhall refufe or negle<£l to attend
fuch taxation, the faid officer may proceed to tax the faid bill
ex parte (pending which taxation no aelion fhall be commenced
or profecuted touching the faid demand) and upon the taxation
(/) Wy. Prad. Reg. 39S, (h) 1 Turner's Chan. Praft.
(j) I Vern. 203. 392. V'tdt 3 Bro, C.C, 234.
and
394 SOLICITORS.
and fettlcmcnt of fuch bill and demand, the party {hall forth*
with pay to the faid folicitor the whole fum that fhall be found
to be or remain due thereon ; and in default thereof the party
fhall be liable to an attachment. And if upon the taxation and
Settlement, it fhall be found that fuch folicitor happens to have
been overpaid, fuch folicitor fliall forthwith refund and pay
unto the party entitled thereto, all fuch money as the faid
officer {hall certify to have been fo overpaid ; and in default
thereof the faid folicitor fhall in like manner be liable to an
attachment ; if the bill taxed be lefs by a fixth part than the
bill delivered, then the folicitor is to pay the coils of the taxa-
tion, but if it fhall not be lefs, the court in their difcretion fhall
charge the attorney or client in regard to the reafonablenefs or
unreafonablenefs of fuch bills.]
[A perfon who willies to get his folicitor's bill taxed, and to
feave all deeds, papers, Sec. in his hands delivered up, may
proceed either by petition to the Mailer of the Rolls, or by
motion. ]
[This petition muft be engrafted, and left at the Secretary's
office in the Rolls-yard, and the next day it will be anfweved.
The petition thus aufwered is to be carried to the Regifter
office to be dr^wn up. The order is next to be entered with
the proper entering clerk at the fame office j the order is then
perfect (/).]
flf the court be fitting, in term time, or at the Seals before
or after term, the application may be by motion, giving in-
ftrucTions to counfel with the title of the caufe to move that the
folicitor may deliver to the party applying (plaintiff or de-
fendant) a bill of fees and difburfements, with the ufual direc-
tions. This is a motion of courfe ; the motion paper muft be
taken to the fitting Regifter of the day ; and he will draw
up and pafs the order ; which is to be entered as before
direfted (*).]
[To put this order into force, it fhould feem that a writ of
execution of the order cannot be regularly iflTued, the folicitor
not being a party to the fuit. A copy therefore of the order
muft be made and ferved upon the folicitor perfonally, by leaving
the copy, and fhewing the original order palled and entered,
at the tune of fervice (/).]
[If the bill of fees and difburfements be not delivered as
:lirecied in the order after the expiration of the time limited
(!) i Turner, 3S5 & 335. (I) Ibid.
(*) Ibid.;, 86.
for
SOLICITORS. 39$
for delivery of the bill, another application muft he made
by motion, and a notice of fuch motion Served as the orders
were ; and an affidavit of the fervice of the notice, and that
the bill of fees, &c. has not been delivered as by the order was
directed, muft be made and filed in fupport of the application ;
and counfel muft be inftructed to move that the folicitor may
ftand committed for difobedi-mce and contempt of the order,
in not delivering a bill of fees, See. as directed •, upon this
motion the court ufually makes an order that folicitor deliver
his bill of fees, Sec. in four days or a week, or that he (land
committed, Sec. and that fervice of the order upon the folicitor's
clerk at his chambers mould be good fervice. This order
muft be drawn up, pafied, and entered at the Regiftcr office
with the Regifter, who attended the court when the motion
was made. If the folicitor, after fer.ice of this order, perfift in
not delivering a bill of fees and ditburfements, a further ap-
plication to the court muft be made by motion fupported by an
affidavit made and filed of the fervice of the laft order, and that
the folicitor hath, in contempt and difobedience thereof, not
delivered a bill of fees, 8cc. as by the order directed, and
counfel muft be inftru&ed to move, that the folicitor may
ftand abfolutely committed ; which the court will order (tn) .]
[If the folicitor obeys the order, the order and the bill of
fees and dilburfements delivered by the folicitor muft be taken
to the Mailer's office, to whom the reference is made ; a
warrant on leaving the bill of cofts muft be taken out, and a
copy ferved upon the folicitor or upon his clerk at his chambers
or his houfe for carrying on bufinefs ; and when that is return-
able, a warrant muft be taken out to tax the bill of cofts, and
ferved in like manner, and the petitioner's folicitor and his
clerk in court muft attend the warrant. If the adverfe party do
not attend this, (which is the fecond warrant) a third warrant
muft be taken out and ferved as before, and attended by the
folicitor and clerk in court ; and if there be no attendance on
the other fide to fupport the bill of cofts, the Mafterupon oath
of the fervice of three warrants, will, if required, proceed ex
parte, and tax the bill («).]
[An enquiry into the payment made to, and the monies
received by, the folicitor, is made by preparing and filing inter-
rogatories for the examination of the folicitor (o).~\
[The certificate when figned by the Mailer will be delivered
out to the party taxing the bill. The certificate muft be filed at
{he Report office.]
(w) Ibid. 387 & 388. («) Ibid. 396. (0) Ibid. 393.
[This
395 SOLICITORS,
[This being a certificate of coils only, needs no confirma-
tion (p).]
[If the Mailer certifies a balance to be due from the folicitor,
a copy of the report mult be ferved upon the folicitor, and a
notice that the petitioner intends to move the court for an
order for payment of the balance reported due. An affida-
vit that the fum reported due is owing and unp^idj, and
of the fervice of a copy of the certificate, and of the notice,
jjhould be made and filed, and an office copy obtained. The
court upon hearing the affidavit and certificate read, will
make an order for payment. If at the expiration of the time
appointed by the order, the money be not paid, another appli-
cation mud be made by motion, that the party may ftand
committed for difobedience of the order in not paying in the
money thereby directed, grounded upon an affidavit of the
money mentioned in the certificate being due, and of the
fervice of the order, and that the party has not paid the money
as by the order he was directed ; and the court will make an
order that the partv do Hand abfolutely committed accord-
[If the bill of fees, Sec. fo taxed be lefs by a fixth part than
the bill delivered, the attorney or folicitor mull pay the colls
of the taxation, which is to be obtained by motion or petition
to his Honour, as of courfe. A notice of this application need
not be ferved upon the folicitor. Inftrudtions muft be given to
counfel to move for the coils occafioned by the taxation of the
folicitor's bill, and that it may be referred back td the Mailer
to tecs fuch coils, and an office copy of the Mailer's certificate
cf taxing the colts muft be produced, and the court will make
tlie order as of courfe (r) .]
[In the court of Exchequer, in taxings folicitor's bill, where
2s. only made the difference, and it was thought hard that for
this fmail fum the folicitor thould be puniihed with coils, the
court laid they could not enter into that consideration ; the acl
of parliament had ib adjudged it; and the folicitor was ordered
to pay the colls of taxation (j).]
[The folicitor in applying for the coils of the taxation, in
cafe his bill upon the taxation appears to be not lefs by a fixth
part than the amount of the bill delivered, mull ihew to the
court by affidavit, that his bill was reaibnable and fair, as ajfo
that by die Mailer's report a fixth part of the bill has not been
(f>) r Turner, 396. (r) Ibid 39^ & Z9$>
(g) Ibid. 396 & 3970 (j) Fcwler^.
1 1 takea
SOLICITORS. 397
taken off. A notice of this motion mud be given to the
client (t).]
[It feems that a folicitor can maintain no charge for drawing
his bill of fees and diiburfements (tu).\
[Charge* for journies by folicitprs in the country to attend
the hearing of caufes are never allowed by the Mailer (*).] _
[Agency bills may be referred for taxation ; the proceeding
is the fame as between folicitor and client (y) ]
[Upon petition, a folicitor's bill was ordered to be taxed -„
the folicitor moved (though it was faid he ought to have
petitioned, becaufe the matter came in by petition) to difchargc
the order, upon affidavit that the-e had been a running acc«-
between the client and him, fome of the money being lent a:i&
fome for bulinefs, that an acconnt of the money had been given,
and that the red for bufmefs was as per the items in the follci-
tor's book, which had been fhewed the client, and the whole ac-
count had been agreed to and figned, and the Touchers delivered
up, andfo prayed that the account might not be ftirred, Sec. %
but the court was fo far from difcharging the order, that it
ordered it mould ftand, and the folicitor to pay the colis of the
motion out of what fhoukl be coming due to him, and ordered
the vouchers to be produced before the Mailer upon oath (z).]
[A folicitor having taken a judgment of his client for 400 1-,
whilft the caufe was depending, and alfo feveral extraordinary
charges appearing in "his bill, Lord Hardwicke, though the
bill had been adjufted and allowed feventeen years ago, referred
the bill to be taxed, and ordered the judgment and other fecu-
jritie* to be delivered up («).]
[A folicitor fuing for his bill need not ftate all the circum-
ftances required by the ftat. 2 Geo. z. chap. 23. being matter of
evidence (b) .]
[The court will not flrike a folicitor off the Rolls at his owa
requeft, without an affidavit that there is no other rcafon for the
application (c).]
(/) 1 Turner's Cka.Praa. 399. («) Wy. PradV Reg. 39$ *-
(to) Ibid. 397.
(*) Ibid. 400. (a) z Atk. 205 k 098-
(7) Ibid, 40 u (I) 8 Vef.9.
( 398 )
Of Interlocutory Matters,
Oncler this general head I fhall confider Affidavits — Petitions-
Motions — References — Reports — Further Direclions — Sales be-
fore the Majter — Certificates — Appointment of a Receiver — IJfue
at Law — Orders — Paying and receiving Money in Court —
Deeds, and Writings — JVrits of Ne Exeat Regno — In junction — .
Certiorari — Procedendo — De Homine Replegiando — and Sup-
plicavit — which being feparately handled in this place, will
render the reft of the work more diftinct and eafy. And
firft I fhall treat of Affidavits.
CHAPTER THE SIXTY-SECOND.
Affidavits,
A 1
N affidavit, generally fpeaking, is a a depofition in writing,
fworn before fome perfons whohath authority to adminifter
fuchoath.
And affidavits are ufually for certifying the fervice of pro-
cefs, or other matters touching the proceedings in a caufe ;
and generally where any motion or petition is made, that js
not of courfe, an affidavit of the facls alledged is necefTary.
The true place of refidence, and alfo the title of every per-
fon who makes an affidavit ought to be inferted therein ; and
it ought to fet forth the matter of fact only, which the party
intends to prove thereby, and not any of the merits of the
caufe.
And to all affidavits fworn in this court, the deponent muft
fign his name or mark on the left hand fide of the affidavit, and
the jurat on the right fide.
[Where a whole petition was recited in an affidavit of fervice,
the cofts were ordered out of the attorney's pocket ().]
In an affidavit of notice, it is not enough to f?y, that notice
was given, or the copy delivered to the party's clerk in court,
but his name muft alio be mentioned, that 'it may appear with
certainty; and -it mud fay, « notice in writing," or words to
that effect. And if he who ferves the notice, does not know-
that the pcrfon on whom it is ferved is the party's clerk in court,
he mult fay, " as he is credibly informed, and verily believes,"
firft taking care, that he receives information accordingly. But
if a notice be left at the clerk in court's feat with his clerk or
agent, fuch clerk or agent need not he named.
[Query, Whether the affidavit of notice muft ftate poG-
tively that the perfon acts as clerk in court, or whether upon
information or belief, is fufficient (z).]
[In all cafes of commitment for difobedience of an order,
there muft be an affidavit of fervice of the order/ which has
been difobeyed (£).]
An affidavit of feveral perfons by the manner of wording it
may be made either joint and feveral, or joint or feveral; and
great care and exactnefs fhould be obferved in drawing affida-
vits. They ought to be fairly wrote in one hand, without
blots or interlineations of any words of fubftance ; otherwife
the Matter may refufe to accept them ; or if he does, the Re-
gifter of affidavits or his deputy may refufe to file them 5 and no
ufe fhall be made thereof in this court (/) .
But where fmall blots or interlineations happen, the Matter
and Regilter ufually mark them in the margin.
(e) Hind. 4^1. (i) 1 Vef. J. 141.
( f) . Atk. 60. (i) 3 Atk. 619.
(») Wy. Fraa. Reg. 8. (/) Vide Ord. Chan. 15, I?,
(k) i JPx. Aim. 30. and 92.
2* Either
4 ao AFFIDAVITS.
Either the plaintiff or defendant may make an affidavit,
which mull be iworn either before a Matter in Chancery (at
the publick office between the hours of ten and two, and fix
and eight, or at chambers, or at a Mafter's houfe), or before a
Mailer Extraordinary in the country ; but the latter are not to
take any affidavits in London or within twenty miles of it j
and every Matter Extraordinary* at the bottom of every affida-
vit, is to exprefs the name of the town and county where he
takes it, or it fhall not be held authentic or filed (m). Nor fhalT
any affidavit be read in evidence at the hearing of a caufe,
though it mail be ufed upon motions ; for an affidavit is not to
be taken or admitted tending to the proof or difproof of the
title or matter in queftion, or touching the merits of the
caufe, nor fhall any fuch matter be craftily or colourably in-
ferted in any affidavit of the fervice of procefs, &c.^
[Affidavits taken before a perfon, who was a folicitor in the
caufe, cannot be read ().]
And all affidavits before they are read in court, or made
ufe of to ground any orders, writs, procefs, or proceedings,
fhall be filed in the affidavit office, and attefted by a true copy
thereof under the hand of the Regifter or Mailer of the affi-
davit office, or his deputy, and till then the Regifters and their
clerks or deputies fhall not make, pafs, or enter any orders for
attachments, commiffions, or proceedings grounded on the
fame ; but all affidavits belonging to the StippUcavit Office and
the Petty Bag Office, and alfo thoie touching lunaticks and bank-
rupts, are not filed in the Affidavit Office, but in the feveral
offices where fuch particular matters are tranfacted (q).
It is fufficient to file an affidavit any time before or the day
an attachment is made out, but not afterwards.
(m) Wy Praa. Reg. 9. (j>) 8 Vef. 46.
hi) Ord. Chan. 14?, (q) Vide Ord. Chan. 23d Jan.
(e>) 3 Atk. 83, 1629. and 15th Nov. 1660.
w [Aprac-
AFFIDAVITS [the Forms of]. 40*
[k pra&ice had obtained of iffuing attachments without an
affidavit previoufly filed in the Affidavit Office ; Lord Eldon
ordered fuch practice to be corrected in future (r.)]
Where the court direcls that affidavits (hall be filed on both
fides within a certain limited time, and fo.me of the affidavits
on one fide happen not to be filed on that day, it is the eftab-
lifhed rule of the court riot to enlarge the order farther, that
the other fide may be required to give an anfwer to thofe affi-
davits; for the neglecting party is concluded (/).
[An affidavit may be^ referred for fcandal or for imperti-
nence (7.)]
(The affidavit of plaintiff's owri follcitor was referred to a
Mailer for impertinence 0w)-~]
[On contradictory affidavits of the fame perfon, perfonal
examination is required in court (.v) ]
[A peerefs was ordered to produce deeds confeffed in her
anfwer on honour only, being in fupplernent of her anfwer
and not upon oath , y et a s to all affidavits, or where a peer is
examined as a witriefs, he muft be upon oath (j.).]
[Affirmation is not fufficient to fupport a motion for a fup-
plicavit, which being in the nature of a criminal profecution is
not grantable but upon oath of the perfon applying for it.]
Ail affidavits (except thofe of paupers) muft be written on
blank ftamps, and io mult a pauper's, before he be admitted;
after he is admitted all affidavits marie on his behalf are
without fiam]
Affidavit thai the plaintiff hath not the deeds inquired after, to annex
to the bill before it is filed.
Betwe'en f A- B, plaintiff,
Between "[ G D defendant;
A. B. the plaintiff in this caufe' rriaketh oath,- that he thio
deponent hath not, nor to the beft of his knowledge, remem-
brance or belief, ever Iv.ul, all or any of the deeds, 'evidences,
and writings, relating to the eftate in queftiort in this caufe,
and which are mentioned in this deponent's bill exhibited in
this honourable court againfl the laid defendant 5 nor doth this
deponent know where the faid deeds, evidences, and writings,
or any of them now arc, unlefs they be in the cufto'dy or power
of the faid defendant.
A. B. Sworn, Sec.
(r) 8 Vef. 357. (a) 2 Vet. 26.
(s) Barnard. 402. (^ p re . Qha, C2. 1 P. W.
name an attorney. But if the plain-
tiff's clerk in cou rf li before the decree, the defendant need
not 1 fv< th ' plaintiff with a fubpoena, becaufe it is the plain-
tili l1.it mi 11 ' ep the cnufe moving; and the defendant can
only give him .k t\_, to ditmif&j if he does not proceed in three
terms : And he is to ferve this notice jpcrfonally upon the
plaintiff, which will oblige him to have recourfe to a clerk in
court- But after a decree, if there be an account before a
Mafter, &c. and the plaintiff's clerk dies, then the defendant
may ferve him with af/bpana to name an attorney.
.Affidavit that a plaintiff cannot be found.
•n f C. D. plaintiff, and
Between I £> R 5 efendant .
A. B. of, &c. folicitor for the defendant, in this caufe,
maketh oath, that he this deponent hath lately ufed his utmoft
endeavours to find out the faid complainant, but after the moft
diligent inquiry this depo.ent cannot hear where he is, though
this deponent enquired after him the faid complainant at, &c.
where this deponent was informed he lived and refided :
And this deponent further faith, that he hath applied to
Mr. the faid complainant's clerk in court, and to
Mr. , the faid complainant's folicitor in this caufe, to
be informed by them where the faid complainant lived or might
be found ; but they both refufed to give this deponent any in-
formation therein.
A. B. Sworn, &c.
Affidavit that the defendant cannot anfiuer without fight of goods in
the country.
-n (A. B. plaintiff, and
Between | c . D . $ efendant ,
C. D. the defendant in this caufe, maketh oath, that this
deponent cannot put in a full ami perfect anfwer to the com-
plainant's bill, without the fight of feveral goods and things
mentioned in the plaintiff's faid bill ; And this deponent fur-
ther
AFFIDAVITS [the Forms of]. 407
ther faith, that the faid faid goods and things are now at
in the county of above miles diftant from the place
of this deponent's now refidc.cc.
C. D. Sworn, &c.
Note ; If the bill be for a difcovery of deeds and writings,
then the affidavit muft be thus; viz. thai the defendant car.not
put in a full and perfeB anfwer, bcc. ivithout the fight and perufal t
Sec (mentioning the deeds, &c.) and nvhlch deeds, &c. areat, tsV.
Jiff davit that a defendant isfick and unable to anficer.
t, ( E. F. plaintiff, and
Between | c D defendant.
A. B. of, Sec. maketh oath, that this deponent hath at-
tended C. D. the defendant in this caufe, for a week paft, as
his phyfician, and faith, that during 'he aforefaid time the faid
C. D. hath been, and now is, fo ill and difordered in his
fenfes, by means of a violent fever, which lie now labours
under, that he is confined to his bed : And this deponent verily
believes that the faid C. D. is, by reafon of fuch indifpofition,
at this time utterly incapable of anfwering the plaintiffs bill.
Aff davit that a defendant is unable to attend to put in his anficer.
t, if A, B. plaintiff, and
Between { c . D . 5 efendant<
E. F. of, See. maketh oath, that the faid defendant is fo
much afflicted with rheumatick pains, that he is confined to
his bed, and is unable to attend to put in his anfwer to the
faid complainant's bill in this caufe.
E. F. Sworn, &c.
Affidavit of a tui/nefs being old and infirm, upon a petition to exa-
mine him de bene effe befoie ijfue joined.
„ f A. B. plaintiff, and
Betwcen | CD. the defendant.
A. B. the plaintiff in this caufe, maketh oath, that G. H. of,
&x. gentleman, a very material witnefs on his behalf in this
caufe, and without whofe evidence this deponent (as he is
advifed, and verily believes) cannot fafely proceed to a hearing
in his faid caufe, and is now in the feventieth year of his age,
as he the faid G. H. informed this deponent ; and this de-
ponent further faith, that the laid G, H. appears to be very
D d 4 weak
4o3 AFFIDAVITS [the Forms of].
yeak and infirm, and in a declining way, and in all probabi-
lity not likely to live long.
A. B. Sworn, Sec.
Affidavit of afervice of a fubpeena to tefiiff.
it
A. B. plaintiff
ween % f - »- v
|^L. D. defendant,
G. H. of, ?"c gentlen an, maketh oath, that he this de-
ponent did on the clay of perfotially ferve Mr. J. K.
with a fubpmna iffuing but of and under feal of this honoura-
ble court, by delivering unto the laid Mr. J K. the body o£
the faid fubpeena under feal as aforefaid 5 and this deponent did
at the fame time give to the faid Mr. J. K. one {lulling, by
•which faid fubpeena the faid Mr. J. K. was immediately to ap-
pear in this court to teflify for the plaintiff in this caufe, as
appeared to this deponent by the label of the {"ix^ fubpeena.
G. H. Sworn, &(*.
jin affidavit of a defendant, his cler\ih court and folicitovy in order
to enlarge publication, the co;ntni//ien being returned.
Between <
A. B. plaintiff",
C. D. defendant.
THE defendant C. D. of in the county of ' , and
E F. the defendant's folic itor in this caufe, and G. H. the
faid defendant's clerk in court in this caufe, feverally make
oath and fay; and jfirft, the faid defendant' C. D. maketh
oath, that the depofitions taken in this caufe, by virtue of a
commifhon iffued for that purpefe cut of and under feal of
this honourable court, have not been feen, read, or heard read
by this deponent, nor hath this deponent been informed or ac-
quainted with the purport or contents of the faid depofitions
fo taken, nor will this deponent, until publication {hall be fur«?
ther enlarged, and pafs by the order of this honourable court,
in cafe fuch order can be obtained ; and the faid defendant
further faith, that he hath feveral material witneffes to exa-
mine, as he is informed, and believes (to wit )• And the
faid E. F. and G. H. for themfelves feverally make oath,
that the faid depofitions are returned, and now remain in the
cuftody of this deponent G. H. the faid defendant's clerk in
court, unopened and unpubliihcd as thefe deponents feverally
believe ; and further fay, that they, nor either of them, have
not feen, read, or l.eard read, the faid depofitions, nor been
informed of the contents thereof, nor will they thefe depo-
pejitt
AFFIDAVITS [the Forms of]. 409
nents, or either of them, be informed of the contents thereof,
until publication (hall be further enlarged, and pafs by the
further order of this honourable court, in cafe fuch order can
be obtained.
CD. All f ■worn the day of
E. F. 1 767, at the tublic office
G. H. before
■ r
Affidavit of a clerk in court, In order to enlarge puhlicationy tl$
commifiton being returned.
■n . f C. D. complainant,
Between [ Ef defendant.
A. B. one of the fworn clerks of the Six Clerks Office, the
foid -'s clerk in court, maketh oath, that the depofitions
taken in this caufe, by virtue of a commiffion iflued for
that purpofe out of and under feal of th-.s honourable ccurr,
are returned unto him this deponent, and the fame remain ui>
opened and unpublished ; and this deponent faith, that he
hath not ieen nor read, nor is he acquainted with the purport
or contents of the depofitions fo taken, nor will this deponent
be informed thereof until publication (hall pafs by the further
order of this honourable ccurt, in cafe fuch order can be ob-
tained.
Note; The plaintiff or defendant, and his folicitor, muft
make the like affidavit with the clerk in court, where publica-
tion is actually patied and witnefies examined, before any order
can be obtained to enlarge publication.
An Affidavit cj afzlicifor, in order to enlarge publication, the com-
inifiion being returrud.
TUt„,„=„ J" £• D- complainant,
-betueen < ^ T , , - r , ■
\Z. I. defendant.
A. B. of, &c. maketh oath, that he hath not feen, heard
read, or been informed of the purport or contents of any of the
depofitions taken in this caufe, nor will he this deponent fee,
hear read, or be informed of the purport or contents of the
faid depofitions, until the further order of this honourable
court, in cafe fuch order can be obtained for the faid defendant
to examine any witneffes.
Note ; This affidavit is ufed where the clerk in court has
made an affidavit as before •, but then the plaintiff or defend-
ant, at whofe requeft publication is enlarged, mult make the
like
3
4io AFFIDAVITS [the Forms of].
like affidavit •, and if all three are in or near London, they ufu-
ally join in one affidayit.
'Note; Ar. affidavit oi tervice of afubpeena to hear judgment,
may be in the fame form as where a fubpxna to appear ; for
which fee Fol.
Affidavit f ferving a notice of motion.
~ ( A B. complainant,
Between -w^i\ a c \ .
^C D. defendant.
G. H. of, &:c. maketh oath, that lie this deponent did on
the day of ftrve Mr E. who a£ts as clerk in court
for the defendant in this caufe [a. this deponent is informed and
believes]* with a' notice in writing in this caufe, purporting
that the plaintiff intended to move the court, &c. [here recite
the notice'] by delivering a copy of the faid notice to the faid
Mr. E's clerk or agent at his feat in the Six Clerks Office.
G. H. Sworn, 8cc.
Affidavit of a mortgagee's attending to receive his money purfuant
to the iVlq/Ie/'s report.
f A. B. plaintiff,
Between < n t> *, r i .
|^L. ±J. defendant.
A. B. the plaintiff in this caufe, maketh oath, and faith,
that he this deponent, in purfuance of the report of S. Y. Efq.
one of the Midlers of this honourable court, bearing date the
day of did on the day of personally attend and wait at
the Chapel of the Rolls in Chancery Lane from before the hour
of ten of the clock until and after the hour of twelve of the
clock (the time and place mentioned in the report) in the fore-
noon of the faid day of in order to receive from
the defendant in this caufe the fum of S44^- 7 J « by the faid
report, reposed due and directed to be paid to this deponent
for principal, interetl, and coils f or the mortgage in queltion in
this caufe, when and where the faid defendant {if more than
cne> " the faid defendants, any or either of them") or any
other peribn or perfons on his, their (any or either of their)
account or accounts, did not, to this deponent's knowledge
or belief* attend or pay to this deponent the faid fum of
514/. 7 s. or any part thereof ; ^ut this deponent faith, that
the faid fum ftill remains due and unfatisfied.
A. B. Sworn, Sec.
* Querej Whether this is fufficiently certain, 1 Vez. 9. 141.
Affidavit
AFFIDAVITS [the Forms of]. 411
Affidavit of ferving a petition.
J A fE. F. plaintiff.
Between -f ,-, ^ r , ,- , ,
\C D. defendant.
A. B. of, &c. maketh oath, that he this deponent did on
the day of inftant [if upon the party kimfelf then you
fay,] " perfonally ferve the (party) with a true copy, &c.'»
leave at the feat of Mr. of the Six Clerks Office, with
his '.gent there, a true copy of a petjtion in this caufe in
writing, preferred t© the right honourable the Matter of the
Rolls, on the tumble petition of the faid defendant, with his
Honour's anfwer or order thereon, bearing date the in-
fiant, whereby it was ordered that the parties concerned fhould
attend his Honour on the matter of the faid petition the then
next day of petitions, of which notice was forthwith to be
given ; which faid Mr. a£ts as clerk in court for the
plaintiff in this caufe, as this deponent- is credibly informed,
and verily believes ; and th'S deponent further faith, that at
the time he fo ferved 'the faid copy, he fliewed the faid ori-
ginal petition to the faid agent.
A. B. Sworn, See.
Affidavit cf ferving an order on a clerk in court*
Between S A ' B> com P lj " nant >
Between | c D defendant .
G. H. of, &c. maketh oath, that he this deponent did on
the day of perfonally ferve Mr. with a true copy
of an order made in this caufe, bearing date, &c. whereby it
was ordered, that, &c. [here ft forth the ordering part] or to
that effect ; and this deponent did at the fame time fhew
unto the faid Mr. the original order duly paffed and en-
tered ; which faid Mr. is clerk in court for in
this caufe, as this deponent is informed and believes.
G. H. Sworn, &c.
Affidavit cf ferving an order to confirm the Mafier's report^ un-
lefs caufe.
„ f~A. B. plaintiff,
Between { p n , r f , '
^_C D. defendant.
G. H. of, fkc, maketh oath, that he this deponent did on
the day of perfonally ferve the defendant C. D. with
an order made in this caufe, bearing date the day of
whereby
4^2 AFFIDAVITS [the Forms of].
v/hereby it was ordered that the report made in this caufe by
JVlr. B. one of the Matters of this court, dated the day
of , and all the matters and things therein contained,
fhould ftand ratified and confirmed by the order, authority,
and decree of this honourable court, to be obferved and per-
formed by all parties thereto, according to the tenor and
true meaning thereof, unlefs the dtfsndant, having notice
thereof, fhould within eight days after fuch notice {hew, unto
this court, good caufe to the contrary, and at the fame time
Shewing the faid C. D. the faid original order duly paiTed and
entered.
G. H. Sworn, &c.
[Affidavit of fervice of an order nifi to make fame ab flute.
In Chancerv Between I A * B * and J" K ' P Iaintlffs -
In Uiancery. between ^ Q D ^ L R defendants#
B. p. clerk to Mr, H. K. folicitor for the defendant C D.
in this caufe, maketh oath, that he this deponent did [the time
nvheti] perfonally ferve Mr. F. D. with an order of this honour-
able court made in this caufe [time ivhen fame ivas made] t
whereby it is ordered, that a report made in this caufe by
Mr. Leeds, one of the Matters of this court, bearing date the
ift day of May laft, whereby Mr, J. J. on the behalf of the
faid C. D. is reported the bed purchafer of the premifes
therein mentioned, at the fum of 2,000 /. and all the matters
and things therein contained, do ftand ratified and confirmed
by the order, authority ; and decree of this court, to be ob-
ferved and performed by all parties thereto according to the
tenor and tvue meaning thereof, unlefs the parties concerned^
who are many in number, and live remote from each other,
their refpective clerks in court having notice thereof, fhould
within eight days after fuch notice fhew unto this court good
caufe to the contrary, by delivering to the faid Mr. F. D. a
true copy of the faid order, and at the fame time fhewing
him the faid order palled and entered ; and this deponent fur-
ther faith, that he did afterwards, on the fame day, perfonally
ferve Mr. G. with the faid order, by delivering to the faid
Mr. G. a true copy of the faid order, and at the fame time
{hewing him the faid order ; and this deponent further faith,
that he did afterwards, on the fame day, perfonally ferve
Mr. H. with the faid order, by delivering to the faid Mr. H,
a true copy of the faid order, and at the fame time fhewing
him the faid order, which faid Mr. D. Mr. G. and Mr. KT,
are all the clerks in court for the plaintiffs and defendants
in
AFFIDAVITS [the Forms of]. 413
in tins caufe, as this deponent is informed and believes; and
this deponent further faith, that he did, on the fame day,
perfonally ferve Mr. N\ who by a former report had been re-
ported the bed purchafer of the faid premifes, with the faid
order, by delivering to the faid Mr. N. a true copy thereof,
and at the fame time mewing him the faid original order
palled and entered.
A. D. Sworn, Sec]
Affidavit ofjerving an order on two clerks in court.
t, . fC. D. complainant,
between < ^ ^ , c 1
IE. F. defendant.
A. B. of, &c. maketh oath, that he this deponent did,
en the clay of laft, leave at the feat of Mr. of
the Six Clerks Oilice, with his agent there, a true copy of
an order in writing in this caufe, duly palled and entered,
bearing date the day of the faid , whereby it was
ordered, that, &c. and this deponent further faith, that he
did on the fame day alfo leave at Mr. *% feat, with his
clerk or agent there, another copy of the faid order in writ-
ing, purporting as aforefaid -, which faid Mr. is clerk
in court for the, Sec. and the faid Air. for the ,
as this deponent is credibly informed and verily believes ; and
this deponent at the fame time fhewed each of the faid refpec-
tive agents, he fo ferved as aforefaid^ the faid original order.
Affidavit of fcrving an injunction.
Between {£•£' complainant,
\C. D. defendant.
G. H. of, Sec. maketh oath, that he this deponent did on
the day of perfonally ferve the defendant in this caufe
with a true copy of an injunBion in this caufe iiTued out and
under the fsal of this honourable court, bearing iejle the
day of initant [or now laft pall] and this deponent did at
the fame time fhew unto the faid defendant the original writ
of injunction under feal of this honourable court, whereby the
faid defendant was injoined, Sec. [here fet forth the injoining
part of the injunction, concluding with thefe words, or to that
tffedt] J
G. H. Sworn, &c.
Affidavit
4 i4 AFFIDAVITS [the Forms of].
Affidavit, where the defendants live in different counties, to obtain
an order, that fer vice of an order to con Irm a Mafter's report
nifi, on the clerk in court, may be good jirvlce.
p / A. B. — — plaintiff,
Between | c Q ^ £ F> G Hj defendants.
J. K. of, 8cc. maketh oath, that the faid feveral defend-
ants live, cr refide, at a great diftance from each other in fe-
veral counties of England, to wit, the faid C. D. at L. in
the county of D. the faid E. F. at T. in the county of Y.
arid the faid G. II. at S. in the county of R. as this depo-
nent is informed and verily believes.
Affidavit of producing all deeds and •writings before a Mafler.
-, f A.B. plaintiff,
Bctween tCD. defendant.
C. D. the defendant in this caufe, maketh oath, that he
this deponent, or any other perfon or perfons for his ufe, to
his knowledge or belief, or with his privity or confent, have
not, nor hath, nor ever had in his or their cuftody or power,
any deeds, books of account, papers or writings whatfoever
relating to the matters in queftion in this caufe, other than and
except" the feveral deeds, books of account, papers and writ-
ings mentioned and contained in the fchedule hereunto an-
nexed.
Affidavit of ferving a writ of execution of a decree, upon a clerk
in court.
-, ("CD. complainant,
Between | £< p dcfendant ;
A. B. of, &c. maketh oath, that he this deponent did
on the day of this inftant deliver unto Mr.
the defendant's clerk in court, a true copy of a writ of execu-
tion of a decree, bearing tejle at Weftminfter the day of
and at the fame time (hewed him the faid writ of execution
under feal of this honourable court, whereby the defendant
was injoined or directed to, £cc.
A, B. Sworn, &c.
' Affidavit of ferving a writ of execution of a decree, &c. upon
the parties.
^ f A. B. complainant,
Between | CD _ defendant .
E. F. of, &c. maketh oath, that upon, &c. laft, he this
deponent did perfonally ferve the defendant with a writ of
execution
AFFIDAVITS [the Forms of]. 4*5
execution of a decree made in this caufe, bearing tejle the
day of laft paft, by (hewing the faid writ under feal of
the faid court unto the faid defendant, at his houfe in, &c.
and at the fame time delivering unto him a true copy thereof ;
by which decree and writ the defendant was injomed to pay,
&c. in the faid decree and writ mentioned ; and at the fame
time this deponent {hewed unto the faid defendant a letter of
attorney executed by the complainant under his hand and feal,
impoweVmg this deponent to afk and receive of the faid de-
fendant the faid fum of, 8cc. a copy of which faid letter of at-
torned this deponent then alfo left with the faid defendant, of
whom he did then demand the laid fum of, kc. but the de-
fendant did not then pay the fume, or any part thereof, to
this deponent ; nor hath he yet paid the fame to this deponent,
or to the plaintiff, or to any other for his ufe, to this depo-
nent's knowledge or belief.
E, F. S *orn, Sec.
Affidavit of having dif covered new matter for a bill of review.
_ (A. B. plaintiff,
Between •{ r* r\ 1 r 1 ..
t C. D. defendant.
C. D. the defendant, maketh oath, that fince the time of
pronouncing the decree in this caufe, he, this deponent, hath
difcovered new matter of confequencc in the faid caufe, par-
ticularly that the plaintiff on, &c. did, Sec. which this depo-
nent could not poihbly know fo as to make ufe thereof in his
defence, at the time of pronouncing the faid decree.
C. D. Sworn, &c.
[Affidavit to ground an application for a commijfon to examine wit-
nejfes abroad.
T ™ t, _ fA. B. plaintiff, and
In Chancery. Between j Q D SefendW.
A. B. of, 8ic. Efquire, the plaintiff above named, maketh
oath and faith, that this caufe is now at iffue, and this depo-
nent is defirous of proceeding therein ; and this deponent fur-
ther faith, that he hath feveral material witnefles to examine,
who now live and refide in Charleftown in South Carolina,
in North America, as this deponent hath been informed and
verily believes ; and particularly John Edwards and Jai ss
Stiles who are fubferibing witneffss to certain indentures of
leafe and releafe in the pleadings in this cauf- mentioned ; and
this deponent faith he is advifed he cannot fafely proceed to a
hearing in this caufe without the teftimony offueh witneffes.
A. B. Sworn, &c.
4 Affidavit
4*6 AFFIDAVITS [the Forms of].
{Affidavit in fupport of a charge left at a Mafter'i office.
TWwpen f A * B> defendant, an d
iJetAeen^ CD phiflti£
A. F. of, &c. widow and executrix of J. F. late of
tteceakd, maketh oath and faith, that K. W. late of
Efouire, deceafed, in the pleadings of this caufe named, was
in his life- time, and at the 'time of his death, juftly and truly
indebted unto this deponent's faid late hufband on bond bear-
ing date the day of J 752, in the penal lum of
Bool, conditioned for payment of the fum of 400 L cf lawful
money, with intereft for the fame at the rate of five pounds per
eentum per aw/r^w, which bond is now in the cuflody of thisdepo-
nent, and to which, for greater certainty as to the dates and
contents thereof, this deponent refers •, and this deponent doth
admit that the intereft which hath accrued or become due upon
the faid bond, hath been paid, remitted, or otherwife fatished
unto this deponent up to the day cf laft ; and which
was fo paid as this deponent hath been informed and believes
by the order or the direction, or on the account of the corn-
plainant A. B executrix of the faid R. W. deceafed; but this
deponent faith, that the whole of the faid principal money or
fum of 400/. together with the intereft thereof from the faid
day of laft.) ft ill remains due and owing from the
eftate of the faid K. W. unto this deponent, as executrix of
her faid late hufband deceafed.
A. F. Sworn j Sec.]
[Affidavit in fupport of a charge left at a Mafer's office.
t •>! v , . (A. B. plaintiff, and
In Chancery. between ■{ ~, -^ \, r , '
; (_C. D. defendant.
C. D. of, Sec. the defendant above named maketh oath and
fa'ith, that A. B. the complainant above named, is and now
Hands juftly and truly indebted to this deponent in the fum of
385/. together with 20/. 12;. Sd. cofts of fuit, under and
by virtue of a judgment recovered by this deponent againft the
faid complainant in His Majefty's Court of Exchequer at Weft-
ininfter, for the penalty of a bond bearing date the day of
1782, and executed by the faid complainant to this depo-
nent, in the penal fum of "co /. conditioned for payment to
this deponent in the fum of 350/, on the day of 1 783 ;
and this deponent faith, that that the fum of 405 /. 12 s. 8 d.
is now juftly due and owing to this deponent, under and by
virtue of the laid judgment fo obtained as aforefaid, and fos
principal, intereft., and cofts of fuit..
C. D. Sworn, &c]
( 417 )
CHAPTER THE SIXTY-SECOND.
Of Petitions in Genera/.
A PETITION is the requeft of a pr-rfon in writing, directed
-*1Jl to the Chancellor or Matter of the Rolls, (hewing fome
matter or caufe, whereupon the petitioner prays fome direc-
tion or order.
In fome cafes, petitions may be preferred before, as well as
after, a bill filed ; as for a perfon to be admitted in forma pau-
peris.
Brevity and form are the two things chiefly to be obferved in
drawing them. And all petitions, even tnofe to be admitted
in forma pauperis, are to be ingroffed on treble fix-penny (lamps :
But after admiffion without (tamps.
Mod things, which may be moved for of caurfe, may be alfo
petitioned for.
And petitions are upon fo many various and different occa-
fions, that to enumerate them in particular, would be endlefs :
It may be fufficient to obferve in general, that they are either
for matters of courfe, as for a commiiiion to plead, anfwer or
demur, izfe. or for a guardian to be a Signed for an infant
defendant (if in the country) and to take the infant's anfwer
by fuch guardian : Or if the defendant be a lun2tick, or an
ideot, that he may anfwer by his committee (naming him)
appointed by the court. But if the infants live in London, or
within twenty miles thereof, (unlets upon fome extraordinary
occafion), they appear in court with fome fit perfon to be
their guardian ; fir ft writing a note of the plaintiff's and de-
fendant's names, and underneath that the laid infant prays
that fuch a one (naming him) may be appointed his guardian
to anfwer the plaintiff's bill and defend this fair ; which the
court ufually grants, if they fee no caufe of impediment againit
the perfon to be affigned guardian; and an order is drawn up
thereupon by the Regiiter, and entered : and then the anfwer
is fworn by fuch guardian. And petitions are alfo preferred
for feveral other matters ; as to enlarge time for anfwering, or
for fubpeenas to rejoin returnable immediately ; and fpr com-
miffions to examine witnefles in the country ; or for enlarging
Vol. I. E e pub-
4i 8 PETITIONS, [the Forms of.]
publication ; or paying money, tffc. of for remo- ing any hard-
fhips ; as to (lay procefs of contempt, on juft caufe, &c. or
for amending of jtiijlakes, &c.
[A guardian may be appointed and maintenance allowed
upon petition, without fuit. 3 Bro. 500. and the cafes there cited;
but a receiver cannot be appointed, where there is no bill de-
pending, 1 Atk. 489. 2 Atk. 3 15.]
Sometimes they are upon collateral matters, as they have
relation to fome former fuit or caufe depending, cr to an of-
ficer of the court, as to have a clerk or folicitor's bill tax'd, or
to oblige him to deliver up papers, Is'c.
And where a matter comes before the court by petition,
and the court makes an order thereupon without any at-
tendance, and the adverfe party would difcharge fuch order, or
have any thing done touching the matter of fuch petition, he
commonly applies by way of petition alfo ; but oftentimes on
motion the court will do it.
Though no former order made in court, (hall be altered or
even explained upon petition ; yet the execution thereof may
be (laid upon petition, for a fhort time, till the matter can be
moved and debated in court. \a). Nor fliall any commiffion
for examining witnefTes be difcharged, or depolitions or ex-
aminations fuppreffed upon petition, unltfs the matter be
fir ft referred to a Mafter, and a certificate had thereupon.
Nor may an injunction to flay fuits at law be granted, revived,
diiTblved, or ftaid upon petition, nor an injunction of any-
other nature pafs by an order upon petition, without notice,
and a copy of the petition firft given to the other fide ; the
petition to be filed with, or drawn up by, the Regifter, and
the order thereupon entred. (b). And no fequeftration, dif-
miffion, retainer upon difmiffion, or final order is granted
upon petition. Nor (hall the commitment of any perfon
taken upon procefs of contempt be difcharged, but upon hear-
ing the oppofite party, (c).
By King, Lord Chancellor, admitted that a decree, much
more an interlocutory order, if gained by collufion, may be fet
afide on a petition, (d).
[The delivering over the body of a ward, or poflVffion of
truft eftate, cannot be awarded on petition, but bill muft be
brought for the purpofe. (c). j
(a) Ord. Chan. 151. (d) 3P W. m.
(!>) Ord. Chan. 151. (e) 3 C W. 154.
(c) Ord. Chau. 15 1.
After
PETITIONS, [the Forms of.] 4*>
After the petition is drawn and ingroffed, it muft be deli-
vered to the Chancellor's or Mafter of the Rolls's fecretary,
who is to get it anfwered ; and if it be a matter of courfe it is
forthwith granted ; but if it requires examination, or the other
fide to be heard, then it is ufua.ly ordered, that all parties at-
tend the next day oj 'petitions ; at which time the matter is debated,
and fuch order made as the court thinks fit. And in fuch cafe3
affidavits are frequently neceffary, to fhew the court how mat-
ters (land on bo> h fides.
And matte, s of great confequence which require difpatch,
may be petitioned for in the vacation. And as for petitions of
courfe, they are frequently preferred in the vacation, to the
Mafter of the Rolls.
The Lord Chancellor is generally petitioned touching the
fetting down of pleas, demurrers or exceptions to be argued,
and concerning fpecial orders made by himfelf, and for re-
hearings : but in mod other cafes, application is made to the
Mafter of the Rolls, who may alfo be petitioned to re-hear a
caufe heard before himfelf.
Nofubpcena, attachment^ or other procefsof this court, (where
made out by order of court) fhall iffue out upon any petition,
until an order be drawn up and entered thereupon : arxl all pro-
cefs otherwife iiTued fhall be void (f).
And no order made upon any petition (unlefs the fame be by
way of fummons) (hall be effectual to ground jubpcenas> or
other procefs, but where within three days in term-time, or a
week in the vacation, after the order granted, the fame be
drawn up and entered with the Regifter ; to the end no perfon
may be furprifed by any private order (g).
But this rule by modern practice feems now otherwife ; and
fuch order may be drawn up almoft at any time, provided
it be before (uch fubpeena or procefs iflu°s.
Orders upon petitions mult be drawn up, pafTed, entered,
and ferved by delivering a copy to the other party, as other or-
ders are (Jo).
ffl
Ord. Can. 49. (£■) Ord. Can. 217.
Ord. Can. 49.
E e % [Peiititn
4 20 PETITIONS, [the Forms of.]
r Petition for fix Weeks' Time to plead Anfwer or Demurrer^ and for
a Commiffion.
_ _. „ C H. R. plaintiff.
In Chancery Between J g> g< d ^ femIant>
To the Right Honourable the Mailer of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill againft your petitioner
he appeared thereto,' and hath taken a copy thereof. Forafmuch
as your petitioner is not in contempt, lives in and
has had no order for time.
Your petitioner therefore humbly prays your Ho-
nour that he may have fix weeks' time to plead
anfwer or demur to the plaintiffs bill, and
that he may have a commiflion for that purpofe
returnable without delay, and that the plain-
tiff may, in two days after notice hereof, to his
clerk in court give your petitioner's clerk in
court commiflioners' names to fee the fame taken,
or in default thereof that your petitioner may have
fuch commiflion directed to his commiflioners.
And your petitioner will ever pray, &c.}
[Petition for a Month 's further Time to anfwer.
CA.B. plaintiff.
Between J C . D. defendant.
To the Right Honourable the Matter of the Rolls.
The humble petition of the defendant,
Sheweth,
That the pontiff having filed his bill againft your peti-
tioner he appeared thereto, and has taken a copy thereof. For-
asmuch as your petitioner is not in contempt, lives in
and has had but one order for fix weeks' time to anfwer :
Your petitioner therefore humbly prays your Hon-
our that he may have a month's further time
to put* in his anfwer to the plaintiff's bill.
Ard your petitioner will ever pray, &c]
[In a petition for further Time the defendant muft always
mention what time he had before obtained-, otherwife he might
delay thecaufe, and before a fubfequent order for time will be
delivered out from thereafter office, the preceding orders pafied
and entered muft be produced to the Regifter. Hind. 503.)
{Petition
PETITIONS, [the Forms of.] 421
[Petition for a Month' s further Time to plead Anfiver or Demurrer '.
„ f A. B. plaintiff.
Between | C . D. defendant
To the' Right Honourable the Mafter of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff filed his bill in this court to which your
petitioner appeared.
That your petitioner refides in Somerfetfhire, and hath
obtained an order tor a commiffion to take his plea, anfwer,
or demurrer thereto, and fix weeks' time to return the fame,
but he has not been able to prepare his anfwer, and is not in
contempt :
Your petitioner therefore humbly prays your Honour
that he may have a month's further time to put
in his plea, anfwer, or demurrer, to the faid
plaintiff s bill, not demurring alone.
And your petitioner will ever pray, &c]|
\Peiitionfor Three Weeks' further Time.
-. f \. B. plaintiff.
Between { C . D. defendant.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill againft your petitioner,
he appeared thereto and has taken a copy thereof. Foras-
much as your petitioner is not in contempt, lives in
and has had but two orders for time, the lalt of which was
peremptory.
And your petitioner therefore humbly prays your
Honour that he may have three weeks' further
time to put in his anfwer to the plaintiff's bill.
And your petitioner will ever pray, &c 3
[Petition for a Month's Time to anfwer in a Town Caufe.
r> \ A. B. plaintiff.
Between j c D / defendant .
To the Right Honourable the Mafter of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill in this honourable court
againft your petitioner and others, whereto your petitioner
hath appeared and taken office copy thereof. And his time
foraniwering not being yet expired nor being in contempt :
Ee 3 Tout
422 PETITIONS, [the Forms of.]
Your petitioner therefore mod humbly prays your
Honour to grant unto your petitioner a month's
time to plead, anfwer, or demur to the plaintiff's
- bill, not demurring alone.
And your petitioner will ever pray, &c]
[Petition for three Weeks' further Time to anfwer in a Town Caufe.
C A. B. plaintiff.
Between j C . D. defendant.
To the Right Honourable the Mailer of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill againft your petitioner
he appeared thereto, and has taken a copy thereof. Foras-
much as your petitioner is not in contempt, and has had but
one order for a month's time to anfwer :
Your petitioner therefore humbly prays your Honour
that he may have three weeks further time to
put in his plea, anfwer, or demurrer, to the
plaintiff's bill not demurring alone.
And" your petitioner will ever pray, &c]
[Petition for a fortnight's further Time to anfwer in a Town Caufe.
f A. B. plaintiff.
Eetween { C . D. defendant.
To the Pught Honourable the Mafter of the Rolls.
The humble petition of the defendant ?
Sheweth,
That the plaintiff having filed his bill againft your petitioner
he appeared thereto and has taken a copy thereof. Foras-
much as your petitioner is not in contempt, and has had but two
orders for time, the laft of which was peremptory :
Your petitioner therefore humbly prays your Ho-
nour that he may have a fortnight's further
time to put in his plea, anfwer, or demurrer, to
the, plaintiff's bill not demurring alone.
And your petitioner will ever pray, &c]
[Petition for further Time under fpecial Cir cum/lances.
'' f A. B. plaintiff.
Between j C . D. defendant.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the defendant,
Sheweth,
That in trinity vacation laftj the plaintiff filed his bill in
this
PETITIONS, [the Forms of.] 423
this honourable court againft your petitioner, to which your
petitioner appeared.
Tnat on or about the 25th day of January laft, your peti-
tioner obtained an order for a commiflion to take his plea,
aniwer, or demurrer; to the plaintiffs faid bill not demurring
alone and for fix weeks' time to return the lane.
That before the expiration of the time granted by the faid
order, a treaty for a compromife of the matters in queftion in
this caufe was had between your petitioner and the pi lintifr,
but th pi lintiff's folic i tor in town, not being acquainted there-
with caufed an attachment to be fealed againft your petitioner
for want of anfwer. returnable in 15 days after Eaftcr laft
pill.
That your petitioner and the plaintiff not being able as they
intended to fettle by compromife the matters in quefiion in
this caufe, it has been determined to bring the fame to a hear-
ing in thi* honourable court, and your petitioner has accord-
ingly applied to the plaintiff's clerk in court, to clear the coiis
of the contempt incurred by the attachment, in order that
your petitioner might apply to this honourable court for a
month's further time to put in his anfwer, but the plaintiff's
clerk in court refutes to accept fuch coils, although he have
not yet obtained a return from the fheriff to the faid attach-
ment, which he was entitled to do fd long ago as on the 30th
day of April laft.
That your petitioner refides in the county of Hereford,
and does not mean to caufe any unneceflary delay in this caufe.
And your petitioner therefore humbly prays your
Honour that he may have a month's further
time to put in his plea, anfwer, or demurrer,
to the plaintiff's faid bill, not demurring alone.
And your petitioner will ever pray, &c-]
[Petition for further Time te anfwer, after the ufual Orders afire-
fed-
**>' ■ CAB. plaintiff.
Between -> ~, ^ *[ c ,
£tw. D, defendant.
To the Right Honourable the Mafter of the Rolls
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill in this honourable
court againft your petitioner, fhc appeared thereto.
That your petitioner having obtained the three ufual orderr
for time to put in her plea, anfwer, or demurrer, to the faid
424 PETITIONS, [the Forms of.]
bill, and your petitioner for the reafons hereinafter mentioned
not being able to put in her anfwer to the faid bill, by the
day of being the day on which the laft of
the faid orders expired, the plaintiff caufed an attachment to
be fealed againft your petitioner for want thereof.
That by an order made by your Honour, dated the nth
day of April laft, it was ordered that upon your petitioner
encoring her appearance with the Regifter within one week, and
upon paying or tendering to the plaintiff's clerk in court the
colts of the before mentioned attachment, that me mould
have a month's further time to put in her plea, anfwer, or de-
murrer.
That your petitioner's defence to the faid bill hath been a
long time pad before your petitioner's counfel, but the fame
being of confiderable length, and requiring much care in
fe fling, (the bill being for a difcoverv of your petitioner's title
to eftates of very great value,) your petitioner's counfel hath
not yet been able to complete the fame, but h ufing his utmoft
difpatch for that purpofe, and no unneceffary delay is intended,
on the part of your petitioner to the plaintiff.
Your petitioner therefore humbly prays your Honour
that fhe may have further time until the ?ift
day of this inftant May, to put in her plea,
anfwer, or demurrer, to the plaintifPs bill, and
in the mean time all proceedings for want there-
of may be flaid.
And your petitioners, will ever pray, &c."J
[Petition forjtx Weeks' Time to anfwer Amendments and Except
tions in a Country Caufe,
t, x f A. B. plaintiff*.
Between { C . D. defendant.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the defendant,
Sheweth,
That your petitioner's anfwer being reported infuflicient,
the plaintiff obtained an order to amend his bill, and that
your petitioner might anfwer the amendments and exceptions
at the fame time.
That the amended bill is lately filed and very long. For
as much as your petitioner is not in contempt, lives in
{hire, and has had no order for time to anfwer the amendments
and exceptions:
Your
PETITIONS, [the Forms of.] 425
Your petitioner therefore humb'y prays your Honour
that he nr.y have a month's time to put iv his
plea, anfwer, or demurrer to the faid amended
bill and exceptions.
And your petitioner will ever pray, &c.]
\_Pethion toput in an Anfwer without Oath.
t, f A. 8. plaintiff.
Between | C . D. defendant.
To the Right Honourable the Mafter of the Rol!«?,
The humble petition of the defendant,
Sheweth,
That your petitioner is maHe a party to 'he plaintiff's bill
exhibited in this court, merely tor the fate of form.
That the plaintiff is willing that your petitioner s anfwer to
the faid bill fhould be put in without oath, and hath by his
clerk in court fignified his confent thereto.
Your petitioner therefore humblv prays ycur Honour
that he may have leave to put in his anfwer
without oath to the plaintiff's bill.
And your petitioner (hall ever pray, &c]
[Note. To this petition and to all other petitions which
Tequire the clerk in court's confent, he figns in thefe words " I
do confent to the prayer of this petitioner, if your Honour
(hall pleafe to order the fame."]
r Petition to let down a CaUj.. for further Directions on a Majler's
Report.
u -_. n . f A. B. pkrntiff.
In Chancery Between j c D J^-^
To the Right Honourable the Maker of the Rolls.
The humble petition of the defendant,
Sheweth.
That on the hearing of this caufe on the day of 1784,
it was ordered and aecreed {as in the decrtc and after the faid
Mafter fhould have made his report, fuch turtle r order fhould
be made therein as fhould be jult.
That in purfuance thereof, the faid Mafter hath made his
report bearing date the day of iaft paft in relation
thereto.
Your petitioner therefore mod humbly prays your
Lordfliip to appoint a fhort day ior the hearing
of this caufe on the faid Matter's report.
Ana your petitioner fhall ever pray, &c ]
{Petition
42 6 PETITIONS, [the Forms of.]
[Petition tofet down a caufe on the Equity referred on a eafefor the
Opinion 'f the Judges of K. B.
CAB. and C. D. plaintiffs
Between j J. S. M. S.
£and J. F. defendants.
To the Right Honourable the Lord High Chancellor of
Great Britain.
The humble petition of J.S. M. S.
Sheweth,
That by the decree made on the hearing of this caufr, it
was ordered that a cafe fhould be made for the opinion of the
Judges of the court of King's Bench, and that the queftion
i ihouid be, what eftate W. 8. took under the Will of S. his
father, dated the 7th day of May 1731, and it was ordered that
all facis neceffary to bring the maiter into queftion fhould be
flated in the cafe, and it was referred to Matter M. to fettle
the fame, in cafe the parties differed. And it was further
ordered that the Judges of the faid court fhould be attended
with the faid cafe, and the confuleration of cofb and all further
directions were referved until after the Judges of the court of
King's Bench fhould have made their certificate.
That, in purfuance of the faid decree, a cafe was fettled, and
came on to be argued in Hilary Term Iaft, before the Judges
of the court of King's Bench, who have certified that having
heard counfel and confidered the cafe, they were of opinion
that W. S. took under the above will of S. S. an eflate for
life, not merged by the devife to the heirs of his body, but
by that devife an ellate in remainder veiled in the faid W. S.
Your petitioner therefore humbly prays your Lord-
{hips that this caufe may be fet down to be
heard before your Lordfhip on the Equity re-
ferved.
And your petitioner will ever pray, &c]
[Petition for his Honour tojlrihe Names, Plaintiff refufingfo to do,
"■ -,, „ f A. B. plaintiff.
In Chancery Between j Q D 5 efeudant ,
To the Right Honourable the Mafter of the R.olls,
The humble petition of the defendant,
Sheweth,
That your petitioner obtained an order dated 24th of April
inftant, for a commiffion to examine witnefTes returnable with-
out delay, and that the plaintiff's clerk in court fhould in tour
days after fervice thereof, join and ftrike commiffioners' names
' with
PETITIONS, [the Forms of.] 427
with vour petitioner's clerk in court, which order was duly
ferved on the 25th Inftant.
That the plaintiff's clerk in court did on the 29th Inftant
join with your petitionees clerk in court, and named four com-
miffioners, viz. A. B. C. D. E. F G. H. of whom your peti-
tioner has flruck out C. D. E. F. and your petitioner named
I.K. L. M. N. O. P. Q^but the plaintiff's clerk in court now
refufes to flrike your petitioner's names.
Forasmuch as your petitioner has many material witneffLs,
as he is advifed, to examine, and is defirous to fpeed his
caufe.
I.K.
L.M.
N. O,
"iour petitioner therefore humbly prays your Honour
would be pleafed to flrike out fuch two of your
petitioner's commiflioners as to your Honour
(hall feem meet.
And your petitioner (hall ever pray, &c.]
Jn an injunction caufe, if the bill be not filed in four days
after the return of the fubpaena^ and coils are preferred for want
thereof, the plaintiff, upon motion or petition, may obtain an
order for the defendant to accept the bill nunc pro tunc, upon
payment of cofls out of purfe, which is eight (hillings and fix
pence. The petition is as follows :
Between, &c.
To the Right, &c.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having exhibited his bill in this honour-
able court againfl the defendant, thereby praying (among other
things) for an injunction, &c. and having ferved the defend-
ant with procefs to appear, and anfwer the fame, the faid de-
fendant appeared accordingly ; but your petitioner's bill not
being filed at the exacl day, though in a very few days after,
the defendant's clerk in court refufes to accept the fame, and
Infifis upon coils.
Wherefore your petitioner humbly prays your Ho-
nour, that the defendant's clerk in court may be
ordered to accept your petitioner's bill, upon
payment of cods out of purfe.
And your petitioner (hall ever pray, &c.
Petition
4 23 PETITIONS, [the Forms of.]
Petition for a habeas corpus cum caufis at the Injlance of the
Party i taken upon an Attachment > in order that he max be turned
§ver to tbe Fleet Prifon.
- f A.B plaintiff.
Between j c . D . S cfendant .
To the Right Honourable the Mafter of the Rolls,
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill againft your petitioner^
he has app ared thereto and taken a copy.
But your petitioner, n »t having put in his jjnfwer in due
time, an attachment iffued againft him, upon which he has
been arrdted, and now remains in the cultody of the fherifj of
Middlelcx.
Your petitioner therefore humbly prays your Honour
that a writ of habeai corpus cum caufts may iffue
out of this honourable court, directed to the laid
fher if of the pounty of Middlefex, thereby com-
manding him to bring the body of your peti-
tioner into this honourable court on Tuefday
next the I5tn day of July inftant, in order that
your petitioner m^y anfwer his contempt, and
be discharged therefrom, or may otherwife be
dealt with according to law.
And your petitioner (hall ever pray, &c.
Ordered that a writ of habeas corpus cum caajis
do iffue directed to the (henfF of Midult lex,
thereby commanding him to bring the body
of the petitioner into this court on Tueiaay
next the 15th day of July inftant, in order
that he may anfwer his centempt and be dif-
charged therefrom, and otherwife de dealt with
according to law.
Petition tofet down a Caufefor hearing en the Equity referved.
To the Right Honourable, &c.
A. B quer.
CD def.
The humble petition of the plaintiff.
Sheweth,
That at the hearing of this caufe before your Lordfhip, on,
&c. laft, your Lordfhip was pleafed to order an iffue at law
to be tried, whether, &c That the iflue hath fmce been
tried at law, according to the directions of the faid order ; and
the
PETITIONS, [the Forms of.] 429
the defendant in this caufe, who was plaintiff in the faid ac-
tion, became nonfuit upon full evidence.
Your petitioner humbly pray* your Lordfliip to ap-
point a fliort day tor (erring down this caufe on
the equity referved, ami that your petitioner may
have leave to move for his cofts at Law, and of
his fuit at the faid hearing.
And your petitioner fliall ever pray, &c-
Jan. 1767. Let the caufe be fet down to be
heard on, &c. whereof forthwith give notice.
C. Cane.
Petition to enlarge Time for Payment of Money.
Sheweth,
That on the laft your Honour was pleafed to order
your petitioners to bring into this court the fum of with-
in a fortnight then next, and thereupon the injunction to be
continued to the hearing. That the matter arifing in ,
your petitioners have not been able to get the fame monev
returned, but the defendant having three feveral judgments for
each againft your petitioners on bail-bonds, they have
very good fecurity, and your petitioners (hall fpeedily get the
money returned, and paid into court.
Your petitioners therefore humbly pray your Honour
to enlarge the time for bringing the faid mo-
ney into court till the inftant, and toitay
all proceedings in the mean time.
And your petitioners fliall ever pray, &c»
Be it fo, unlefs caufe be ihewn before me upon
Tuefday next, at three in the afternoon, of
which give notice forthwith.
Petition to appoint a Day for an abfeonding Defendant to appear.
To the Right, &c.
Sheweth,
That your petitioners feme time fince exhibited their bill In
this court againlt. the defendant A. B. and others, and in the
month of laft took out procefs oljubpecva under feal of
this court againft him the (aid defendant, to compel him to ap-
pear to, and anfwer the faid bill, and the utmoft endeavours
have been ufed to ferve him with the faid procefs, and the moft
Uriel inquiry hath been made after him at his laft known ufual
place of abode, and at feveral other places, but cannot yet find
him to ferve him ; and there is reafon, and juft ground to be-
lieve that he ablconds for debt, and to avoid being ferved with
the
430 PETITIONS, [the Forms of.]
the procefs of this honourable court, and of other courts, as
by affidavit annexed appears •, and in regard the faid defendant
has not appeared to your petitioners' faid bill.
Your petitioners therefore humbly pray your Honour
to appoint a fhort day for the faid A. B. to ap-
pear to your petitioners' faid bill, purfuant to the
a£l of parliament made in the fifth year of His
prefent M^efty's reign.
And your petitioners fhall ever pray, Sec
Petition to withdraw a Plea.
To the Right Honourable the Mafter of the Rolls,
A. B. quer.
C. D. def.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill in this honourable
court againll your petitioner, and your petitioner having put
in his plea, and demurrer thereto, your petitioner is fince ad-
vikd to make other defence to the faid bill.
Your petitioner therefore prays your Honour that he
may withdraw his faid plea and demurrer,, upon
paying the plaintiff or his clerk 20s. cofts.
And your petitioner (hall pray, &c.
Petition for a Commijjion after a Serjeant at Arms.
Sheweth,
That your petitioner appeared to the plaintiff's bill the
inftant, which appears to have been filed the day
of laft, and your petitioner finds he is in contempt to a
Serjeant at arms, upon a non eji inventus returned upon a corn-
million of rebellion of not appearing thereto in time.
That your petitioner is defirous forthwith to difcharge his
faid contempt, by paying the plaintiffs their cofts in refpetfc
thereof, and alfo of putting in his anfwer to the plaintiff's bill
as foon as may be ; in regard your petitioner lives in the county
of , and muft anfwer by commiflion:
Your petitioner therefore humbly prays your Honour,
that the plaintiff's clerk in court may forthwith
deliver to your petitioner's clerk in court a bill
of cofts, in refpetT of your petitioner's con-
tempt, and that it may be referred to one of the
Malters of this court, to tax the faid bill, in
cafe the faid clerks in court differ in fettling the
fame \ and that upon your petitioner's payment
of
PETITIONS, [the Forms of.] 431 -
of the Paid cofts fo fettled or taxed, all farther
proceedings upon the faid contempt may be
{laid in the mean time, and that your peti-
tioner may be at liberty to fue out a commillion
to plead, anfwer, or demur, and have a month's
time to return the fame.
And your petitioner (hall ever pray, £cc.
When the plaintiffand defendant join in commiflion, and the
clerks in court or folicitors differ about ftriking commifiioners'
names, the way is to apply by petition to the Matter of the
Rolls to (Irike the names.
In caufes where the Crown is interefted, it is necrffary to
make the Attorney Genera) a party, and none of the king's
counfel can be retained to plead a train ft the Crown, without
firft obtaining an order from His Majefty for that purpofe,
which is done by petition in the following manner:
To the King's molt Excellent Majefty.
The humble petition of A. B. and others,
Sheweth,
That your petitioners are plaintiffs in a caufe in Chancery,
wherein your Majefty's Attorney General 'and others are de-
fendants. That your petitioners have all along advifed with
your Majefty's Solicitor General, and T. C. Efq. ; two of your
Majefty's counfel learned in the law ; but forafmuch as they
cannot plead in the faid caufe without your Majefty's royal li-
cence to the faid Mr. Solicitor General and T. C. Efq. to be of
counfel for them in the faid caufe.
Your petitioners therefore humbly pray your Ma-
jefty will be moft gracioufly pleafed to grant
your royal licence for the faid Mr. Solicitor Ge-
neral and the faid T. C. Efq. to be of counfel
for your petitioners in the faid caufe, as often as
there fhail be occafion.
And your petitioners (hall ever pray, &c.
This petition is written upon unftamped paper, and carried
to the Secretary's office.
Here follows the order upon the above petition:
"Whereas A. B. &c. have by their petition humbly repre-
fented unto u;, that they are plaintiffs in a caufe in Chancery,
wherein our Attorney General and others are defendants, and
that they all aiong have advifed with our truity and wc-ll-be-
loved Solicitor Genera!, and T. C. Efq., two of our counfel
learned in the law. But forafmuch as they cannot plead for
the petitioners in the faid caufe without our royal licence, d:f-
penling therewith j they have therefore moft humbly prayed us
3 to
432 PETITIONS, [the Forms of.]
to grant our royal licence to our faid Solicitor General and
T. C. to b^ of counfel for them in the faid caufe : we are gra-
cioufly pleafed to condefcend to their requelt, and we do ac-
cordingly hcrcDy difpenf with our faid Solicitor General and
T. C. and give them power, li^nce, and permiffion to appear
in the behalf of the faid A. B. &c. to be of counfel for them in
the faid caufe, as often as there mall be occafion.
Given at our court at St. James's the day of
1744, in the eighteenth yea ^ of our reign.
By His Majefty's command,
Holles Newcastle.
Solicitor General and T. C. Efq. licence to plead.
Towards ihe top thereof is the King's feal, and his name
written with his own hand. The order is upon treble half-
crown (lamps. Tne whoie expence hereof is about eight
pounds, if it be for one counfel to plead ; about ten pounds for
two counfd, and about twelve poun.is for three.
This order mud be fhewn to the counfel permitted to plead
thereby, at the time you deliver your briefs.
Petition jor the Lord Chancellor's Letter MiJJive.
C A. B. plaintiff,
In Chancery Between 4 The. Earl of and others,
£ defendants.
To the Right Honourable the Lord High Chancellor of
Great Britain.
The humble petition of the plaintiffs,
Sheweth,
That your petitioner have exhibited their bill in this ho-
nourable court againlt tfv f, id Earl of and others ;
Your petition 5 therefore molt humbly pray your
Lordihu;'a letter mifiive directed to the faid Earl
of , defiring him to appear and anfwer
your petitioners' faid bill on the fixth day of No-
vember next.
And your petitioners fhall ever pray, &c.
Lord Chancellor's Letter miffive to a Nobleman to appear and
anfwer.
My Lord,
After my hearty commendations to your Lordfhip, this h to
inform you, that t'lere is a bill exhibited ";i the high court of
Chancery agamft your Lordfhip by A. B. &e. of which I have
thought fit to give your Lordfhip notice, rather by this letter,
than by awarding His Majefty's ordinary procefs againft you j
wherefore I do, at the requeft of the faid A. B. (according to
6 the
PETITIONS, [the Forms of.] 433
the manner ufed to perfons of yo;;r quality) defire your Lord-
fhip to give order for the entering your appearance the day,
&c. next, and putting in your anfvver to the faid bill, accord-
ing to the ufual courfe, with all convenient fpeed ; not doubt-
ing your care herein,
I am, my Lord,
Lincoln's-Inn- Your Lordfhip's humble fervant,
Fields. C>
{Petition for a Subpceni returnable immediately.
Between JAn'I'f'f'
\ C. D. defendant.
To the Right Honourable the Matter of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having filed his bill in this honourable
court againft the faid defendant, and the faid defendant living
and refiding within miles of the city of London, as by the
affidavit annexed appears ;
Your petitioner therefore molt humbly prays your
Honour, that he may be at liberty to take out
procefs of fubpeena for the faid defendant to ap-
pear to and anfwer your petitioner's faid bill, re-
turnable immediately.
And your petitioner fhall ever pray, &c]
{Petition for Procefs of Contempt returnable immediately.
Between ' l^ftf'
£ L,. D. defendant.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner, in Eafter Term lafl pad, exhibited
his bill in this honourable court againft the defendant, to v/hich
the faid defendant appeared, but hath neglected to put in his
anfwer thereto-, and the faid defendant living and refiding
within the diftance of miles from the city of London,
as by the affidavit annexed appears :
Your petitioner therefore moll humbly prays your
Honour, that he may be at liberty to make
out procefs of contempt againft the faid de-
fendant, for want of his anfwer, returnable
immediately.
And your petitioner {hall ever pray, &c]
Vol. I. F f Petition
434 PETITIONS, [the Forms of.]
Petition to amend a Bill, by adding a Defendant,
t, 4 f A.B. plaintiff,
Between ■{ r , -p. *, c , ' .
£ L. D. defendant.
To the Right Honourable the Matter of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner filed his bill in this honourable court
againtt the defendant in Term laft, to which the de-
fendant hath appeared and put in his anfwer ; upon which
your petitioner is advifed to make E. F. a defendant in this
caufe :
Your petitioner therefore rnoft humbly prays your
Honour, that he may have leave to amend his
bill, by adding the faid E. F. a defendant there-
to, with apt words to charge him.
And your petitioner ihall ever pray, &c.
Petition to amend a Billy on Payment of twenty Shillings Cofls-,
_. C A. B. plaintiff, and
Between £ Q D and othej . & defendants>
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having filed his bill in this honourable
court againtt the defendant C. D. and others, the faid defend-
ant CD. hath only put in his anfwer thereto, (none other of
the defendants having yet appeared thereto) ; upon perufal of
whofe anfwer, your petitioner is advifed by his counfel to
amend his bill:
Your petitioner therefore moft humbly prays your
Honour, that he may be at liberty to amend
his bill, upon payment of twenty (hillings colt*
to the faid defendant C. D. or his clerk in court,
in refpect thereof.
And your petitioner {hall ever pray, &c.
Petition for a Plaintiff to difmifs his own Bill with Cofls.
_ C A. B. plaintiff,
Between J Q D defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having exhibited his bill into this ho-
nourable
PETITIONS, [the Forms of.] 435
nourable court againft the defendant^ fince which the fald de-
fendant hath put in his anfwer thereto, upon perufal whereof
vour petitioner is advifed to difmifs his hill :
Your petitioner therefore mod humbly prays your
Honour, that his faid bill may ftand diirniffed
out of this court with cofts to be taxed by one
of the Matters of this court.
And your petitioner (hall ever pray, &c.
Petition to refer an Examination to a Majler, and to tax Cojis up-
on the Breach of an Order.
ry f A. B. plaintiff,
\ C. D. defendant.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That the defendant having been examined on interrogatories
touching a contempt laid to his charge, for breach of an order
of this court, of the day of laft, your petitioner
hath examined witneffes for prooi thereof.
Your petitioner humbly prays your Honour, that it
may be referred to a Mafter of this court to con-
fider of the faid examination and depolirions, and
to certify whether the defendant hath committed
the contempt laid to bis charge, and to tax cofts
according to the general order in that behalf.
And your petit oner ihall ever pray, &c.
Petition to be dif charged out of ' Cuftody of the Serjeant at Arms.
« JA.B. and C. D. plaintiffs,
\E. F. and G. H. defendants.
To the Right Honourable the Mafter of the Rolls.
The humble petition of the defendants,
Sheweth,
That your petitioners are and have been (for above a fort-
night) in cuftody of the Serjeant at Arms attending this ho-
nourable court, for not anfwering to the plaintiffs' bill, which
your petitioners have fince anfwered, and paid the cofts of
the contempt, and the clerk of the other fide doth confent
to your petitioners' difcharge, as by the certificate annexed
appears :
Your petitioners therefore humbly pray your Ho-
nour, that your petitioners may be difcharged
F f 2 out
43
\ C. D. and E. his wife, defendants.
To, &c.
The humble petition of the defendant E. D., wife of the de-
fendant C. D.,
Sheweth,
That the plaintiff hath exhibited his bill in this honourable
court againft your petitioner and her faid hufband, whereto
your petitioner hath appeared ; and in regard your petitioner's
faid hufband hath abfconded and lived feparate from her thefe
two years :
Your petitioner therefore mod humbly prays your
Honour, that (he may be at liberty to put in
her anfwer to the plaintiff's faid bill without her
hufband.
And your petitioner fhall ever pray, &c.
Petition
PETITIONS, [the Forms of.] 44I
Petition for Time to anfiver, and return a dedimus.
„ f A. B, plaintiff,
Between { C . D. defendant.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That the plaintiff having filed his bill againft your petitioner,
he has appeared thereto and taken a copy.
That your petitioner refiding in the county of , a
commifhon is iffued to take his anfwer, and made returnable in
three weeks, &c but your petitioner finds he fhall not be able
to return the fame within the time limited by the ftric~t. rules of
the court ; and forafmuch as your petitioner is not in contempt,
nor has yet had any order for time :
Your petitioner humbly prays your Honour, that
he may have time to put in his anfwer to the
faid bill, until , and that all procefs of
contempt for want thereof be in the mean time
ftayed.
And your petitioner (hall ever pray, &c„
Petition to examine a Wilnefs de bene effe before Ijfue joined.
t, t f A. B. plaintiff,
Between 1 r> r» j r i
(_C JJ. defendant.
To the Right Honourable, Sec.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having filed his bill in this honourable
court againft the faid defendant, whereto he hath appeared j
but the faid defendant living a great diftance from London in
the country, he hath obtained time to put in his anfwer till the
fir ft day of next Hilary Term.
That one G. H. of, &c. gentleman, a very material witnefs
for your petitioner in this caufe, and without the benefit of
whofe evidence, your petitioner (as he is advifed) cannot fafely
proceed to a hearing of this caufe; and the f.id G. H. being
feventy years of age or upwards, and very weak and infirm, fo
that in all probability he may not live till your petitioner
can bring his caufe to an iffue, as by the affidavit annexed ap-
pears :
Your petitioner therefore moft humbly prays your
Honour, that he may be at liberty forthwith
to examine the faid G. H. de bene effe^ as a wit-
nefs
44 z PETITIONS, [the Forms of.]
riefs for your petitioner in this caufe, faving all
jufl.exceptions.
And your petitioner (hall ever pray, &c.
Petition for a Special Comntiffton p , and for Commiffioners Names , or
in Default , the Commiflion to iffue ex parte.
Between J A. B. plaintiff,
tfetw.en { C. D. defendant.
To the Right Honourable the Mailer of the Rolls.
The humble petition of the defendant,
Sheweth,
That on the day of laft, the plaintiff exhibited
his bill in this honourable court againft your petitioner, who
has appeared thereto, and taken a copy.
That your petitioner's clerk in court has oftentimes applied
to the plaintiff's clerk for commiffioners names for taking your
petitioner's anfwer, who refufes to give names for that purpofe.
That your petitioner refides in the county of , and
\s advifed to plead, anfwer, and demur to the faid bill :
Your petitioner therefore mod humbly prays your
Honour, that he may be at liberty to take out a
commiffion to plead, anfwer, and demur to the
plaintiff's bill •, and that the plaintiff's clerk in
court may in two days after notice hereof give
commiffioners' names to the petitioner's clerk in
court, to take your petitioner's plea, anfwer,
and demurrer ; or in default thereof, that your
petitioner may be at liberty to take out the faid
commiflion directed to his own commiffioners.
And your petitioner {hall ever pray, &c.
Petition for a Commiflion to qflign a Guardian, and to take the
Defendant's Anfiver by fuch Guardian.
tj . f A. B. and another, plaintiffs,
Between | c D defendant.
To the Right Honourable the Mailer of the Rolls.
The humble petition of the defendant,
Sheweth,
That the plaintiff's exhibited their bill in this honourable
court againfl: your petitioner, to which he has appeared and
taken an office copy.
J*hat your petitioner refiding in the county of has
craved
PETITIONS, [the Forms of.] 443
craved a commiffion to take his anfwer-, and the plaintiffs
have given cammiffioners' names for that purpofe.
But forafmuch as your petitioner is an infant, and cannot
anfwer the plaintiftY bill, nor defend this fuit without having a
guardian aftgncd for that purpofe :
Your petitioner therefore humbly prays your Ho-
nour, that he may be at liberty to fue out a com-
million to affign him a guardian, and to take
his anfwer by fuch guardian.
And your petitioner (hall ever pray, &c.
Petition to take an Anfwer de novo, and to amend the Caption,
andjlay Procefs.
_ ( A.B. plaintiff.
Between j c D J^^
To the Right Honourable the Mailer of the Rolls,
The humble petition of the defendant,
Sheweth,
That in Hilary Term lad the plaintiff filed his bill in this
honourable court againft your petitioner, and a commiffion
iffued to take your petitioner's anfwer, by virtue whereof it
was taken, returned, and filed •, but on looking into the fame
there appeared to be a miftake in the caption, whereupon the
plaintiff obtained an order to fupprefs the faid anfwer, it not
appearing by the faid caption that your petitioner was ever
fwom to the truth of the faid anfwer.
That in regard this is in your petitioner's own delay, who
'is defirous that this miftake fhould be rectified, and is ready
and willing to pay the plaintiff his cofts out of purfe touching
the faid order :
Your petitioner therefore mo ft humbly prays your
Honour, that he may be at liberty to fue out
another commiffion directed to the former com-
miffioners to take his faid anfwer de novo, and
that the caption thereof may be rectified or
amended ; and that your petitioner may have
three weeks' time to return the lame, and that
all further proceedings for want thereof be in the
mean time flayed.
And your petitioner (hall ever pray, &c
A common
444 PETITIONS, [the Forms of.]
A common Petition to receive Exertions.
■n TAB. plaintiff,
Between i n r* a c i *
[L. D. defendant.
To the Right Honourable the Matter of the Rolls.
The humble petition of the plaintiff.
Sheweth,
That your petitioner having exhibited his bill in this ho-
nourable court againft the defendant, who hath put in his
anfwer thtrzto, and your petitioner, being advifed that the faid
anfwer is infufheient in feveral material points, hath caufed
exceptions to be taken thereto. But the faid exceptions not
coming in by the time limited by the rules of this court, the
defendant's clerk in court refufes to accept the fame:
Your petitioner therefore molt humbly prays your
Honour, that the faid defendant's clerk in court
may receive the laid exceptions.
And your petitioner (hall ever pray, &c.
Exceptions cannot be ordered to be received as in due time
after three Terms from the putting in of the anfwer without
fpecial reafons.
Another Petition to receive Exceptions.
Between i~ A ' B ' plaintiff,
between | Q D and otherS) defendants.
To the Right Honourable the Matter of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having exhibited his bill in this ho-
nourable court againft the faid defendant and others, the faid
defendant put in his plea and anfwer ; on arguing of which
plea on the day of laft, it was ordered that the
fame mould Hand for an anfwer, with liberty to your peti-
tioner to except fuch matters as in the faid order are men-
tioned.
That your petitioner has many material exceptions to offer
in purfuance of the faid order, but the drawing up and en-
tering of the faid order, and preparing the faid exceptions,
which are long, having already run out more than the time of
courfe for delivering exceptions, the defendant's clerk in court
xefufss to accept the fame :
Your petitioner therefore mod humbly prays your
Honour, that the faid defendant's clerk in court
may now receive your petitioner's exceptions.
A common
PETITIONS, [the Forms of.] 445
A common Petition to refer Exceptions.
t, f A. B. plaintiff,
Between { £ D. dtfendarifc
To the Right Honourable the Mafte- of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having filed exceptions to the de-
fendant's anfwer, and the time for fubmitting being expired ;
Your petitioner therefore molt humbly prays your
Honour, that it may be referred to one of the
Mafters of this court, to certify whether the
faid defendant's anfwer be fufficient in the
points excepted to, or nor.
And your petitioner fhall ever pray, &c.
Another Petition to refer Exceptions,
t, f A. B. plaintiff,
Between -J n ^ *, , ,
(_C D. defendant.
To the Right Honourable the Mailer of the Rolls.
The humble petition of the plaintiff,
Sheweth,
That your petitioner having exhibited his bill in this honour-
able court againlt the faid defendant, he appeared and put in
his plea and anfwer thereto ; on arguing of which plea, on the
day of la ft, the fame was ordered to ftand for
an anfwer, with liberty to your petitioner to except to fuch
matters as in the faid order are mentioned.
That your petitioner obtained your Honour's order of the
day of laft, that the defendant's clerk in court
fhould receive exceptions as in due time, and accordingly
your petitioner foon after delivered exceptions to the de-
fendant's clerk in court j but the faid defendant hath not fub-
mitted to put in a further anfwer, although his time for fo
doing is expired by the rules of this court :
Your petitioner therefore moft humbly prays your
Honour, that it may be referred to one of the
Matters of this court to look into your peti-
tioner's bill, the defendant's plea and anfwer,
and your petitioner's exceptions, and certify
wherein the faid plea and answer are inefficient,
And your petitioner fhall ever pray, &c.
Petition
44^ PETITIONS, [the Forms of.]
Petition to renew a Seque ft ration.
-„ f A. B. plaintiff,
Between { C . D. defendant.
To the Right Honourable the Lord High Chancellor o(
Great-Britain,
The humble petition ot the piaintifF,
Sheweth,
That the defendant having refufed to anfwer your petitioner's
bill, all procefs of contempt to a fequeftration hath been fued
out againlt him, and a commifljon of fequeltration hath been
fued out, executed, and returned ; but your petitioner hath
fince difcovered, that not above one third part of the faid de-
fendant's eftate is iequeftered, and that the faid commilTion
was committed to the hands of a perfon therein named, who
neglected to fequefter the faid eftate.
Your petitioner therefore molt humbly prays your
Lordfhip, that he may he yt liberty to take out
a new commiffion of fequeltration to fequefter
the faid defendant's eftate, directed to new com-
miflloners.
And your petitioner {hall ever pray, &c.
Petition to withdraw a Replication and amend a Bill, upon Pay~
ment of Twenty Shillings Cojls to filch Defendants as have an-
fwered.
p f A. B. plaintiff,
Between j Q D and otherSj defendants>
To the Right Honourable, &c
The humble petition of the plaintiff,
Sheweth,
That fome time fince your petitioner filed his bill in this
honourable court againft the faid defendants, to which they
appeared and anfwered, and your petitioner replied, but no
witneffes have been yet examined in the faid caufe.
That your petitioner is fince advifed to amend his faid bill,
by adding R. B. a defendant with proper charg es ; and foraf-
much as this is in your petitioner's own delay ;
Your petitioner moil humbly prays your Honour,
that he may have leave to withdraw his repli-
cation, and amend this bill, as he (hall be ad-
vifed ; on amending the copies of the faid bill
of fuch of the defendants' who have anfv/ered
the fame, your petitioner not requiring any
anfwer
PETITIONS, [the Forms of.] 447
anfwer to fuch amended bill from the faid de-
fendants who have already anfwered.
And your petitioner mail ever pray, Sec.
Petitions for fubpeenas to rejoin, and that Service on the Clerk in
Court may be good, and to join andjlrike Commijj] oners' Names,
Between $ A ' B ' plaintiff,
\ C. D. and others, defendants.
To the Right Honourable, Sec.
The humble petition of the plaintiff",
Sheweth,
That your petitioner filed his bill in this court againft the
faid defendants, who have appeared thereto, and put in their
anfwers, to which your petitioner hath replied, and is defirous
to fpeed his caufe.
Your petitioner therefore humbly prays your Ho-
nour, that he may be at liberty to take out
fubpeenas to rejoin, returnable immediately, and
that fervice thereof on the defendant' clerks in
court may be deemed good fervice on the de-
fendants, and that your petitioner may be at
liberty to fue out a commiflion for examination
of his witnelTes, returnable without delay ; and
that the defendants' clerks in court do, in four
days after notice hereof, join and (Irike com-
miiTioners' names with your petitioner's clerk ia
court ; or in default thereof, that your peti-
tioner may have a commiflion directed to his
own commiffioners.
And your petitioner fhalJ ever pray, Sec.
Note. To the prayer of this petition may be added, And
that your petitioner may be at liberty to examine in Term-
Time.
Petition to join and flrike Commiffioners'' Names, or in Default, U
iffue a Commiffion ex parte.
Between I A> B ' P IalntitF »
.Between j C . D. defendant.
To the Right Honourable, Sec.
The humble petition of the defendant,
Sheweth,
That on the day of laft your petitioner was
ferved with an order obtained upon the plaintiff's petition of
the
448 PETITIONS, [the Forms of-]
the day of for a fubposna to rejoin, returnable
immediately, and that fervice thereof on your petitioner's
clerk in court fhould be good fervice, and that the petitioner's
clerk in court fhould, in four days after notice, join and ftrike
commiffioners' names with the plaintiff's clerk in court, or that
in default thereof the plaintiff might fue out a commiffion di-
rected to his own commiflioners.
That your petitioner, upon receiving the fame, was ready
to comply with the terms therein mentioned, and accordingly
applied to the plaintiff's clerk in court, to join and ftrike
commiffioners' names with him, who informed your petitioner's
clerk in court, that he had not names, and put him off with
trifling excufes.
That your petitioner has very good reafon to believe that
fuch excufes were made merely for delay •, and in regard
your petitioner hath feveral material witneffes, as he is advifed,
to examine, and is defirous the caufe fhould be fpeeded :
Your petitioner mofl humbly prays your Honour,
that the plaintiff's clerk in court may in four
days after notice join and ftrike commiffioners'
names with your petitioner's clerk in court ; or
that in default thereof, your petitioner may fue
out a commiffion for examination of witneffes,
directed to his own commiffioners.
And your peti ioner fliall ever pray, &c.
'Petition to alter a Commiffioners Name in a Commiffion, and for
Liberty to renew the fame, and for Time to return it.
t, f A.B. plaintiff,
Between j C . D. defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That your petitioner laft Eafter Vacation took out a com-
miffion to examine witneffes, wherein the defendant joined,
but your petitioner was not able to execute the fame during
that Vacation.
That your petitioner is in hopes of doing the fame this va-
cation; but one of the commiffioners, (to wit) T. B. Efq is
engaged to be in London ; whereupon your petitioner hath
named the perfons fubfcribed in his room, but the defendant
refufes to ftrike the faid names in hopes of delaying your peti-
tioner, and that the Vacation may be loft.
Your petitioner therefore mofl humbly prays your
4 Honour,
PETITIONS, [the Forms of.] 440
Honour, that he may be at liberty to alter the
commiffion, and that your Honour will be
pleafed to appoint, which of the two perfons
fubferibed, (hall ftand in his room, and that
your petitioner may be at liberty to renew the
faid commiffion, and to make the fame return-
able without delay.
And your petitioner (hall ever pray, 8
45© PE IITIONS, [the Forms of.]
nour, that he may be at liberty to add an inter-
rogatory or two to his former fet of interroga-
tories, but fo as not to examine any witnefs
that hath already been examined.
And your petitioner (hall ever pray, &c.
Petition to enlarge Publication,
-j r A.B. plaintiff,
Between ( C . D. defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That on the inftant a rule was entered by the de-
fendant's clerk in court for paffing publication in this caufe j
which rule is not yet expired.
That your petitioner has not yet been able to examine any
witneffes, though he has feveral material witncfTes, (as he is
advifed) to examine in this caufe, without whofe teftimony he
cannot fafely proceed to a hearing :
Your petitioner therefore moft humbly prays your
Honour, that publication in this caufe may be
enlarged till the firft day of the next term.
And your petitioner fhall ever pray, &c*
Petition to enlarge Publication.
Between C A. B. plaintiff,
between { c. D. defendant.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That a commiffion has been executed in this caufe, and h
leturnable , fi.nce which the plaintiff hath given a rule to
publifh, but the fame is not yet expired ; and forafmuch as your
petitioner hath feveral material witneffes to examine in this
caufe who live in and about the city of London :
Your petitioner therefore moft humbly prays your
Honour, that public tion in this caufe may be
enlarged for a fortnight.
And your petitioner fhall ever pray, &c.
Petithn
„ ETITIONS, [the Forms of.] 451
Petition to enlargt Publication.
.„ f A. B. plaintiff,
Between { C . D. defendant.
To the Ri^ht Honourable, &c.
The humble petition of the defendant,
Sheweth,
That this caufe being at iffue, feve r al witneffes have b^en
examined on the part of the plaintiff, and thi> day being the
day of , a r^e is entered by the plaintiff's clerk
in court, for paffing publication in this caufe.
That by reafon of your petitioner's and his Solicitor's -II-
nefs, your petitioner has not been able to examine his witneffes*
this vacation, although he hath feveral very material witn-ffes,
(as he is advifed) to examine ; and in regard your petitioner
hath no intention to poflpone the fetting down this caufe for
hearing :
Your petitioner therefore humbly prays your Ho-
nour, that publication in this caufe may be en-
larged for a month.
And your petitioner fhall ever pray, &c.
Petition to enlarge Publication, fo as not to binder fitting down the
Caufe, and for an original and crofs Caufe to come on together^
.„ f A. B. plaintiff,
Between j C . D / defendanL
And the faid C. D plaintiff,
And the faid A. B. defendant.
To the Right Honourable, &c.
The humble petition of, &c.
Sheweth,
That thefe caufes being at ifTue, commiflions were taken out
and executed, and witneffes examined thereupon in the laft
long vacation.
That your petitioner (the plaintiff in the original caufe)
the twenty-firft inftant caufed a rule to be given for paffing
publication in the original caufe, but having feveral material
witneffes (as he is advifed) ftill to examine, and your peti-
tioner having confented and agreed to the feveral matters
contained in the prayer of this petition, your petitioners
clerks in court having fubferibed their names teflifying fu:h
confent ;
Your petitioner therefore moil humbly pravs your
Gg i Honour,
452 PETITIONS, [the Forms of.]
Honour, that publication may be enlarged in
the original caufe until the firft general feal
after this term, and that publication may then
pafs in both caufes, but not fo as to hinder the
plaintiff in the original caufe from fetting down
the fame_for hearing this term, and that the
plaintiff in the crofs caufe may be at liberty to
fet down his caufe to be heard at the fame
time.
And your petitioner (hall ever pray, &c.
Petition is enlarge Publication, and for a Commijfton to examine, &c
*, t • f A. B. plaintiff.
Between j C . D. defendant.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That the plaintiff has given rules to produce witnefles, and
co pafs publication as of the lafl term, but has not examined
any witnefles.
That your petitioner hath feveral very material witnefles (as
he is advifed) to examine in this caufe, without whole tefti-
many he cannot fafely proceed to a hearing; and foraf much
as your petitioner lives in, &c.
Your petitioner therefore molt humbly prays your
Honour, that publication in this caufe may be
enlarged until the firft day the next term, and
that your petitioner may have a commiffion fon
examination of witnefles, and that the plaintiff's
clerk in court may join and flrike commif-
fioners' names with your petitioner's clerk in
court, in four days after notice to the plaintiff's
clerk in court, or that in default thereof, your
petitioner may be at liberty to take out a com-
mi (lion this vacation directed to his own com-
miffioners.
And your petitioner (hall ever pray, &c.
Petition
PETITIONS, [the Forms of.] 4"3
Petition toferve a fubpcena to hear Judgment on a Clerk in Courts
Defendant abfconding.
n f A. B. plaintiff,
Between | c. D. and others, defendants,
To the Right Honourable, &c.
The humble petition of the plaintiff,
Shevveth,
That your petitioner's caufe being fet down to be heard on
day of next enfuing, and fubpoenas to hear judg-
ment have been iffued and ferved on all the defendants, except
the defendant C. D., and the faid defendant C; D. abfeonding
and concealing himfelf, fo that your petitioner is not able to
ferve him with z fubpcena to hear judgment in this csrufe, as by
the affidavit annexed appears :
Your petitioner therefore mod humbly prays your
Honour, that fcrvice of the faid fubpcena to hear
judgment on the faid defendant C. Jj's clerk in
court may be deemed good fervice on the faid
defendant.
And your petitioner (hall ever pray, &c
Petition to prove an Exhibit viva voce at the Hearing.
„ f A. B plaintiff,
Between < ^ ^ j c , .
£ C D. defend.uU.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That this caufe being fet down to be heard before your Ho-
nour, your petitioner is aclviicd it will be ntceffary for him
to prove, at the hearing thereof, a certain bond bearing date
the day of entered into by the laid defendant
to your petitioner in the penalty of jooo/. conditioned for the
payment of 500/. and interelt.
Your petitioner therefore mod humbly prays your
Honour, that he may be at liberty at the hear-
ing of this caufe, to examine one or more wit-
nefs or witnefks viva voce to piove the faid
bond.
And your petitioner fliall ever pray, &c.
G g 3 Petition
454 PETITIONS, [the Forms of.]
Petition that an Anfwer taken in one Caufe may be ready and made
ufe of at the Hearing of another Caufe.
,, C A. B plaintiff,
Between £ C . D. defendant.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That your petitioner having exhibited his bill in this ho-
nourable court againft the now plaintiff, for a difcovery of
their right and title to the feveral premiffes in queftion in this
caufe, to which the now plaintiff put in his anfwer :
Your petitioner therefore mod humbly prays your
Honour, that he may be at liberty to read and
make ufe of the now plaintiff's anfwer put in-
to your petitioner's faid bill at the hearing of
this caufe.
And your petitioner fhall ever pray, &c.
Petition that IDipfitions taken in one Caufe may be read and made
ufe of at the Hearing of another Caufe.
.,, f A. B. plaintiff,
Between j C . D. defendant.
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That one Mr. H. I., a mortgagee of the premifes in queftion
in this caufe, having fome time heretofore exhibited his biXl to
forcclofe in this honourable court againft your petitioner and
the now plaintiff, and iffue being thereupon joined, feveral
witneffes were examined in the faid caufe.
Your petitioner therefore moft humbly prays your
Honour, that he may be at liberty, at the hear-
ing of this caufe, to read and make ufe of the
depofitions taken in the faid caufe, faving all
juft exceptions.
And your petitioner fhall ever pray, &c
Petition
PETITIONS, [the Forms of.] 4 :^
Petition for Leave to examine Witnejfes after Publication) upon the
ufual Affidavit.
Between i A B. plaintiff,
Between { C. D. defendants.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That publication in this caufe is paused, and the caufe is fet
down for hearing before your Honour, but your petitioner
having feveral material witncfles to examine, without whofe
evidence he cannot fafely proceed to a hearing, and your pe-
titioner, his clerk in court, and folicitor, not having feen or
infpedled the depofitions taken in this caufe, or otherwife pub-
lifhed or caufed to be publifhed the fame, as by the affidavit
annexed appears :
Your petitioner therefore moft humbly prays your
Honour, that publication in this caufe may be
enlarged for a fortnight, and the caufe adjourned
for that time.
And your petitioner fhall ever pray, &c.
For the form of an affidavit to be annexed to this petition,
vide Affidavits.
Petition to fet down a Caufe for Rehearing on defendant's having
made Default, and not appearing at the Hearing.
Sheweth,
That this caufe came on to be heard the day of
laft, and your petitioner not attending, your Honour
made the ufual decree ; and your petitioner being willing to
pay to the plaintiff the cofts of that day's attendance, when-
ever the plaintiff's clerk in court fhall think fit to deliver your
petitioner a bill of the fame :
Your petitioner therefore moft humbly prays your
Honour, to appoint fome fhort day for the
hearing of this caufe as to your petitioner.
And yoi r petitioner fhall ever pray, &c.
g 4 Petition
456 PETITIONS, [the Forms of.]
Petition to Jet down a Plea to be argued.
f A. B. plaintiff,
between j Q D> and otherg) defendants#
To the Right Honourable the Lord High Chancellor of
Great Britain.
The humble petition of the defendant C. D.
Sheweth,
That in Term laft the plaintiff filed his bill in this
honourable court againft your petitioner and others, fince
wnich he has thought fit to amend the fame.
That in your petitioner put in his plea and anfwer
to the faid amended bill, which plea the plaintiff hath not yet
fet down to be argued.
Your petitioner therefore humbly prays your Lord-
fhip, that he may be at liberty to fet down his
plea to be argued ; and that your Lordfhip
would be pleafed to appoint a day for the ar-
guing thereof.
And your petitioner will ever pray, &c.
Petition to fet doivn Exceptions to a Majler's Report*
- S A. B. plaintiff.
Between j C . D. defendant.
To, &c.
The humble petition of the plaintiff,
Sheweth,
That your petitioner hath lately filed exceptions to tht
port of Mr. K. one of the Mailers of this court, made in rfiis
caufe bearing date the day of laft part, and
depofited 5 /. as by the Regifter's certificate hereunto annexed
?ppears.
Your petitioner therefore moft humbly prays your
Lordfhip to appoint a ftiort day for the arguing
of the faid' exceptions.
And your petitioner (hall ever pray, Sec.
Petition to Jet doivn a Caufe for Hearing.
^ C A. B. plaintiff,
Between £ C . D. defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That publication is by order, bearing date the day of
to
PETITIONS, [the Forms of] 457
to pafs in this caufe the firfk day of next term ; and
your petitioner by the fame order is to procure; the faid caufe
to be fet clown to be heard fome time within the f nd Term.
Your petitioner therefore humbly prays vour Honour
that this caufe may be fet down in the paper
of caufes for the laft day of caufes within the
next Term.
And your petitioner fnall ever pray, &c.
Petition to appoint ajhort Day for a farther Hearing en a Majlcr's
Report.
-d f A. B. plaintiff,
Between j C . D. defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That on the hearing of this caufe on the day of
1767, it was ordered and decreed as in the decree), and after
the faid Matter fhoukl have made his report, fuch father order
fliould be made therein as fhould be juft.
That in purfuance thereof the faid Matter hath made his
report bearing date the day of jalt palt in relation
thereto.
Your petitioner therefore mod humbly prays your
Lordftiip to appoint a fhort day for the hearing
of this caufe on the faid Matter's report.
And your petitioner (hall ever pray, &c.
petition that Service of an Order nifi on the Clerks in Court , mcy
be good Service.
Between $ A B ' " plaintiff,
between j Q D -^ R and Q H defendants#
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That by the decree made on the hearing of this caufe the
day of 1 j 4 3 . it was referred to Mi T. one
of the Matters of this court, to compute what was clue to your
petitioner for principal, intercft and colls, tor the fum of
500/. fecured 10 your petitioner on the premifes in queltion in
this caufe.
That the faid Matter, by his report dated the day
of 174-b certified to be due to your petitioner (on
faid fecurity) the fum of 700/. ior his principal, itnerell
and
458 PETITIONS, [the Forms of.]
and cofb, and your petitioner having on the day of
1744, obtained an order of this court to confirm the
faid report (unlcfs caufe), he has not been able to get the
faid order fervcd upon the faid feveral defendants by reifon the
faid defendants livcat a great diftance from each other in fe-
veral counties of England, as by the affidavit annexed appears:
Your petitioner therefore moll humbly prays your
Honour, that fcrvice of the faid order on the
feveral clerks in cour, (who are concerned for
the faid feveral defendants in this caufe), may
be deemed good fervice on the faid feveral de-
fendants.
And your petitioner fhall ever pray, &c
Petition to enter a decretal Order nunc pro tunc.
„ C A. B. plaintiff,
Between -J n ^ \ ,- , .
(_ L. D. celendant.
To the Right Honourable, Sec.
The humble petition of, &c.
Sheweth,
That upon the hearing of this caufe the day of
a decree was pronounced, which has fince been
drawn up and paffed by the Regifkr; but the time for entering
the fame being elapfed by the rules of the court :
Your petitioner therefore humbly prays your Ho-
nour, that the faid decretal order may be en-
tered nunc pro tunc.
And your petitioner fhall ever pray, &c.
Petition tofign and inrol a Decree nunc pro tunc
_ f A. B. phiintifF,
Between { C . D. defendant.
To the Right Honourable, &c.
The humble petition of the plaintiff,
Sheweth,
That the time for figning and inrolling the decree in this
caufe is elapfed, according to the ftricl: rules of the court :
Your petitioner therefore humbly prays your Ho-
v nour, that he may be at liberty to fign and inrol
the faid decree nunc pro tunc.
And your petitioner fhall pray, &c.
Petition
PETITIONS, [the Forms of.] 459
A Petition for an Infant Truflee to convey , purfuant to Stat. 7.
Ann.
To the Right Honourable, &c.
The humble petition of M. C. widow and administratrix of
J. C. Efq. deceafed,
Shewerh,
That by indentures of leafe and releafe bearing elate the 26th
and 27th davs of July 1-2S. the faid indentures of releafe,
being tripartite, and made between N. K. of the town and coun-
ty of S. Merchant, of the fuft part, X. M of the faid town
and county, Merchant, and E. his wife of the feeond part, and
your petitioner's faid late hufband by the num.- of J. C. of J. in
the county of S. Efq. of the third part, reciting as in the laid
indenture of releafe is recited, and for the conli 'er.:tions there-
in mentioned, the faid N. K. T. IYJ. and E. his wife diJ grant,
releafe and convey unto the faid J. C. all that capital meffhage
or munfion-houfe, called or known by the nameoi B. H. other-
wife , with its rights, members and appurtenances,
lituate and being in the town of S. aforefaid, to hold to the faid
J. C. his heirs and affigns, fu eject to a certain condition or
provifo of redemption on the payment of the principal fum of
one thoufand pounds and intereft, by the faid . M. and E. his
wife, or either of them, their or either of their heirs, exepu-
torp, adminiftrators or affigns, to the faid J. C. his heirs, exe-
cutors, adminiftrators or affigns, on the day of Decem-
ber then next.
That the faid money was not paid according to the faid con-
dition or provifo, and there now remains juftly due and owing
to the eftate of the faid J. C. upon the faid mortgage, the prin-
cipal fum of eight hundred pounds, with a confiderable arrear
of intereft.
J hat the faid J. C. the mortgagee is lately dead inteitate,
leaving J. C his fon and heir at law an infant, under the age
of twenry-one years ; and your petitioner, being the widow of
the faid J. C. deceafed, hath duly obtained letters of adminif-
tration of his perfonal eftate, and is thereby, amongft other
things, become intitled to the principal money and intereft now
remaining due on the faid mortgage.
T hat your petitioner is advifed tha<; the faid J. C. the infant,
is a truftee of the legal eitate of the faid mortgage, for the be-
nefit of your petitioner, and enabled to convey within the intent
and meaning of the ftatute made in the 7th year of the reign of
her late Majefty queen Anne, intitled, An Act to enable infants
who
460 PETITIONS, [the Forms of.]
who are feifed or poffcffed of eftates in fee in trufi, or by way
of mortgage, to make conveyances of fuch eftates.
Your petitioner therefore humbly prays, that your
Honour will be pleafed to order the faid J. C.
the infant to convey his legal eftate in the faid
mortgaged premifes to your petitioner, or as (he
fin all dired ; or that your Honour will make
fuch other order for your petitioner's relief in
the premifes, as to your Honour fhali feem
m,ec:.
And your petitioner fhall ever pray, &c.
8 Jan. 1733.
Let it be referred to a mafter to examine and certify
whether this is a mortgage within the meaning of the faid aft,
and how much is due, and to whom the mortgage money doth
•belong; and after the matter fhill have made his report, fuch
farther order fhall be made as fhall be jutt.
[Petition for a Perfon ccme of Age to enlarge Time for Jheiving
Caufe againfl a Decree.
~ ^ f A. B plaintiff,
Between { c D< 5 cfcndant .
To the Right Honourable, &c.
The humble petition of the defendant,
Sheweth,
That upon hearing this caufe before your Honour the day
of '740, your petitioner being then an infant, it was
(amongft other things) decreed, that in default of your peti-
tioner s paying what fhould be certified due to the plaintiff for
principal, intereft, and cofts on the mortgaged premifes in ques-
tion, at fuch time and place as the Malicr fhould appoint, that
then your petitioner might beabfolutely foreclofed ot all equity
of redemption to the fame, unlefs your petitioner (being the
heir at law) upon fervice of zfubpxna for that purpole, fhouid
within fix months, after he attains his age of twenty-one years,
fhew good caufe to the contrary.
That your petitioner about three months fince attained
his age ot twenty-one years, and hath been ferved with zfub-
pesnu accordingly.
That by region of the vacation your petitioner cannot apply
to fhew caufe againft the faid decree (if he fhould be advifed
fo to do) and for that the plaintiff cannot be a fufferer, being
jn poileffion of the premifes :
Your;
PETITIONS, [the Forms of.] 461
Your petitioner therefore mod humbly pr.iys your
Honour, that he may have till the end of the
next Term to fhew caufe againft the f ac! decree,
and that in the mean time the faid plaintiff may-
be flayed from making the faid decree abfolute
againft your petitioner.
And your petitioner fhall ever pray, Sec]
Petition to tax a Solicitor's Bill of Co/Is.
To the Right Honourable, &c.
The humble petition of A. B.
Sheweth,
That your petitioner fome time frnce employed one Mr,
C. D.( one of the folieitors of this court) to profecute, folicit,
and defend for your petitioner, divers fuits depending in this
court, and feveral other mattery as your petitioner's attorney
and folicitor.
That the faid fuits and matters being all long fince conclud-
ed ; your petitioner has often applied to the faid Mr. D. to
make out his bill of fees and difburfements, and to give your
petitioner an account of what monies he had received of your
petitioner for and on account of the fame, and to give up and
deliver to your petitioner all his deeds, writings, books of ac-
count and vouchers, which he hath or ever had, belonging to
vour petitioner ; your petitioner at the fame time offering to
pay and fatiofy the faid Mr. D. for what fhould appear to be
jui'lly due to him. But the faid Mr. D. nath hitherto neglected
to do the fame :
Your petitioner therefore mofl humbly prays vour
Honour, that the faid Mr C. D. may be ordered
to deliver to your petitioner his biil of fees and
difburfements, and that the fame may be refer-
red to one of the Matters of this court to be
taxed, and that the faid Mr. D. may be exa-
mined upon interrogatories, or account upon
oath, as the Matter fhall think fit, as to all funis
received or paid by or to the faid Mr. D. or to
his ufe on account thereof, or touching any ar-
ticles or charges in his faid bill, and that on pay-
ment of what (if any thing) fhall appear due to
the faid Mr. D. or in cafe he \i overpaid, that
he may refund and repay to your petitioner the
overplus, and that he may be ordered to deliver
to your petitioner ujon oath, all deeds, papers,
io writings,
462 PETITIONS, [trie Forms of.]
waitings, books of account and vouchers, which
} e hath, or ever had, of or belonging to your
petitiorier; your petitioner hereby fubmitting to
pay what fhall appear due to the faid Mr. D.
and that all proceedings agajnft your petitioner
i i; be Hayed till the Mailer fhall have made
Ins report.
And your petitioner (hall ever pray, &c.
Another of the like Kind upon a Bill delivered.
TA.B. p!a
1 CD. del
Bmaintifi,
etween -J ^ ^ \ c '
Pendant.
To the Riyht Honourable, SiC.
The humble petition of the plaintiff",
Sheweth,
That your petitioner employed one Mr. G. H (one of the
folicitovs of this court) to profecute and folicit this fuit.
That the faid Mr. G. H. hath d Kvered a bill of fees and dif-
burfemcnts to your petitioner, which your petitioner conceives
to be very extravagant; and the faid Mr. G. H. threatens to
fue your petitioner for the fame, though your petitioner was al-
ways, and is (till ready and willing, and hereby offers to pay
the faid Mr. G. his jufl fees and difburfements:
Tour petitioner therefore moft humbly prays your
Honour, that it may be referred to one of the
Mafters of this court to tax the faid Mr G. H's
bill, and that all proceedings at law againffc
your petitioner may in the me in time be flayed,
And your petitioner fhall ever pray, &c.
\To vacate Recognizance of Receiver and his Sureties.
_ p , t, . f A.B. plaintiff.
In Chancery. Between ^ ^ n , r : , .
; \ C. D. defendant.
To the Right Honourable, &c.
The humble petition of C. K.
Sheweth,
That by order made in this caufe, dated toth June laft, it
was referred to Mr. Pepys, to appoint a receiver of the rents
and profits of the teftator's. real eflates ; and purfuant there-
to, the faid mafter appointed your petit oner receiver thereof.
That on the i 5th day of June your petitioner, together with
I. B. and B. K., entered into a recognizance to the Right
lonourable the Mafter of the Rolls and Peter Holford, Efq.
icn one of the Mafters of this court, in the fum of 300I. each,
1 conditioned
PETITIONS, [the Forms of.] 4 rt 3
conditioned for your petitioner's duly and annually accounting
for what he fhould receive out of the rents and profits of the
faid eftates> and anfwering and paying fums according to the
directions of the court.
That your petitioner hath palled his accounts down to Lady
day laft, and the faid Matter certified there then remained in
your petitioner's hands on the balance of his account, the funi
of £ which belonged to the defendant C. D.
That by an order made in this caufe, dated 6th day of July
laft, it was ordered that your petitioner fhould deliver to the
defendant C. D. poffefTion of fo much of teftator's real eftate as
then remained unfold, and that he fhould pay to the faid C. D.
the faid fum of /.. , the balance remaining in your petition-
er's hands as aforefaid ; and thereupon he was to be difcharged
from the faid receiverfhip, and be at liberty to apply to the
court to have the recognizance entered into by him, and his
fureties vacated.
That poffcffion of faid teftator's real eftate then remaining
unfold hath been accordingly delivered to faid C. D. and faid
balance of £. , reported to be in the hands of your peti-
tioner, hath alfo been paid to faid C. D. purfuant to faid
order :
Your petitioner therefore prays your Honour that
the recognizance, entered into by your petitioner
and his faid fureties as aforefaid, may be va-
cated, -and that the proper officer may attend
your Honour with the record of the faid recog-
nizance for that purpofe.
And your petitioner will ever pray, Sec]
( 4*4 )
CHAPTER THE SIXTY-THIRD.
Of Motions,
MOTION is the requeft of a party, made ore tcnus to the
_ court by his counfel.
And a motion of courfe is, where by a {landing rule, or the
known courfe of the court, the thing requefled is to be granted
without hearing both fides : on thefe motions no * notice is ne-
ceffary -, nor will the court hear any defence againft motions
of courfe -, but the adverfe party may move to fet them afide,
if the orders io obtained be to his prejudice, or obtained upon
a falfefuggeftion. And note; moft matters of courfe may be
printed on petition as well as on moving the court.
Other motions there are, which would be alfo of courfe, if
the fa&s alledged flood fingle by themfelves •, but becaufe
there may befome other fad or circumftance in the cafe, lock-
ed un in the breaft of the party, which the court cannot then
fee, and fuch motion requeited feems to be of an extraordinary
nature ; therefore in fuch cafes the court ufually grants fuch
orders only nifi, although there be notice given.
There are likewife other motions which are not grounded on
the general rules of the court, but are fometimes befides, or
againft it ; and thefe are granted or denied according to the dif-
cretion of the court, after hearing counfel on both fides.
All motions made on extraordinary occafions are very rarely
granted without notice •, and generally in fuch cafes an affidavit
of the fadls alledged muft be read in court. And before any
fuch motion is made, and not defended by the adverfe party,
an affidavit of notice mud be filed, and a copy thereof produced
under the hand of the Regifter of the Affidavit Office or his de-
puty, if you think you fhall need to prove your notice. And
notices of motion muft be in writing, and every thing the party
moves for fhould be expreffed therein; and they mult be figned
by the clerk in court, attorney or folicitor ; otherwife they are
not good.
[The Court will not ordinarily extend the order beyond the
notice; as where notice was, that the court would be moved
that the plaintiff might be put into pofleffion, and a receiver ap-
* A motion of courfe cannot be oppofed, though notice 13
given of it, Mof. 255.
b pointed,
MOTIONS. 465
pointed, the Court would not order that nothing fhould be re-
ceived by the defendant in the mean time, though the defend-
ant did not defend the motion (a) ]
[So notice was given of a motion to fuperfede an excommuni-
cato capiendo, becaufe the bifhop's feal was not to the fignijicavit,
which, upon the motion happening otherwife, the counfel
would have infilled that the excommunication was before the
laft general pardon ; but the Court would not hear them to
that, till another day, becaufe there was no notice given of
this exception, which there ou^ht to have been, though there
need none of the other, which any]one, as amicus curie, might
have (hewn had it been true (0).']
Notices of motion muft be firrved upon the adverfe party,
or, which is moft ufual, on his clerk in court; or delivered at
his feat to his clerk or agent. And they are to be ferved two
days before the motion be made ; as if the motion is to be made
on Thurfday, the notice muft be given at leaft on Tuefday.
But 'tis not good to ferve a notice on Saturday, (but on Friday)
to move on Monday ; Sunday not being reckoned a day in fuch
cafes.
[Notice of motion on Saturday muft be given for Tuefday,
not Monday, except it happens to be the fecond day of
the beginning, or the laft day fave one, of the end of the
term (c) ]
A notice of motion to receive money out of court muft be
ferved perfonally on the adverfe party, unlefs the court upon
a former motion has ordered fo many days' notice to the clerk
in court, as may be fufficient to fend his client notice, and to
have his anfwer ; or if he be in the kingdom, but hard to be
found, upon an affidavit thereof, fuch notice may r>e ordered to
be ferved on the clerk in court.
Motions may ftand over to be heard another day, where the
court thinks fit. And if a notice of motion be given thrice and
not moved, the party giving it (hall not move the fame notice
a fourth time-, but the adverfe counfel> upon producing thefe
four notices, may pray the court that the party may pay the
cofts of the three former notices before he moves the fourth
notice; which the court generally orders: and if it be a mat-
ter of weight, and many counfel feed, the court will order
cofls to be taxed by a Mafter.
In Term, every Tuefday, Thurfday, and Saturday, are dm
for fealing writs, except they be fuch holidays when the court
don't fit. And motions of courfe are ufually made every day
(a) Wy. Pratt. Reg. 287. (I) Ibid, 287. (r) 6 Vef. 146.
Vol. I. H h in.
4«6 MOTIONS, [the Forms of.]
in Term at the rifing of the court, after the cau r es are heard.
But every Thurfday in Term is appointed by the court to hear
motions in general (except it happens to be the fecond day of
the beginning, or the laft day fave one, of the end of the Term ;)
and no caufes are heard that day : and fo are the firfl and laft
days of the Term for motions only.
In the vacation, only the feal days appointed by the chan-
cellor are days of motion ; but the morning after Term, mo-
tions are made at the Rolls. [Upon fuppofal that fome may
probably remain which fhould have been moved, bui could
not the lad day of Term (d)."]
[No motions are heard after the laft general feal after Term,
till the firft general feal before the enfuing term ; but things
which require difpatch may be petitioned for, and right will be
done ; for this court is always open (e).~]
[Where by reafon of the abfence of a counfel who fhould
have defended a motion, the court thinks fit to put it off for
thnt time, the former notice is often ordered to be continued,
fo as the matter may be moved another day upon notice to fuch
abfent counfel only {f).~\
[ The variety of fhapes in which giotions are made in this court
to obtain relief according to the peculiar circumftances of each
cafe, renders it impoflible to (late every pofhble form in which a
notice of motion may be given ; the fubjoined forms of notices
in ordinary cafes may be fo far defcriptive of the general out-
lines of a notice of motion as to give an idea to the young
practitioner of the form in which fuch notices are generally
conceived.]
\Notice of Motion by a Purchafer of an Eflate before a Majter> to be
at liberty to pay in his Purchafe Money, &c.
C John Wood and others, plain^ffs.
In Chancery. Between 1 Thomas Orde, and others, defend-
ants.
Take notice, that John Thorn fon Efq. the purchafer of lot
3, one part of the premifes in queftion in this caufe, intends
to move this honourable court on Thurfday the 17th day of this
inftant, December, being the laft general feal after Michael-
mas Term, Or fo foon after as counfel can be heard, that he
may be at liberty, on or before the 23d day of this inftant,
December, to pay the fum of 2,8ooI. being the purchafe mo-
ney s< r the faid lot 3. into the Bank, with the privity of the
Accountant General of this court in truft in this caufe ; and
U) Wy-. Praa. Reg. 2SS. (e) Ibid, (/")Wy. Praft. Reg. ?&2k
7 ilia
MOTIONS, [the Forms of.] 467
that the faid John Thompfon may thereupon be let into pof-
feffion of the premifes comprized in the faid lot, and may re-
ceive the rents and profits thereof from Michaelmas la it ; and
that the faid money, when fo paid in, may not be paid out
without notice to the faid purchafer. Dated this 15th day of
December 1802.
J. "Williams, folicitor for the
faid purchafer.
To Mr. Radcliffe, plaintiff's clerk in court,
Mr. Wainwright, defendant's clerk in court.]
[In Chancery. Between j £. B. plaintiff,
L ; I C. D. defendant.
Mr. J. N.
Take notice, that the defendant intends to move this ho-
nourable court on Thurfday next the 20th inftant, (if in the
vacation you add, " being the fir ft general Jeal after term,")
or fo foon after as counfel can be heard, that the time for re-
deeming the mortgaged premifes in queftion in this caufe,
may be enlarged for three months. Dated this day of
1790.
Yours, Sec.
[To Mr. J. N. _ F. B. folicitor for the faid
Plaintiff's clerk in court. defendant
[In Chancery. Between $ *'*' P la ff int j$
; ^ C. D. defendant.
Mr. B. Y.
Take notice, that the defendant intends to move this ho-
nourable court on Thurfday next, being- the 20th inftant, or
fo foon after as counfel can be heard, that the plaintiff's bill
may ftand difmifled out of this court, for want of profecution,
with colts to be taxed by one of the Mafters of this court.
Dated this day of 1790.]
Motion to invejl a Sum of Money in the 3I. per cent. Annuities ; and
to appoint a Receiver to get in the Arrears of Rent.
In Chancery Between f£.B plaintiff,
; 1 C. D. defendant.
Mr. Barker.
Take notice that this court will be moved on Thurfday 'the
20th day of March next, being the third general feal after
Hilary Term, or fo foon after as counfel can be heard, on the
part and behalf of A. B. the plaintiffabove named, that the fum '
of 2338I. 12s. 5d. cafh in the Bank, (landing in the name of
H h % the
4 8 MOTIONS, [the Forms of.]
the Accountant General of ihis court, in trufl in this,
caufe, may be laid out and invefted in Bank ? per cent, confol.
annuities in the name and with the privity of the faid Account-
ant General, fubject to the further order of this court*, and
that Goodman Roberts^ the late receiver of the rents and pro-
fits of the eflatf'S in queflion in this caufe, may pay into the
Bank, in the name of the faid Accountant General, in trufl in
this caufe, the fum of 50I. being the balance in his hands,
upon the foot of his laft account ; and that the fame, when fo
paid in, may he laid out and invefted in like annuities-, and
that a new receiver may be appointed to get in all the arrears
of rent due from the feveral tenants of the premifes. Dated
this day of 1790.
Your's,
To Mr. Barker, Calfb Atkinson,
clerk in court for folicitor for the faid A. B.
the defendant C. D.] the plaintiff above named.
r Plaintiff's Moiicn to dif charge Order for three W eels' further Time
for Defendant to anfiver.
The plaintiffs intend, &c. that the order made in this
caufe the day of for the defendant to
have three weeks' further time to put in his anfwer to plaintiff's
bill may be difcharged for irregularity. Dated, &c]
[This motion muft be made on the order being obtained con-
trary to the rule of the court, and muft be fupported by (hew-
ing office-copies of the former orders he obtained, or of the pe-
titions, if under falfe allegations.]
\Motionfor a Commitment for Breach of the Writ of Execution.
The defendant intends, &c. that Mr. his late fo-
licitor may (land committed to the prifon of the Fleet for
breach of a writ of execution of an order dated, &c.
and of a report made in this caufe by Mafter dated
the day °f by not paying to the faid defendant
the fum of 1. and by not delivering to the faid defendanr
all deeds, papers, and writings in his the faid cuftody or
power relating to (take the words of the order). Dated, &c]
[Plaintiffs' Motion to amend original Bill and Bill of Revivor by
frikiug out Co-plaintiffs and making them Defendants.
The plaintiffs intend, &c. that they may be at liberty to
amend their original bill and bill of revivor by (hiking out
A. B. and G. D. from being plaintiffs, and making them de-
a fendants,
MOTIONS, [the Forms of.] 469
fendants, without cofts as to the other defendants, amending
the defendants' copies of the bills.]
[Defendant's Notice of Motion for a f par ate Report of Debts.
The defendant intends, &c that Mr. to whom this
caufe ftands referred, may make a feparate report of the debts
cf as are proved before him and dire ft ed to be paid by
the decree made in this caufe. Dated, &c]
[Plaintiffs Notice of Motion to difcharge Order to enlarge Publico'
tion.
The court, &c. that the order obtained by the defendant
dared the day of inftant, for enlarging publica-
tion to the day of may be difefmged, and
that publication may forthwith pafs. Dated, occ]
[Defendants' Motion to difcharge a ne exeat regno.
The court, &c. that the order made in this caufe the
day of foriffuing a writ of ne exeat regno agaml him
until anfwer or further order, and marking the fame for 1.
may be difchargjed. Dited, flee]
[M. B. Thio ne exeat regno was discharged accordingly on
defendants' giving a letter of attorney to plaintiffs to recover
and receive the money due on the bond in queltion and in-
junction on defendants' (hewing caufe diflblved ]
[Plaintiff's Motion for a Commijfion de bene e{Tc after Appear-
ance.
The court, &c. that he may be at liberty to fye out a com-
miffion for the examination ot «s a witnefs for him in
this caufe de bene elTe, and that the defendant's clerk in court
may join and llrike commiffioners' names with the plaintiff's
clerk in court in four days after notice hjeredf, and may be at
liberty to execute the fame on ten days notice to the defen-
dants, or in default thereof that the plaintiff may be at liberty
to fue out fuch commiffion directed to his own commifTioners,
Dated, &c ]
[N. B. The above motion was granted upon an affidavit
that the witnefs was about to fail on a voyage in a few days,
but the ufual time was granted for defendants to join and
(hike, &c and fourteen days notice was ordered to be girea
i,o defendants (as ufual) for executing the commiffion.]
H h 3 [2X-.
47° MOTIONS, [the Forms of.]
[Defendants' Motion that a Sum tnay be paid into the Bank and
laid out in the Pur chafe of three per cent. Annuities, and that
the Majler may make a feparate Report of the Debts and Le-
gacies.
The court, Sec. that the receiver may forthwith pay into
the Bank the fum of 1. the balance in his hands, and
that (he fame, when paid in, may be laid out in the purchafe
of Bank 3I. per cent, confol. annuities, in the name and with the
privity of the Accountant General of this honourable court;
and that the Mailer, Mr. to whom this caufe ftands
referred, may make a feparate report of the debts of
the teitator, which he owed at his death, and of the legacies
given by his will, dated the day of and co-
dicil dated the day of in the decree men-
tioned. Dated, &c]
[Plaintiff's Motion that Depffitions taken againfi A. B. may be
read againfi C. D. at the hearing of the Caufe, fame being at
JJfue.
The court, &c that the depofitions of witnefles taken by
the plaintiff in this caufe againfi the defendant A. B. may be
read at the hearing of this caufe againft the defendant C. D.
the plaintiff having replied to his anfwer and the caufe being
at iffue. Dated, &c]
[Defendants Motion for Stay of Proceedings in Ejetlment.
The court, &c. that all the proceedings in ejeftment brought
upon the demife of the defendant for the recovery of
the premifes fituate in of which a receiver hath been
directed to be appointed by this honourable court may be flayed.
Dated, &c]
[Plaintiff's Motion for a receiver to pay Balance into the Bank.
The court, &c. that the receiver of the rents and
profits of the eftate at in the county of and late
belonging to in queftion in this caufe do in a fort-
night pay into the Bank with the privity of the Accountant
General in f ruft in this caufe the fum of the balance reported
due from the faid by the Mailer's report made in this
caufe the and that the fame, when fo paid into the
Bank, may be laid out in the purchafe of Bank 3 per cent, an-
nuities, in the name and with the privity of the faid Accountant
General
MOTIONS, [the Forms of.] 471
General in rruft in this caufe, fubject to the further order of
this court. Dated, &o]
[Serjeant at Arms* Motion that defendant's Solicitor may pay his
Bill of Fees and Di/burfements.
Take notice that R. J. efq. the Serjeant at Arms attending
the Great Seal of Great Britain, intends, &c that Mr. J. C.
one of the folicitors of this court, may forthwith be directed to
pay the fum of 1. for his bill oi fees and difburfements on
taking the above-named defendant into his cuttody, purfuant
to a warrant figned by the right honourable the Lord High
Chancellor, bearing date the day of together with
the coils of this application.
T. M. Deputy Serjeant at Arms.]
[Notice of Motion to withdraw Replication and amend Bill, &c.
Between N. P. infant by M. E. his")
mother and next friend > plaintiff,
T. P. 3 defendant.
The court will be moved on Thurfday next the day
of inftant, being the general feal after
or fo foon after as counfel can be heard, that the plaintiff may
be at liberty to withdraw the replication and amend the
bill by ftriking out faid M. E. widow as his next friend, and
making her a defendant, and by naming Mr. H. L. of, &c
gent, a relation of the plaintiff and his folicitor in this cauf^ to
be his next friend in the room of the ft id M. E. and by adding
other parties and by making other amendments as the phintiff
(hall be advifed, on payment of 20s. cofts to the prefent de-
fendants. Dated, &c]
Hh 4
C 472 )
CHAPTER THE SIXTY-FOURTH.
References,
REFERENCE is an order of the court, whereby divers
matters, as exceptions, accounts, &c. are referred to a
(Mailer to examine, and make his report therein, to the end that
the court may make an order abfolule, arid determine fuch
matters.
And fometimes Mafters are fmpowered by the order of re-
ference, to determine the matters therein mentioned, as to
tax cofts, and exceptions to anfwers. But reports of the in-
fuffiuency of anfwers may be excepted to for the determina-
tion and opinion of the court
References are generally made to one of the fitting Maf-
ters.
No reference fhall be made of the infufficiency of anfwer
without alledging the fpecial caufes in the exceptions. And
a reference of the ftate of the cafe is but rarely granted except
by confent of the parties, and the fpecial order of the court,
where the court orders the Mafter to tlate fuch a matter of facl:
fpecL'lly to the court.
And no reference fhall be made upon a demurrer or quef-
tion touching the jurifdiclion of the court ; but fuch demurrer,
Sec. fhall be heard and determined by the court.
After examination of witneffes, no reference is to be made
to a Mafter to determine the matter, unlefs by the fpecial or-
der of the court, and by confent of the parties. But a caufe
may by confent be referred to arbitrators, and their arbitration
will be in nature of a report (which arbitration muft be con-
firmed by the court like a report) and fuch arbitration may be
alfo excepted to, and thofe exceptions determined by the
court.
£Wherethe matter in a caufe has gone to reference, the par-
ty cannot except to the award, but it muft come on upon fur-
ther directions (a).]
• Upon hearing caufes, all matters of account and other mat-
ters (except in cafes of very great weight, which are deter-
(a) I Bro, C. C. 398,
mined
OF REFERENCES. 473
ruined by the court) are generally referred to a M after, with
fome directions how to proceed therein, and in making his re-
port. And upon application to the court, by confent of
parties, accounts may be examined into before hearing.
But the common method now is. not to examine to
matter of account, till after hearing, which is to be upon inter-
rogatories before a Mailer, if the wit-nefijss be in town, &c. ;
but if they are not, then by commiflion warranted by an order
(which is obtained as a matter of courfe,) upon the Matter's cer-
tificate of the neceflity of fuch a commifTion : the certificate is
ufually granted on the mere allegation of the parties before the
Matter, that they have material witneffes to examine in the
country. If the Matter refufes to grant fuch certificate,
the pnrtv mult apply by motion to the court on fpecial grounds.
[The old practice to infert in the decree a direction, that the
Mailer is to be armed with power to examine witneffes (which
ilill prevails in the Exchequer, and other courts of equity,) has
been long difufed in Chancery ; by the prefent courfe the Maf-
ter may certify that a commiflion is neceffary, which then iffues
of courfe (£).]
[Atter a decree, if the Matter fee caufe for a commifTion to
examine witnefles in the country, he certifies that it is necef-
fary ; and the depofitions when returned are filed by the fix-
clerk, but depofitions taken before the Matter are kept in their
office (f).]
[After a decree, the Matter may examine witneffes, but
ought not to do fo by his clerk; the fame fub poena iffues, as to
bring them before the examiner, which is the fame as a fub-
poena to anfwer ; but the label expreffes the purpefe ; upon an
examination in the country, the body of the writ expreffes, that
iris to reft if y {d).~\
Generally, where a matter of account is referred, before
you form any charge, you take out a warrant to produce
all books, pnpers, &c. which is ufually ordered by the decree.
It is ufual to underwrite all your warrants, to fhew for what
they are taken out, and upon what to be attended ; as that
the plaintiff has left his charge ; and after the firft warrant, to
Proceed on the plaintiff's charge, 2nd the like; but the firft warrant
is feidom or never attended upon.
[In taxing the cofts arifing to the plaintiff's and defendant's
folicitorson this bufmefs, they are allowed for all office-copies,
and alfo 2s. for each of the warrants, and 2s. for copy and
ft
9 Vef. 36, (d) 3 Vef. 603,
3 Vef, 607.
fervice
474 OF REFERENCES.
fervice for each warrant, and 6s. 8d. for each attendance on a
Matter under a warrant.]
And if the Matter cannot go through with the matter re-
ferred to him upon the fecond warrant, you may t.ike out
a third, fourth, &c. and as many as you pleafe till he
hath.
In proceedings before the Matter upon acounts or taxation
of colts, vouchers are genetally expected ior fiuh things as
do not certainly appear in themfclves, or as a neceffiry confe-
quence of fomc other thing already proved, or certain, or where
there is not a violem prefumprion, &c. Thtrcfore it is ud-
vifeabie to preferve all papers and writings whatsoever r-lating
to the caufe, which, if not admitted by the other fide, mult
be proved, before the Matter can allow them as evidence.
And if either party by his counftl, clerk, or foicitor, ad-
mits a matler of fact, the Matter ought to make an entry
thereof in his minute book, which the party admitting in his.
prefence fubferibes, and this is conclufive to fuch party:
and the other fide fliail not be put to any proof ol that
matter e).
Regularly no perfon is at liberty to object to, or defend, the
proceedings before the Matter upon any account or taxing
cotts, but fuch of the parties as (hull actually pay for an office-
copy ot fuch account, or bill of cods from the Matter.
• In matters of account, where fums are forty fhillings or
tinder, then the party making an affidavit in writing before
the Matter (if the party lives in town) or, if in the country,
(before a Matter extraordinary) that fuch fums have aclualiy
been paid, they will be allowed by the M.ifter on the party's
own oath ; but if fuch fums are abo e forty fhillings, the party
mutt examine witneffes before the Matter, or by commiffion to
prove thofe fums paid, unlcfs the other fide will admit fuch
{urns to be paid.
[If the object of the fuit be* for a diftribution of tettator's
eflate and effects, the ufual advertifements for creditors to
come in and prove their debts before the Matter, may be be-
fpoken of the Matter's clerk, when a copy of the ordering part
of the decree is left at the Mailer's office : which advertifement
mutt be inferted in the London Gazette, and in the newfpa-
pers if required by the Matter •, the fecond advertifement may-
be had about a month or fix weeks after the infer tion of the
fir ft in the Gazette (/).]
(e) Vide Ord. Chan. 254.
(/) Vide 8th Edition of Harrifon, 2d vcl, 99.
[Claims
OF REFERENCES. 475
[Claims of creditors are generally left by their folicitors in
confequence of the above advertifements. The ufual direction
is to take an account, &c. and all the creditors to come before
a Mafter to prove their debts ; which, if thev do, and it is ob-
jected that they are not creditors for valuable confiderations,
that queftion may be entered into there, and come before the
court upon exceptions to the report (#)•]
[If it is neceffary to examine executors touching their receipts
and payments, interrogatories mull be prepared for that pur-
pofe, which need not be ligned by counfel ; but the fame muft
be left with the Mafter to fettle j and warrants rnufl he taken
out for thatpurpofe (h).l
[The interrogitories being fettled, the Mafter's clerk in-
groffes them ; and the Mafter's certificate of having allowed
them fhould be filed at the Report office (*').]
[The Mafter will indulge the defendant with a reafonable
time, for putting in his examination, or an order for a month's
time may be procured on application to the court by motion,
or petition at the Rolls. But after three warrants, and after
the time obtained is expired, you may move the court (upon
an office-copy of the Mafter's certificate that the examination is
not put in 1 that the defendant may put in his examination
within four days, or ftand committed. The order being
ferved, if defendant doth not put in his examination within
the time limited, vou may move (on an office copy of the
Mafter's certificate of defendant's default, and on an affidavit
of fervice of the former order,) for a Serjeant at Arms, who
will take defendant into cuftody, where he mult remain,
until he hath put in his examination, and cleared his con-
tempt (k).]
[Where parties go before the Mafter upon a reference, he
muft receive interrogatories from both, though one of them
fhould not have gone into any proof in the former ftage of the
caufe (/).]
[The examination being prepared muft be figned by coun-
fel, engroffed on parchment, with a 2s. 6d. ltamp on each,
fkin, and fworn before a Mafter. The Mafter's cleric makes
a copy of the examination for plaintiff's folicitor. K the ex-
amination fhould appear infufficient, you may apply to the
court by motion, or to his Honour by petition, praying that
(g) Ibid. 100 et i Vef. 131. (*') Ibid
(//) 8th edit, of Harr. ad vol. Ik) 8th <
99. ' (/) 3 Bro. C. C. 190
(//) 8th edit, of Harr. 2d vol. (k) 8th edit, of Har. 2d vol. 101.
the
476 OF REFERENCES. •
the interrogatories and the examination may be referred to the
Matter (/«)•]
[On three infufficient examinations, you may apply to the
court by motion, that the defendant (land committed («)•]
[Where a party is taken up for not putting in an examination,
he may move to be difcharged on clearing his contempt ().]
The books and papers required mull be left by defendant with
an affidavit of the fame being all that are in his cuftody or
power, or that he ever had ; in default of which you may ap-
ply to the court (on the Matter's certificate) that defendant may,
within four days, leave with the Matter the books and papers
required ; or in default, that he may (land committed (q).']
[Further time for the production may be obtained, if nectf-
fary (r).]
[When the books and papers are brought in, an office-copy
of the affidavit made on leaving them mutt be had, in order to
fee what is left, and that the affidavit is fufficient (s) ]
[The court would not order the Matter to certify he was or
was not fatisfied with the production of papers made by the
defendant (if).]
The charge is taken from the fchedule in defendant's exami-
nation •, a copy of the charge mutt be left with the Matter, and
warrants taken out to proceed thereon («;).]
£On attending the warrants, the evidence in fupport of the
charge is read from the examination.]
When the charge has been allowed, if defendant doth not
bring in his difcharge immediately, a warrant may be taken out
to compel him.
When the difcharge is brought in, take a copy of it and attend
defendant's warrant thereon, when defendant mutt produce be-
fore the Matter vouchers for all payments above 40s. ; if the
adverfe party will not admit fuch fums to have been paid ; if the
fums are 40s. or under, the fame will be allowed by the Maf-
ter on the party's own oath ;#)•]
(m) .8th edit, of Harr. 2d vol. (r) Ibid.
101. ' (sj Ibid.
(«) Ibid. (/) 12 Vef. 391.
(0) Ibid, (iv) 8th edit, of Harr. 2d vol.
(/) Ibid. 102.
(q) Ibid* {x) Ibid. 102=
If
OF REFERENCES. 47;
If the Matter \s directed to enquire of what eftares a teftator
died feifed or poflefled, a ftate of fadts muft be prepared and
left with the Mailer ; and if the fame is difputed, proof in fup-
port thereof muft be read from the pleadings in the caufe, or
from the proceedings before the Mailer, if proof can be collect-
ed from them ; if not, interrogatories muft be exhibited for the
examination of parties in the caufe, or of witnefTes.
[If it is necefTary that the Mafter fhould proceed de die in
diem upon the references, there muft be a previous order that
the Mafter mould be at liberty fo to do. But fuch an order is
not imperative on the Mafter, but fubject to his difcretion (2).]
[If a bill be referred for fcandal and impertinence, and fo re-
ported, and exceptions taken to the report and allowed, the
plaintiff" frull have the cofts of the reference ; but on exceptions
to the Miller's report of irregularity being allowed, he {hall not
have cofts. Ambl. 464 ]
(z) ll Vef. 362, fed vide 5 Vef 423.
( 478 )
CHAPTER THE SIXTY-FIFTH.
Reports and farther Direclions.
AREFORT is a Matter's certificate to the court, how the
fads or matters referred by the court are, or do upon ex-
amination appear unto him, or of fomething which is his duty
to inform the court of.
[If the party, who ought to lay before the Matter the grounds
for his report, neglecls to do it, being properly fummoned, or
if the Matter thinks the matter laid before the court not fuffi-
cient to ground any opinion on, he may, at the requeft of the
other party, report accordingly.]
[Before report, the court refufed to order balance of charges
allowed againft defendant upon account, and the whole alledg-
cd in his difcharge, to be paid into court, upon certificate by
the Matter and the defendant's examination; for there mutt be
a report, in order to take notice of any thing in the Matter's
office (a).]
The Matter's report, if not excepted to, mutt be taken to
be true; and in cafe of exception to faft certified, the proof
lies on the party ; and he mutt at lead falfify it by affidavit ; for
though there is no reafon that the Matter's report fhould be
arbitrary and conclufive upon any one, yet it fhall be prefumed.
prima facie to be true, and turn it on the other fide to fhew the
contrary (b).~\
No matter fhall, on the importunity of counfel, or any other
perfon, make a fpecial report, unlefs required by the court to
do fo ; or that his own judgment, with refpecl: to difficulty,
leads him thereto [c).~]
[Upon a decree for an account, the court'will order the Maf-
ter to make a feparate report, but on payment of the cofts by
the party applying for it. Stone v. Cbear/y, iStb Jan. 1784.
Qu^. Whether a feparate report be not commonly granted for afk-
ing, at the expence of the party applying ; but the expence paid
by the party is only 251. to the Matter, although the other par-
ties may, in confequence of fuch feparate report, be put to very
confiderable expence.]
(a). 1 Vef. J. 69. (c) Ord. Chan. 144.
(£) 3 P. W. 140, 142.
Reports
OF REPORTS. 47 j
Reports mud: be drawn as fuccinctly as may be, (referving
the matter clearly for the judg rent of the court) and without
re ital o f the feveral points of the order of reference, or the
debates of counfel ; uniefs in cafes where the Mailers are
doubtful, they briefly reprefent the reafons inducing them fo
to be. Ord. Cha. 144. [The Matters ought not to ftate
evidence in their reporrs but only facts as in a fpeciai verdict.
D. of Marlbrd v. Wheat, 1 Atk". 454 ]
Where a certain time was prefixed for making a report, and
it was made after that time, it was difailowed (d). And gene-
rally, if the court by an order prefix a time, and the Matter
makes his report after that time, it is irregular.
In proceedings before the Matter, when he hath fully heard
both parties, he prepare? a draught of his report, and at the
r.quett of cither party iffues a warrant, that the parties or
fome of them do again attend him; who have liberty to pe-
rufe fuch report, and take copies thereof, and after that, ei-
ther pirty may again attend the Matter, and take out a [four
day] warrant, to fettle the report ;- which the Matter accord-
ingly will do, uniefs either party at that time bring in objec-
tions in writing to the draught of fuch report and take out a
warrant, giving notice that he h?,s brought in objections to the
draught of fuch report; and then the adverfe party takes a co-
py of fuch objections from the Matter; and either party may-
take out o:ie or more warrants to be heard thereupon, and the
Matter allows or difallows the o jections, as he lees caufe,
and fettles his report. [The Matter having fettled his report,
either p irty may take out a warrant for the other party to at-
tend the fining of the report, but the Matter is juttified in
refufing evidences alter he has fettled his report. 7 Vcf.
587. Tnough after the Matter hath made his report, ei-
ther party may take exceptions to it, which mutt be ar-
gued in open court.] But note ; The party cannot file ex-
ceptions to any report alter the hearing, uniefs he firtt brin?
in objections to the draught of the report, and be heard be-
fore the Matter thereupon ; otherwife fuch party gives the
court unneceffiry trouble, and creates unneceflary exptnee to
the other party in bringing exceptions to be determined by the
court, which probably might have been determined before
the Matter, and allowed by him, on arguing before him the
objections to the draught of his report; and very great incon-
veniences may arife, if this rule is not adhered to.
Exceptions will lie to the Matter's report in general terms,
[d) Vide I Cha. Ca. 179.
that
480 OF REPORTS.
that he had reported the examination fufficient, whereas he
ought to have reported it infufficient. But fuch exception is
moft inconvenient, and to be difcouraged ; therefore his Honour,
the exceptions being overruled, ordered cofts beyond the depo-
fit (,).
And thefe exceptions muft be filed with the Regifter ; at
which time you pay him five pounds in order to anfwer the
cofts in cafe it is for delay or other frivolous matter, or your
exceptions are overruled, and then you petition my Lord
Chancellor fcr a day to fet them down, of which notice muft
be given to the other fide, by ferving a copy of the order on
the clerk in court ; and before the day of hearing, you muft
make his Lordfhip a copy of the report and exceptions,
which you leave with my Lord's gentleman with five {hil-
lings.
And upon arguing the exceptions no* evidence will be ad-
mitted in fupport thereof, but what was laid before the Maf-
ter upon the objections (f).
Where a defective account is carried in before the Mafler,
you fhould object to fuch defects, and that the" fame be made
perfect before him ; fcr the court will not afterwards make an
order -thereupon.
"When the court by fpecial order fhall admit exceptions to
any report, whereby money is reported due, after the time
fuch exceptions fhould have been regularly filed ; no proceed-
ings on fuch report fhall be flayed without giving fecurity to
pay the money, or bringing it into court, unlets the court
fhall provide otherwife by particular order ({*).
Reports and certificates are to be filed with the Regifter in
four days after figning ; and he is to mark on the back the day
of their receipt and fiiing. And all proceedings grounded on
reports not fo filed fhall be void; and the Regifter's certifi-
cate of fuch rreglecl fhall be good caufe to difciiarge fuch pro-
ceedings, and for colis according to the difcretion of the
court {h). But this rule of filing reports and certificates in
four days is almoft difufed, and they are frequently filed after-
wards. It is fufficient if a Matter's report is filed before any
(e) 12 Vef. 1 66. ed of in evidence before him.
* Upon argument in court, Mich. 1766.
whether papers were given in evi- {J) Primrofe v. Bromley, Mi
dence before the Mailer, Lord chaelmas Vacation 1739.
Chancellor Camden intimated that (g) Ord Chan. 203.
he would make an order for the (/j) Ord. Chan. 237.
Mafler to mark all papers allovv-
proceeding*
OF REPORTS. 41 .
proceedings had thereon, though not within four days after it
was made (/).]
On a report to ground a decree after it is figned by the Maf-
ter, no order can oe had to confirm it, till it r>e filed with the
Rcgifter, and then an order is obtained to confirm the report,
unlefs * the adverfe party being perfo.ially ferved with fuch or-
der, nhall, in eight days after fuch fervice, lliew caufe to the con-
traiy ; and then the o f her party has eight days from the fer-
vice to excepr to it : but if the report be not to ground a decree,
it need6 no confirmation, but procefs may be taken out to en-
force the performance, as to put in a better anfwer, C2V.
■without farther motion ; unlefs the adverfe party do in due
time obtain fome order of court to controul or fufpend the
fame. And fuch order of controul muff be obtained within
eight days after notice of fuch report being filed, if notice be
given in Term, or during the General Seals after ; or within
four days after the next term it the notice be given a f ter the
Term and General Seals -, but though the eight days be pair., yet
if it be but lately, the court will, upon motion, order excep-
tions to be received, and the party to procure a report in a
ihort time. But no report after hearing is valid, unlefs it be
confirmed by order of the court ; which is confirmed by order
unlefs caufe as before: and if no caulc is fhew'n again ft fuch
report in ei) Eyles v. Ward, 2 P. W. except to report, nQtwithftand-
516. ing his motion Mofeley, 305.
* If Plaintiff moves to con- pi. 167. Practical Regifter 323
firm report ni/t, and defendant U) 4 Vef 017.
mews for .caul'e, that he has ta- (05 ^df. 4.24.
Jcen exceptions, plaintiff too may
Vol., I, I i vhere
4 82 OF REPORTS.
where the defendants are numerous and live in different
counties at a great diftance from one another, on affidavit
thereof, the court will make fervice on the clerks in court
good. [Where the parties in the caufe are fix or more, the
fame order may be obtained, i Turner. C. P. 130.] For
an affidavit where the defendants live in different counties,
and a p tition that fervice on the clerks in court may be good,
vide under the title of Affidavits and Petitions.
[If any of the parties are out of the jurifdiction of the
court, or cannot be found to be ferved with the order, upon
affidavit of the fa£t, an order may be obtained, that fervice
on the clerk in court for thefe parties fhall be deemed good fer-
vice.]
[Service on the clerks in court of the defendants was held
good fervice, in order to confirm the Mailer's report, on motion,
and affidavit that fome lived in the Ealt and Weft Indies, and
others in different parts of the country, though there were only
five defendants. {m).~\
Upon a difmiffion with cofts to be taxed by a Matter, there
needs no confirmation of his report, but afubpeena for cofts,
after the report filed, may be forthwith taken out : and if an
anfwer be reported infufficient, one fubpeena for the cofts, and
another fubpoena to make a better anfwer returnable immediate,
may be iffued immediately; that for the cofts muft be ferved
on the party perfonally ; and that to make a better anfwer
may be ferved on the party's clerk in court.
A report being filed, the adverfe party may give an autho-
rity to his counfel to confent that fuch report be abfolutely
confirmed : and fuch counfel consenting, the court will fo
order it : but without fuch confent, the court will only order it
to be confirmed, unlefs caufe as before. And if, after a re-
port is confirmed «//?, a party obtains leave for the Mafter to
review it (which is very rarely granted) he muft pay fuch
cofts as the court fhall think fit.
[Upon a reference to a Mafter as to the facl of a perfon's
death, the report only ftating the circumftances-, viz. ab-
sence abroad 14 years, without any account of him, but not
drawing the conclufion, it was referred back to the Mafter to
ftate whether he was dead at the lime, when adminiitration
was granted, efpecially as two years had elapfed fince the re-
port. («).]
The court will but very feldom, and that in fpecial cafes,
ftir a report after it is confirmed, becaufe the parties had fuf-
(m) 2 Vef. J, 417 («) 6 Vef.605.
ficient
OF REPORTS. 483
ficient time to except to it ; much lefs will the court alter it
without extraordinary and fufficient reafons, if it was con-
firmed by confent of parties.
(A report of an anfwer being infufficient need not be con-
firmed ; an! fuch a report may be excepted to any time be-
fore the defendant obtains an order fortime, to put in a fur-
ther anfwer).
[Where it is referred to a Matter to fee whether the exami-
nation was or was not fufficient, the report of the Matter is
not final, but may be excepted to. (0).
(A report, t ).]
[A Matter's report, of a proper perfon to be guardian of an
infant, cannot be excepted to, but caufe may be (hewn againft
it on the petition to confirm it (q)~\
[On a reference to fee whether the whole or any part of a
fupplemental bill, brought in the name of infants, be for their
benefit, the Matter's report cannot be excepted to : admitted
in Wkitakerv. Whltaker before Lord Thurlow, 7th Dec. 1786:
and on an application to confirm the report, the Lord Chan-
cellor difallowed of part and confirmed part.]
A report made by a Mailer is as a judgment of the court.
I: is not ufual to confirm reports of receivers accounts (r).
You cannot bring on the caufe for the further directions of
the court, or move, on a Matter's report, till it is con-
firmed (s).
Where the Matter reports any irregularity, there may be a
reference, but no exceptions 5 for thefe matters ufed to be
decided by the fix clerks ; and lefs credit is not to be given the
Matter.
On filing the report and 5I. paid in, on certificate from the
Regifter, the court, on motion, will order to flay proceedings
till the hearing thereof.
[For a report before hearing you pay the Matter 15s. and
after hearing il. 5s. Objections to interrogatories fettled by the
Matter mutt be taken by exceptions, not by petition (f).]
(0) 2 Dick. 732. (>•) 2 P. W. 661.
(p) I Bio. C. C. 577, (s) Mof. 71.
(gjCranwell v. Roper 26, Mav, (/) 6 Vef. J. 459.
1785^
I i 2 Exceptions
4B4 OF REPORTS.
Exceptions to a Majter's Report.
In Chancery Between, &c.
Exceptions taken by, &c. to the report made the
day of by Mr. H., one of the Mafters of this court,
concerning the infufficiency of the defendant's anfwer.
The faid exceptant faith, that the faid Mafter having made
his report againft the defendant's anfwer as inefficient, in that
the faid defendant hath not in his faid anfwer fet forth, &c.
and whether he did not, &c. required by the plaintiff's bill.
Now he excepteth againft the faid report, forafmuch as the
faid anfwer is full and fufficient, notwithftanding the faid
Matter's report, there being no occafion, according to the
pra&ice of the court, to fet forth the fame in the faid anfwer,
as this exceptant is of opinion, and fubmits to the judgment
of the court.
For which rcafon this exceptant prays, that the report may
be fet afide, and the anfwer adjudged fufficient.
A Report of the Arrears of an Annuity.
n\ f A. B. plaintiff,
Between j Q D esecutor of E# F H al > defendants.
March 3, 1743.
In purfuance of the order made on the hearing of this caufe,
bearing date the tenth day of December laft, I have been at*
tended by the folicitor for the plaintiff, and the defendant
C. D. (no perfon attending for the other defendants, although
duly fummoned, as by oath made before me appeared,) and I
have, in the prefence of the parties fo attending me, proceeded
to take an accouut of what was in arrear for the annuity, or
yearly rent charge, of twenty pounds a year in queftion in this
caufe, during the time the faid E. F. the teftator, was in
poffeffion of the eftate mentioned in the pleadings of this
caufe j and I do find, that in the month of October 1734,
G. H., brother of J. K., who was the eldeft fon of L. M. ne-
phew of N. O. in the pleadings of this caufe named, died
without iffue male ; and that on the death of the faid G. H.,
the faid annuity of twenty pounds a year vefted in the faid
plaintiff A. B. by the will and codicil of the faid N. O. And I
do find, that on the death of the faid G. H. the faid teftator
E. F. was then in the full and abfolute poffeffion of the trull
eftate of the faid N. O. charged therewith, and fo continued
till the month of April 1738. And I further find, that on
the firft day of February 1734, there became due to the faid
plaintiff A, B. for half a year of the faid annuity, the fum of
iol.
OF REPORTS. 485
lol. and that during the time the faid teftator continued in the
poffoffion of the faid eftate as aforefaid, the faid plaintiff A. B.
became intitled to three years more of the faid annuity, viz.
for one year due the firft of February 1735, the fum of 20L,
for another year due the firft of February 1736, the fum of
20I. and for another year due the firft of February 1737, tne
fum of 20I. which together with the Lid fum of iol. rmike
together the fum of 70I. ; but it being directed, by the faid
order, that I fhould deduct the taxes out of the faid annuity
according to the rate the lands, whereout the fame doth iffue,
have paid to the land-tax; I find, that the faid lands have been
rated but as a moiety of the land-tax as allowed by the acts of
Parliament for thefe years : I have, therefore, in the fchedule
to this my report annexed, ftated the rules of the land-tax as
allowed bv Parliament, for the faid years, and what is to be
deducted out of the faid annuity according as the faid lands
were yearly rated, and the fame in the whole amounts to 61.
which I have deducted from the faid fum of 70I., whereby the
fame is reduced to the fum of 64I. for which fum I have, ac-
cording to the directions of the laid order, computed intereft
from the filing of the plaintiff's bill, which was on the fourth
of November 1742, to the twenty-third day of March inftant,
being one year, four months and nineteen days, after the rate
of 4I. per cent, per annum, and the fame amounts- to the fum
of 3I. 12s. o|d. which being added to the faid fum of 64I.
make together the fum of 67I. 12s. ofd. and which faid fum
of 67I. 1 2s. o|d. I do appoint the faid defendant CD. to
pay unto the plaintiff A. B. on the faid twenty-third day of
March inftant, at the chapel of the Rolls in Chancery- Lane,
between the hours of ten and twelve of the clock in the fore-
noon of the fame day. All which I humbly certify and fu^r;' ^
mit to the judgment of this honourable court.
T.W.
1. s. d.
The Schedule to which my Report refers.
Firft out of the half year's annuity due the"]
firft of February -734, which that year was 2s. .
}u the pound, to be deducted one moiety of the r
land-tax, which amounts to J
Alfo out of one year's annuity due the firft day"]
of February 1735, which that year was 3s. in the '•
pound, to be deducted one moiety of the land- \
tax, which amounts to J
I i 3 Alfo
CO
I 10 00
486 OF REPORTS.
Alfo out of one year's annuity due the firft of
February 1736, which that year was 4s. in the
pound, to be deducted one moiety of the land-
tax, which amounts to
Alfo out of one year's annuity due the firft of
February 1737, which that year was 4s. in the
pound, to be deducted one moiety of the land-
tax, which amounts to
2 00 CO
2 00 00
06 .: o og
Note. Upon having an order to appoint a receiver, you
take out a warrant, underwriting that fuch a one, mentioning
where he lives, is to be approved of by the Matter to be re-
ceiver, and that fuch, and fuch a one, naming two perfons,
mentioning where they live, are to be his fecurity •, for all
receivers mud enter into a recognizance with two fecurities
before the Mafler to account regularly.
If a mortgagor is apprehenfive that the eftate is worth more
than the money reported due, and wants time to raife money
to pay off the mortgage, the court, upon application, and an
affidavit of the value, will ufually enlarge the time to redeem
tor fix months, and refer it back to the Mailer to tax the fub-
fequcnt cqfts, and carry on the fubfequent account : And upon
further application wiil enlarge the time for three months,
which upon extraordinary occafions the court will order pe-
remptory, and for the mortgagor to fign the Regifter's book
that he will not crave any further time.
But in thefe cafes the court has a difcretionary power, and
always a£l according to the circumftances of the cafe ; for if
the eftate is worth a good deal more than the money reported
due, thev will not let a mortgagor be foreclofed immediately,
but give him all reafonable opportunities to redeem, where it is
not an apparent intent of delay. And even after the time ap-
pointed for payment, the court will, at any time before the
mortgagee has obtained an order to foreclofe, give the mort-
gagor a time -, but all applications for time to redeem fhould
regularly be made before the time appointed is expired.
But if. a mortgagor cannot make more of his eftate, but will
let it go, the mortgagee mud after the expiration of the fix
months apply to the court for an abfolute order to redeem,
which mull be upon an affidavit of the mortgagee's attending
at the time and place mentioned in the report, and at the fame
tjme producing and reading to the court the decree, and all
pro-
OF REPORTS. 487
proceedings thereupon ; and note, that this is a motion of
courfe.
For the form of this affidavit, vide p.
None but the mortgagee, or the peifon appointed by the
report, can receive the money reported due, unlefs they be
appointed by letter of attorney under his hand and leal. And
then the perfon appointed, if the money is not paid, makes
an affidavit thereof, and then you proceed as before.
The Form of a Letter cf Attorney to receive Money reported due at
the Time appointed by a Majlers Report.
To all to whom theft prefents (hall come, A. B. of, &c
fendeth greeting. Whereas T. W. Efq. one of the Matters
of the high court of Chancery, by his report bearing date on
or about the third day of March la. ft pad, and made in a cer-
tain caufe depending in the faid court, wherein the faid A. B.
is plaintiff, and C. D. is defendant, certified, that in purfuance
of an order made on the hearing of the faid cmfe, bearing
date the nineteenth day of February 1742, he had been at-
tended by the folicitors for all parties, and in their prefence
had confidered of the matters thereby to him referred, and had
proceeded to take an account of what was due to the plaintiff
for principal and intereft, on his mortgage on the premiffes in
queition in the faid caufe, and to tax him his cofts of the faid
fuit} and found that the fum of 814I. 16s. yd. would be due
to the plaintiff for principal, intcrefts, and colls on his faid
mortgage on the third day of September next ; and which faid
fum of 814I. 16s. pd. the faid Mafter thereby appointed the
faid defendant to pay to the faid plaintiff on the faid third day
of September next at the chapel of the Rolls in Chancery-Lane,
London, between the hours of eleven and twelve of the clock
in the forenoon of the fame day : As in and by the faid in
part recited report, relation being thereunto had, may more
fully and at large appear: Now know ye, that I the faid A. B.
have made, ordained, conftituted and appointed, and by thefe
prefents, do make, ordain, conftitute and appoint E. F. of,
&c. and G. H. of, &c. my true and lawful attorney, and at-
tornies, jointly and feverally, hereby giving and granting full
power and authority, for them my faid attornies, or either of
of them, to attend at the faid Chapel of the Rolls according to
the faid report, and for me, and in my name, and to my ufe,
to afk, demand, and receive of and from the faid C. D. the
faid fum of 814I. 16s. 96. And upon the payment of the faid
turn of 814I iCs- Qd. cr any part thereof, receipts, acquit-
l v 4 tanccs,
4 83 FURTHER DIRECTIONS.
tances, and other proper difrharges in the name of me the faid
A. B. to make and give for t he Lme, and to deliver, and
furrender up the i' id mortgage fecurity, and all other my fe-
curity and fecurities for the fame, and generally to do and
tranfaft any other a£t, matter or thing, for the obtaining and
receiving the farm fum of 8 4I. 1 6s. pd. to the ufe of me the
faid A. B. as fill / as I myfelf cou'd or might do if I were per-
fonally prefent. I the faid A B. ratifying and confirming, and
agreeing to ratify and confirm all and whatfoever my faid at-
rornies or either of them jointly or feverally fhall lawfully do,
or caufe to be done, in and about the premiffe*, by virtue of
thefe prefents. In witnefs whereof, 1 the faid A. B. have here-
unto Sfet my hand and feal this day of ill the
eighth year of the reign of our fovereign Lord George the third
by the grace of God, of Great Britain, France, and Ireland,
King, defender of the faith, and fo forth, and in the year of
our Lord 1767.
A.B,
Sealed and delivered (being firft
duly flampt) in the prefenceof
[In order to fet down the caufe for further direfiions, after the
report is confirmed, a petition mutt be prefented either to the
Lord Chancellor, or to the Mafter of Rolls. With the peti-
tion fhould be left a copy of the decree and report. When
the petition is anfwered, get the order drawn up and entered,
and ierve it on the clerks in court for the adverfe parties. Get
the caufe entered in the proper caufe book, and make an af-
fidavit of the fervice of the order, and procure an office copy
to read on the hearing, in cafe the adverfe party fhould not
appear.]
[Petition to fet down caufe for further directions, or fuch
farther order, as the court fhall think fit, was difmiffed, though
the parties could not proceed; an enquiry before the Mafter
being rendered ufelefs by the event of a verdict upon iffue di-
rected, and farther directions having been referved till after
trial and report. 1 Vef> ]\m. 153.]
[Upon further directions the court may add to the de-
cree, and may therefore give intereft, though the queftion
of intereft was not referved. Ambler 584. 2 VeJ. jum
l) before Lord Chancellor Eldon, his Lordfhip, for the
exprefs purpofe of putting an end to this prevailing idea, object-
ed to open the biddings, unlefs fomething more than iol. per
cent, was offered. In fome cafes, however, the court will open
biddings upon an advance of lefs than iol. per cent. ; as of
500I. upon 5020I (*'), and of 200I. upon 3500I. (k). The refuh
therefore is this, that although the Court may be induced in
iome cafes to open the biddings at an advance of lefs than iol.
percent, it will not do it, as a matter of courfe, at that fum. ]
[It is neceffhry likewife, that the perfon opening the bid-
dings, ftiould pay down a fum by way of depofit ; the court
has required a fum in fome cafes equal to (/), in fome exceed-
ing (/»), the advance. In other inltances, it has been fatif-
c) Ibid. before Lord Eldon, in Trinitv
d) 1 Vef. J. 94. Term 1805.
e) 2 Vef. J. 335. (,') 1 Vef. J. 453.
(/) 8th edit, of Harr. 2d vol. U) 5 Vef. 148.
104. (/) Vide cafe cited in 6 Vef,
(s) 4 Vef. 700. 513.
J/j) 7 Vef. 420, et feveral cafes \m) 7 Vef. 420
4 fied
492 SALES BEFORE THE MASTER.
fied with a part, infilling, however, upon a considerable pro-
portion of fuch fum («)•]
[But fome depofit mull be made, as it affords the only hold
which the court has upon the perfon applying to open the
biddings; the neceffify of a depofit therefore will not be dif-
penfed with, becaufe the purpofes for which the fale was di-
rected would be anfwered by the purchafe of other lots, ex-,
clufiveof that which was the fubject of the application (o).]
[It is alfo one of the terms on which the biddings are opened
that the party making the application fhould pay the purchafer
his exp*. nces incurred by the former biddings. But the court
will not give any directions what particular expence fhould be
allowed, leaving it to the Mafter under the general directions
to make the allowance according to the pra&ice (/>).]
[If it happens that the perfon, who opens the biddings, is out -
bid at the re-fale, and therefore does not become the pur-
chafer, though his interference has benefited the eftate, he
will not be entitled, upon his depofit being returned to him,
to his cofts (q) *, unlefs he has opened the biddings, not for his
own benefit, but for the benefit of all parties concerned (r).J
[It feems to have been confi.iered by Lord Rofslyn, in Som-
mer v. Charlton (s), to be an objection to open biddings, that the
perfon on whofe behalf the motion was made, had attended
the fale ; for otherwife a perfon might be encouraged to lie by s
fpeculating jupon the event. But in a fubfequent cafe (t) %
Lord Eldon permitted biddings t© be opened upon an advance
of 400I. upon 1 cool, and on 70QI. being paid in, notwith-
standing that objection ; his Lordfhip^ faying that he had men-
tioned the cafe of Sommer v. Charlton to Lord Rofslyn, who
did not confider himfelf to lay down that as a general rule.]
[Neither is it an objection to open biddings, that they have
been opened before in the fame lot («).]
[A perfon may be fubftituted for the purchafer under a de-
cree without the neceffity of an application to the court for a
re-fale, upon the latter confenting to its being done, and the
former paying the neceffary depofit into court, and on ai>
affidavit that there was no under-hand bargain between
them (#).]
[It is a general rule, that the application to open biddings.
fn ) Vide'the cafe cited in 4 Bro. (/•) 9 Vef. 348.
C. C 173. (-0 Cited in 5 Vef. 655.
(0) 6 Vef. 5 1 3. (f) 6 Vef. 117.
(/) 2 Vef. J. 286. (a) 3 Bro. C. C. 475.
L) 8 Vef. 214. (r) 6 Vef, 515.
mufi
SALES BEFORE THE MASTER 493
Miuft be made before the Matter's report is confirmed. Under
fpecial circumftances, however, the court will difpenfe with
that rule. Thus (v), in a bill by legatees, and a decree for
an account of the perfonal eftate, and a fale of the real eft a e,
if the former fhould be deficient ; upon the latter being fold
without any previous account of the perfonal eftate, and with-
out any application on the part of creditors, and upon great
inadequacy of price, the Lords Commiffioners were of opinion,
that the biddings ought to be opened, though the Matter's re-
port had been confirmed ; but as the court were not agreed up-
on the form cf the order, the motion ftood over. It is ftated,
however, in a fubfequent cafe (2), that the above order by the
Lords Commiilioners was afterwards difcharged by Lord i'hur-
low. So (a), upon an advance of 4000I. upon the fum of
t 5>3°®1-> an ^ it appearing that the perfon principally interefted
in the eftate had been deceived by his agents, whom he had
employed to attend the fale, and that he was at the time con-
fined for a debt in the Fleet, the court, though after the con-
firmation of the Mafter'3 report, opened the biddings ; but
upon the depofit of the whole fum.]
[But it feems that the court will not do this upon the mere
grounds of advance of price; thus {b) r though the advance of-
fered was one feventh of the whole price, the court refufed the
application, as the report had been confirmed.}
[Neither will it be fuffkient to induce the court to grant fuch
application after the report has been confirmed, that the delay
of the party in not making the application fooner, arofe from
the miltaken idea that another perfon had given notice of a
motion for the fame purpofe ; Lord Eldon obferving, that after
a purchafer had confirmed his report, unlefs fome particular
principle arofe out of his character, as connected with the
ownerfhip of the eftate, or fome truft or confidence, or his own
conduct in obtaining his report, the bidding ought not to be
opened (r).]
(y) I Ero. C. C.2&7. (b) 3 Bro C. C. 473. 3 Anstr.
(*) 4. Bro. C. C. 17^ 656. Sed vide 5 YeCSG.
(a) 4. Bro. C. C. n. (OllVef.57.
( 494 )
CHAPTER THE SIXTY-SEVENTH.
Certificates*
A CERTIFICATE generally is a matter in writing under
the hand or hands of Mailers, Officers, or Minifters of
the court, informing the court of fomething under their re-
fpective administrations or cognizance that is done, not done,
or mifdone, which an order or mandate of the courts or
their duty, or the reafon of the thing, requires them to ac-
quaint the court with.
Thefe certificates the court gives much * credit to, efpe-
cially from th? Mafters and Handing Officers of the court.
In the caption of anfwers taken in the country, which is a
certificate of the commiffioners, the town and country where,
and the day and year when, the anfwer is fworn by the de-
fendant, ought to be inferted, otherwife the anfwer may be
fupprefled : So alfo in the caption of affidavits ■, depo/itiotis, &c.
The certificate of commiffioners, of any thing touching ths
execution of their commiffion, need not be filed before admit-
ted to be read, or made ufe of (a).
As touching all matters relating to irregularities in mere
matters of practice of the court ; the court, on motion or pe-
tition, ufually orders fuch matters to be referred to the two
fenior-Six-clerks, not in the caufe, to certify whether fuc'i
proceedings or procefs be regular or not; and according to
their certificate the parties are to abide ; and fuch certificate
cannot be excepted to, without particular leave of the court,
which is very rarely granted.
After an anfwer is filed, and no proceedings in the caufe
for three Terms after, you then acquaint the plaintiff's clerk
in court, ufually by leaving a note in writing with him (which is
a mere matter of favour, and not ftriclly obligatory,) that you
mud difmifs the bill for want of profecution : And if he don't
* The Mailer certified that the Maier's certificate, Sel. Caf.
writings were not delivered in ; in Chanc. 5.
the clerk offered to prove they (a) Quae et vide Wy. Pratt.
were delivered in, but the court Reg. 101
would not fuffer averment againft
file
CERTIFICATES. 495
file a replication to the defendant's anfwer in two or three days
after fuch notice given, which is the ufual way to prevent a
bill from being difmiffed, you then get the Six-clerk's certifi-
cate the day the defendant's anfwer was filed, fince which the
plaintiff hath not replied, nor further proceeded in the caufe,
as appears by his book. And upon this certificate, you then
get counfel to move to difmifs the plaintiff's bill with cofts to
be taxed by a Mafter, which is a motion of courfe ; and having
drawn up and entered your order, you carry it to the Matter
to whom it is referred, with your bill of cofts, which you
leave with the Matter, who gives you a warrant to ferve on
the plaintiff's clerk ; and underneath the warrant write, " the
defendant bath left a bill of cojh f and on the return of the
faid warrant, you take out a fecond warrant, and fometimes
a third ; and if no one attends on the other fide, upon producing
the warrants, and making oath of the fervice thereof on the
plaintiff's clerk before the Mafter, he taxes the cofts ex parte,
and figns a report for the fime, which you muft file, and take
out afubpoena for thefe cofts from the fubpeena office ; which fub-
peena muft be ferved p<-rfonally on the plaintiff, and the
cofts demanded of him, which if he refufes to pay, you make
an affidavit of the fervice of the fubpcena> and of your de-
manding the furn of money of him, and his refufal to pay : And
upon filing the affidavit, and having an office-copy thereof,
you carry it to the defendant's clerk in court, and he makes you
an attachment directed to the fhenff, to arreft the plaintiff fcr
non-payment of thofe cofts; which being done, and the plain-
tiff refufmg to pay thofe cofts, and alfo the cofts of the arreft
(which is twelve {hillings and fix pence) he is carried to the
county goal, where he muft lie till he has paid thofe coft3 : But
if the plaintiff abfeonds, and cannot be found perfonally to be
ferved with iuch fubpeena, upon affidavit thereof, the court will,
upon motion or petition, order that fervice of fuch fubpeena on
the plaintiff's clerk in court fhall be deemed good fervice ; and
upon fuch fubpeena being ferved on the plaintiff's clerk in court,
and the cofts demanded of him, and his refufal to pay the cofts,
then, upon making and filing your affidavit thereof, an attach-
ment is made againft the plaintiff for thofe cofts, as before ;
and upon a return by the fheriff of a non eji inventus againft the
plaintiff, a proclamation iffues againft the plaintiff; and upon
the like return thereof, a commiffion of rebellion directed to
commiffioners ; and upon their like return, an order for a Ser-
jeant at Arms iffues againft the phintiff ; and upon his like return,
and certificate, youthen obtain an order for ajequeftration, direct-
ed to commiffioners to fequefter the plaintiff's real and perfonal
eftate,
49^ CERTIFICATES.
eftare, until he (hall have paid thofe cods, and the court mak*
other order to the contrary ; and the plaintiff cannot difcharge
the fequejlrat'ion until he has paid not only thofe colls, but
alfo all the fubfequent cods to be taxed by a M after.
Note ; When procefs is thus carried on by way of non ejl
inventus^ there mud be fifteen days between the tefie and re-
turn of each procefs ; but if you arreft the plaintiff on fuch
procefs, there is no occafion for fifteen days between the tejle
and return : And this rule holds good of all fuch procefs that
is made againft the defendant for want of his anfwer.
If the plaintiff files a replication to the defendant's anfwer,
and proceeds no further in three Terms after the replication
filed, you then get the Six clerk's certificate thereof, and give
notice in writing to the plaintiff's clerk in court to move that
the plaintiff's bill may be difmiffed out of court, with cofts.
to be taxed by a Mafter : And upon making an affidavit of
ferving fuch notice, and producing fuch certificate, your coun-
fel moves to difmifs the bill with coifs, to be taxed by a Maf-
ter ; which is always granted* unlefs the plaintiff's counfel
(hews fome very urgent and fufficient reafon to the contrary ;
and in fuch cafe the court will order the plaintiff to fpeed his
caufe to a hearing.
As foon as publication is paffed in the caufe, the plaintiff
gets his Six-clerk's certificate, that the pleadings in the caufe
are regularly filed, and publication paffed, and he has feen
the depofitions ; and upon fuch certificate you get the caufe
fet down in court, or at the Rolls either by the Six-clerk, or
by one of the Secretaries, or by the Regifter ; and the Re-
mitter will give you a certificate thereof, which certificate
and praecipe for a fubpeena you carry to the fubpeena office, where
they will make you out a fubposna to hfAX judgment^ which you
mull ferve on the defendant (if he lives above ten miles in
the country) fourteen days before the return thereof; and ten
days on the defendant before the return, if he lives in London^
or within ten miles thereof; unlefs it be between Eajler and,
Trinity Terms, when by reafon of the fhortnefs of that va-
cation, ten days is held good for the fervice of fuch fubposna
on the former, and eight days on the latter, between fuch
fervice and return.
Where a matter of account or other thing is referred to
the Mafter, and you think it will be neceffary, and indeed upon
matters of account it is ufual to let alone examining the
witneffes till after the hearing, and it comes before the Maf-
ter, to examine witneffes with regard thereto, the Mafter upon
1 4 reeuieft
CERTIFICATES, [the Forms of.] 497
requeft will grant a certificate for a commiflion, uoon which
you apply fo the court for the fame.
Or where interrogator! & are exhibited for examination of
any of the pnties, or warrants are taken out to produce or do
any other matter ordered by the court, who i\ t md out till ilic
expiration of the third warrant, or where any witnefs, upon
being fcrved with a fubpoeha to teftify, dos not attend and put
in his examination, the Mafler or examiner will grain a cer-
tificate, and thereupon yoa may jpply to the court that they
may (land committed for a contempt.
A Certificate of a Defendant's not attending to be examined.
r, f A. B. id lintifF.
Between ■{ n r» t f i •
£ L. U. defendant.
Upon the day of interrogatories were ex-
hibited in my oflice, by the complainant in this caufe for the
examination of the defendant, touching a contempt fuppofed.
to be by him committed for breach of an injunction obtained
in this caufe, fince which time the faid defendant hath not
attended to be examined thereupon. Dated this dav
of 1744.
' E.N.
A Six-Clerk* s Certificate of an An fiver being fled, and no Proceed-
ings fince, in order to difnijs a Bill.
t, . f A. B. plaintiff",
Between i ,- t» j r j \.
[ C. U. defendant.
Thefe are to certify, that the defendant's anfwer to the
plaintiff's bill was filed the day of 1 743 , fince
which there has been no further proceeding, as appears by
my book j this being the day of j 744.
A Six-ClerFs Certificate of no Proceeding after Replication.
Between I A " B " P lalntifF >
(_C. D. defendant.
Thefe are to certify, that the defendant's anfwer to the
pVmtifFs bill was filed the day of j 7 42, to
which the plaintiff replied the day of ' 7- 3»
fince which there hath been no further proceeding, as p-
pears by my book dated this day of i?44-
Vol. I. K- k A Six-
498 CERTIFICATES, [the Forms of.]
A Six Clerk's Certificate of Pleadings being jiled in order to fet
doiv?i a Caufe for hearing.
,, t f A. B. plaintiff,
Between \ c^ r\ \ c j \
£C D. defendant.
Thefe are to certify that plaintiff's bill, and the defendant's
anfwer, and the plaintiff's replication to the defendant's anfwer,
are duly filed as appears by my book. I have feen the depo-
fkions pubiifhed; dated this day of 1744.
The like Certificate in order to fet down a Caufe upon Bill and
Anfwer.
„ \ f A, B. plaintiff,
Between j c D defendant.
Thefe are to certify that the plaintiff's bill and defendant's
anfwer are duly filed, as appears by my book ; this being the
day of *7i4»
( 499
CHAPTER THE SIXTY-EIGHTH.
Receiver,
l" A RECEIVER is an indifferent perfon between the pai -
LxJL tics appointed by the court to receive the rents, iitues, or
profits of hnd or other thing in queilion in this court pending
the fuir, where it does not fecm reafonable to the court that either
party fhould do it. And he is to account for fuch his receipt
when the court (hall require him. And to fecure his doing
fo, he is commonly ordered to enter into a recognizance with
fureties in fuch a fum as the court (hall direct {a)."]
[A receiver may be granted on motion, upon a proper cafe
being laid before the court, notwithstanding ;he refervation of
all matters under the decree till after the Mailer has made his
report ; for this is a mere provifional order (£).]
[It is unufual to move for a receiver before anfwer ; but in
particular cafes it has been done (r).]
[An appointment of a receiver is in the difcretion of the
Matter; and there mud be fome fubftantial objection to induce
the court to overturn his appointment (?/).]
[ The court will not order a receiver of an eftate, where the
matters in difpute depend upon a mere legal title, except
ftrong ground of title is fhewn, and the rents are in danger
[A receiver was appointed upon motion, againft the legal
eftate, under conveyance, upon a ftrong fufpicion of abuftd-
confidence arifing upon the anfwer (_/)•]
[ I his court will not appoint a receiver of perfonal eftate on
account of a difpute in the ecclefiafiical court, concerning a
probate; as that court may grant adminiftration pendente lite \
neither will the court lay down a rule, that upon a bill by an
heir at law to controvert a will, a receiver fhall be appointed
(5)-]
(a) Wy. Pratt. Reg.
355
and
»
1 Vef. J. 45;
j.
35<>-
Amb 311.
lb) 3 Atk
(c) z Bro,
690. .
C. C. 158
Kk
2
13 Vet. 105.
Wy. Pratt,
Reg:
356.
5oo RECEIVER.
[In a caufe for an account of a partnership, both partners
being dead, a receiver fhall be appointed; /ecus in a cafe of
furvivng pa-tners, except where there is grofs abufe (.£).]
[A receiver granted for one partner againfl another, where
the defendant was in contempt, and did not appear (/) ]
[On motion for a receiver, a tenant in common in poffef-
fion, was ordered to give fecurity for payment of the propor-
tion of rents to his co tenants ; otherwife the order to go for a
receiver (£).]
[The court will not appoint a receiver of an infant's eftate
before bill filed. The court has not jurifdiction to appoint a
receiver unlefs a caufe is pending, except in the cafes of idiots
and lunaticks (/).]
[A receiver during plaintiff's infancy, who had no guardian,
was directed to place out the furplus rents, when the fame
ihould amount to a competent fum on government or other fe-
curities ; having never placed it out, he was directed to pay-
four per cent, fiom the time of the decree, till the infant came
of age. And it is no excufe that the Mailer gave no directions,
or that the buildings and farms were in a bad condition
[The receiver fettling the accounts, snd deliverirgthe
vouchers to plaintiff when he came of age, who admitted the
balance and received it without objeftion, has no weight
againft a motion to charge him with intereft ; as this tranfac-
tion was only two days after plaintiff came of age («).]
[A receiver, appointed by this court, fhall not make good
any lofs, which was not owing to any default of his ; for
where the rents are large, it is a neceffary precaution to re-
mit them by bills to London, rather than m/pecie; and where
a. receiver pays money to a tradefman, and takes bills for the
fum, if he was in credit at the time, though he fails foon after,
it fhall not effect the receiver (0).]
[A receiver of a public truft (having a falary), and making
.intereft of balances in his hands, is accountable to the truf-
tees for the intereft made ultra his falary ; a receiver fhall pay
Intereft for money kept in his hands (/>).]
[That buildings and farms are in ruinous condition, and te-
nants often breaking, will not juftify a receiver keeping the
{h) 2 Bro. C. C. 272. tn) 3 Atk. 275.
i) 4 Bio. C. C. 441. \o) 3 Atk. 480.
(I) 4 Bro. C. C. 414. (p) 3 Bro. C. C. 41, and
(/) 1 Atk. 578. Vef. J. 85.
(m) 3 Atk. 274.
balance
RECEIVER. 501
balance in his hands ; for it is not to be fuppofed, he
could exhault the whole received from the rents of the eftate
fo)0 «.-■,.. n „ ,
[A receiver not pnlfing his accounts, ihall always pay mte-
tereit uoon the balances in his hands (r). A receiver, who
does not pafs his accounts regularly, will not be allowed his
poundige (/).] ( ' .
[A receiver was charged with the lofs by the faiiure of the
Banker, having made the remittances to his own credit and,
ufe j and not to a feparate account for the tru 1 (/).]
[A receiver is not to lay out money in repairs at his own
difcretion ; bat under circumstances an inquiry was directed ;
and the report flaring that the expenditure was for the lading
benefit of the eftate, and by the direction of the trufiees, the
order for the allowance was made (iu).~]
[A reference was granted to the Mailer to enquire whether
the repairs bv a receiver were reafonable. But the court is
rot in the habit of permitting receivers to apply the truft fund
in repairs to any confiderabie extent without a previous appli-
cation (.v. ]
[On motion that a receiver, appointed by the court, might
be at liberty to diftrain, the order was granted ; but the dif-
trefs was to be in the name of the p;rfon having the legal ef-
tate, and the court faid that the 'amplication was unneceffary
[A receiver cannot proceed in ejectment againfl the tenants,
nor raife the rents upon flight ground?, nor let even for a year
wiihout application to the Mafter (3) ]
[A morion bv a remote remainder-man and tenants to reftrain
a re'et iver from ejecting tenants, was relufed with coifs, their
intereit nor being fufficient ; but fomebody interefted in the
eflate for life, or the term ought to have applied (a).']
[A manager of an eftate in the We it Indies is not to give
fecuriry faithfully to manage, but to account for produce, and
to confi^n fo far as the management requires it ; but mult
have a difcretion as to what is to be applied there. A receiver
here gives fecurity duly to account ; not for faithful manage-
ment. He cannot [ct t let, or make expenditures without ap-
(7) 3 Atk. 273, 00 3 Atk. fso. 3 Bro, C
(r) 8 Vef. 72. C 87. I Vef. J. 161.
(/) 8 Vef. 371. (») 3 Bro. C. C. 88. I Vef.
(/) 11 Vef. 377. J. 164.
(w) 6 Vef. 799. {d) 1 Vef. J. 165.
f*1 11 Vef, 563.
K k 3 plication
5 o2 RECEIVER.
plication to the court; a manager in the Weft Indies may
[If a receiver be appointed, and the owner of the eftate in
pofftffion, application mould be made to the court, that he
deliver pofll-fiion to the receiver, who cannot diftrain on the
owner (r).]
[Where a receiver is in poffeffion, an ejectment cannot be
brought without leave of the court (J).]
[The receiver moved that he may be at liberty to defend an
ejectment, which was granted (*).]
[It is no objection to a receiver, that he is pracT.fing barris-
ter ; but the folicitor in the caufe cannot be a receiver j nei-
ther can a truftee (/)•]
[A truftee cannnot be a receiver, whether he is a fole truf-
tee, or jointly with others (g).]
[When a receiver is to be appointed, a propofal of fome
perfon for the office and of two fureties muft be carried in be-
fore the Mafter, as the courfe of the court requires a fecurity
by the receiver and two fureries ; the propofal being allowed,
and an , ffidavit of the fureties' fufficiency being left, the recei-
ver and his fureties then enrer into a recognizance for his duly
accounting for what he fhall receive. His duty is to receive
the rents, and to grant leafes for the eftates with the approba-
tion of the Mafter (£).]
[Any perfon inclined to take a leafe muft lay a propofal be-
fore the Mafter, and if the fame is allower, his folicitor
muft prepare a draft of the leafe, to be fettled by the Mafter
WO
[The courfe of the court requires a fecurity by the receiver
and two fureties in a recognizance ; and taking a mortgage,
pelonging to the receiver inftead of it, is very improper (£).]
[After a receiver has made up his accounts (which is to be
done before a Mafter) the court upon motion and affidavit of
notice of the motion and certificate of the Mafter that he has
accounted &c. will , order his recognizance to be difcharged
(00 . .
It is not a motion of courfe, that when a receiver is appoint-
(b) i Vef. J. 139. (g) 8 Vef. 72. and n Vef.
(r) 2 Vef. 401. 363.
\d) 9 Vef. 339. \b) 8th edit, of Harrifon, 2d
\e ) 6 Vef. 287. vol. 107 and 108.
(/) 2 Vef. J. 137. and 3 Vef. (i) Ibid.
516. ' (*) 3 Atk. 237.
(/) Wy. Pratt. Reg. 356.
RECEIVER. S o 3
ed and has given fecurity, he fhould put the parties to the ex-
pence of a change ; and in order to entitle himfelf to be dif-
char^ed from the receiverfhip, he muft have an afRdav ; t to
(hew fome reafonable caufe for fuch difcharge ; otherwife the
motion will be rejected (/»)•]
[Sureties for a receiver will not be difcharged at their
own requeft ; therefore the court will not regard their ap-
plication, unlefs for benefit of the parties in the caufe («,.]
\Propcfal for a Receiver.
T rv, t. ^ f A. B and others Plaintiffs,
In Chancery. Between -J nT ^ ,. rw j \
1 £C D. and others Defendants.
The plaintiffs propofe F. G. of Ware, in the county of
Herts, pent, to be the receiver of the eftates in the pleadings in
this caufe named.
And the faid F. G. propofes H. I. of Ware aforef.iid, gent,
and K. L. of the fame place, gent, do be his fureties.]
\_Ajfdavit of the Sureties.
T ^i -n ; f A. B. and others Plaintiffs,
In Chancery. Between -J^tx .^ ™ r j
; (_C. D. and others Defendants.
H. I. of Ware, in the county of Herts, gent, and K. L. of
the fa 1 e place, gent, feveraliy make oath and fay, and firft
this deponent H. I. for himfelf, faith, that he is worth the
fum of jO( ol (double the amount of the yearly rent of the
eftates) after all his debts are paid. And this deponent K. L.
for himfelf faith, that he is worth the fum of 3000I. after all
his debts are paid.
Sworn, &c]
\_Ajjidavit of a Receiver on pafling his Accounts.
r nu c . f A. B. and others Plaintiffs,
In Chancery. Between -J^t^ j i_ fw ■ j *
; (_C D. and others Defendants.
F. G. of Ware, in the county of Herts, gent, the receive!
of the rents and profits of the eftates in queft ion in this caufe,
maketh oath that the foregoing account fet forth in the 10th
and nth pages of this book * doth contain, according to the
beft of this deponent's knowledge and belief, a lull and true
(m) 8th edit, of Har. 2d vol. * The book kept at the Maf-
1 10 and in. ter's chambers, in which this Af-
(«) 2 Vef. 401. fidavit is written,
K k 4 account
5 o4 RECZIV^R
account of all the rents and profits of the faid eflate for one
year, ending at Luly-day J 790, being from the foot of his
former account and of the former rents returned by his faid
foimer account to be in arrear and unrecei>ed at the time of
making up the fame, which have been received by this depo-
nent, or ;>ny o f her perfon by his order, or for his ufe, except
fuch as mny have been received fince the time of making up
his account for the faid year, ending at Lady day, 1790,
which are or will be brought into his fubfequent account.
And this d pcnerit further faith, that the feveral fums of
money mentioned in the faid foregoing account (in the 12th
and 13th pages of this book) to have been paid or allowed,
were actually paid or allowed by this deponent for, or on ac-
count of, the faid eftates, and for the feveral purpofes in the
12th and 1 jth pages mentioned, according to the be ft of his
knowledge and belief. And this deponent further faith, that
he doth not know of any error or orniiiion in the faid forego-
ing accounts to the prejudice of any ot the parties in the faid
caufe.]
[General Order.
December l$th, 1792*
The Lords Comrrnflionprs for the cufiocly of the Great Seal
of Great Britain, and the right honourable the Mailer of the
Rolls, having taken into their conlideration the neceffity of
enforcing the order of this court, that the receivers of the
rents and profits of eftates under the care of 'this court, do duly
and annually pafs their accounts, and pay what they receive
according to the terms of the orders, under which they are
apDointed, to prevent fuch accounts from running in arrear ?
do' think fit, and do hereby order, that the Mafters of this
court do, upon the ftcond leal after Trinity term in every
year certify to the Lord Chancellor, Lord Keeper, or Lords
Comnviiioners for the cuftody of the Great Seal for the time
. being, the (late of the feveral receivers' accounts in their re-
fpective offices ; and do farther direct that this prder be forth-
with entered with the Regifter, and copies fet up in all of-
fices belonging to the court of Chancery.
J. Eyre, C. S.
W. H. Aihurft, C. S.
J. Wilfon, C S.
R. P. Arden, M. R.]
RECEIVER.
[A Report of pajfing a Receiver's Account,
C A BJpiaintiff.
13etwee
5°5
11 |C. D. Defendant.
June 23, 1789.
In purfuance of the order mine upon the hearing of this
caufe the twenty Gxth day. of- November 17 4, add of a. fub-
fequent order of the ninth d y of May 177:, I nave been at-
tended by E F. reeeivcr of the rents and profits of thofe parts of
the cilates in qutltion in this caufe, which lie in 1'. in the
county of W. and by the folicitors for the parties, and the
faid receiver having brought before me an account of the rent
and profits pf the faid etlate, and of his payments and al.ow-
ances thereout for taxes and repiir for one year ending at
Lady-day 1788; which account containing iikewife a rental
of fie faid eftate, is contained in one fheet of pap j r marked
with the letter (H), which now remains with me ready to be;
produced as this court (hall dire 1 : 1 have in the prefence of
the faid receiver, as alfo in the prf fence of the foici tors for
the plaintiff and defendan', proceeded to take the Lid account,
And I find, that the faid receiver hath received, by and out
of the faid rents and profi's for that year, the feveral fums of
monry contained in the fourth coiumn of the faid accounr, in-
titled (money received^ amounting together to the fum of
465I. lis. 20. and that h" hath alioved o feveral tenants of
the faid eftate for taxes and rep airs, the feveral fums contained
in the fecond and third columns of t^e faid account* intitled
(allowances) and (lan. 691.}
( 508 )
CHAPTER THE SIXTY-NINTH,
IJfue,
F any matter of fact is ftrongly controverted, tills court 13
fo fenfible of the deficiency of trial by written evidence,
that it will not bind the parties thereby, but ufually directs
the matter to be tried by a jury, efpecially fuch important fads,
as the validity of a will, or whether A. is htir at law to B. or
the exiftence of a modus declmandu or real and immemorial
compofition for tithes. But as no jury can be fummoned to
attend at this court, the fact is ufually directed to be tried at
the bar of one of the courts of common law at Weftminfter,
or at their fittings, or at the afiizes upon a feigned iflue.
For (in order to bring it there, and have the point in
).]
[Though the ifiues d-recled to try a modus were eftablifhed by
two verdicts in favor of the plaintiff; he was entitled to his cofts
at law only, and not in equity ; for the fuit in this court is mere-
ly for the fecurity of the plaintiff, and to prevent any further
impeachment of his right to an exemption from trie payment of
tithes in fpecie ( jV]
[On an iflue from chancery, an original anfwer is not fent
down to the trial whether between the fame parties, or not,
till after refufal of the office copy as evidence (r).]
[By one of the (lamp acts a particular {tamp is required for
clofe copies to be given in evidence. There are two forts of
copies of proceedings •, a clofe copy which might be given in
evidence in another court, and office copies which are equiva-
lent to the record itfelf when made ufe of in the fame court in
the fame caufe ; the office copy is fixed to a certain number of
words in a meet in order to afcertain the officer's fees ; but
copies to be given in evidence might be written as clofe as the
writer pleafed ; the (lamp acts mean to pi event any frauds in
the office copies, by the parties compounding with the officers
for their fees, and then writing a more than ufual number of
words in them ; but did not mean to fix clcfe copies to any
number of words in a meet (/)."]
(0) 8th edit, of Har. 2d vol.- (r) 1 Vef. J. 152.
?3 v/ (/) 2 Burr 1181. and J
{p) I Bro. C. C. 420, fcfpin. Nifi Prius, 778.
(q) I'Atk. 6u.
( 5*1 )
CHAPTER THE SEVENTIETH.
Orders.
UNDER this head, I do not defign to treat of the general
and (landing orders, nor of fuch orders, as are made on
hearings -, but the orders here intended, are chiefly inter-
locutory orders, fuch as are antecedent to the decree.
And here we may obferve, that there are many occafions
intervening in a caufe which require motions or petitions to
fet them right; now fuch directions as are given by the court
on fuch motions or petitions, are commonly called interlocu-
tory orders ; and thofe orders are of feveral kinds, and are ei-
ther of courfe, ot /pedal : Sometimes they relate to the profe-
cuting or carrying on of a caufe, and fometimes they are
touching procefs, &c. At other times they are founded on
the {landing orders of the court, and upon the particular cir-
cumstances of the cafe, and are made upon the application of
feme perfon, either plaintiff or defendant, interefted in, or af-
fected, by the caufe. When they are made upon hearing, coun-
fel on both fides, regard is always had to the general rules of
the court ; but when they are made by confent of parties, they
are often out of the general rules, or courfe of the court ; in
which cafes the fpecial reafons, moving the court to vary
from thofe rules, are always exprefsed in fuch oruer.
All orders mud be pronounced in court, and drawn up by
the then fitting Regifter, from his minutes taken in court ; of
which minutes the clerk in court, or foiicitor of each fide, may
take a copy from the Regifter, in order to be informed of any
thing that 'is fpecial therein. And if in fpecial cafes any dif-
ficulty or doubt arifes in the minutes, the parties may attend
the Regifter about explaining them ; cr.d if by this means they
, cannot be fettled to the fatisfa£lion of both parties, the court
may be applied to, either by motion or petition, but'ufually by
petition, to explain or amend them ; aud the court will order
the Regifter, and all parties to attend therein ; when they
attend by their counfel : and the court then makes fuch order
about reclifying the minutes, as they (hall fee caufe.
But with r.fpec>, to orders of courfe, or fuch orders as are
not
5T2 ORDERS.
not in fpecial cafes, there is no occafion to take a copy of the
minutes, &c,
If you want an order drawn up upon a petition, you need
only go to any one of the RegiuVrs for that purpofe, and with
him leave the petition : And if the order be obtained upon
motion, then you may leave a brief with him, or other proper
•in(tru£lions, and from thofe and his minutes he draws the
order, and after you "have looked ir over, and feen that it is
right, you muft return it to be puffed (i. e. to have his hand
or mark to it) which being done, you muft leave it with one
of theentcriug Rgilters to be entered ; after which, and not
before, you may Regularly ferve it on the other fide ; for all
orders muft be pajTtd and entered before allowed or ferved :
And if either party expects any ufe or benefit by an order, it
muft be firft drawn up, &c.
The regiiter is to take down all minutes truly ; and in fpe-
cial cafes, and upon hearings, they are ufually, fo foon as pro-
nounced, read over in court by the Regiiter: And if the Re-
gifter draw up and p .fs any order contrary to the directions
of the court, (which very rarely happpens) the Lord Chan-
cellor, or Matter of the Roils, who made the order, will upon
motion or petition appoint a day for both fides to attend, with
the Regifter to fet it right : And if it be in the vacation, and
requires expedition, application may be made by petition.
Where any fubfequent order is obtained, and a former order
material for the court to take notice of is concealed, or not
truly and fairly reprefented, no benefit mail be taken of the
fubfequent order; but the court, upon motion, will either
fet afide, or alter the fame, as obtained furreptitioufly : And
therefore the Reg.i%r, in drawing up fuch orders, always men-
tions the next precedent order, in which great care ought
to be taken that it be fully and truly recited, left a miftake there-
in fhould vitiate the order.
After orders are entered, they may not only be altered but
.even difebarged on good caufe, by fpecial diredion of the court.
And when a p.irty moves to diicharge an order, he muft have
it drawn up ready to produce to the court: Any order of the
court may be figned and enrolled like a decree ; and then it
cannot, be altered upon motion or petition.
If counfel move in the morning to make an order raft abfo-
lute, it is commonly granted, provided caufe be not fhewn be-
fore the rifing of the. court ; for the party has all the day dur-
ing the fitting of the court, to fhew caufe : And an affidavit
of duly ferving the order nifi, is requifite on fuch motion ; and
without a motion and affidavit, fuch order is not abfolute, al-
though
ORDERS. 5 : 3
though no caufe can be fhewn, unlefs it he expresfly fo ordered :
Moreover, if you move not to make fuch order nlfi abfolute
till after the day given to fheW caufe, you muft then not only-
produce the affidavit of the fervice of the order, but alfo a
certificate from the Regifter, that no caufe is fhewn to the
contrary ; and then, if upon moving no caufe is fhewn, the
court makes it abfolute.
Where an order is made upon hearing counfel of both fides,
there is no occafion to ferve it. Mofely 202.
By the Stat. 9 W. 3. cap. 15. a fubmiffion to an award may
be made an order of this court.
The ufual way of ferving an order, is to fhew it to the clerk
in court, or his clerk or agent, on the other fide ; and at the
fame time to deliver him a true copy thereof, or to leave a copy
with the clerk in court, his clerk or agent, at his feat in the
office, at the fame time (hewing him the original order duly
palled and entered : But till the order in fome fpecial cafes,
i.e. a writ of execution of fuch order, under feal, be person-
ally ferved, the party is not brought into contempt, nor to be
committed for difobedience ; though in the cafe of an order
made againft a folicitor, or officer of the court, it hath been
held to be otherwife, and the bare fervice of the order deemed
to be good; becaufe he is fuppofed to be prefent, and to know
what paffes in court.
A party may be committed for not obeying an order per-
fonally ferved ; as if there be an order againft a folicitor to
bring his bill before a Mailer to have the fame taxed, and
he refufes to bring fuch bill before the Matter, then, upon
the Matter's certificate that he hath not brought fuch bill,
and on an affidavit that fuch folicitor hath been perfonally
ferved with a true copy of fuch order, the court on motion will
commit fuch folicitor.
And as to difobedience to orders, the doing a thing ao-ainft
which there is an injunction, is alway looked upon as a greater
contempt than where fomething is ordered to be done ; for the
former is ftill in a man's power, the latter not fo.
On an order for payment of cods, zfuhpoena for fuch cofts
muft be ferved perfonally, and the cofts at the fame time de-
manded •, which cotts, by the ftibpaena* are payable to the
plaintiff, (or defendant) or bearer. And if it be an order for
payment of other money, a writ of execution of fuch order is
to be perfonally ferved ; and if the party himfetf to whom it
is payable do not attend to receive it, at the fame time the
writ of execution is ferved, he muft execute a letter of at-
torney to the perfon that ferves the writ of execution -, autho-
VoL - *• L i rifmg
5 14 ORDERS.
rifing him to demand and receive fuch money ordered orde-
creed in fuch writ of execution ; and until the order under
feal be ferved on the p:\rty himfelf, he is not ordinarily to be
committed, or profecuted, for contempt or difobediencc
thereto.
The Regifter is not to draw up or fign any order grounded
upon an affidavit, unlefs it be firft filed.
No orders, but final and decretal ones, fhall be received to
be entered after eight days of pronouncing them (a). This
rule is however often difpenfed with.
Solicitor's afTent to interlocutory orders may bind ; but not
to a reference finally to determine, i Chan. Ca. 87.
If one is brought into court to anfwer the breach of an
order, if within the year, he fhall anfwer upon interrogatories,
without a bill : but if after the year, a bill ought to be filed to
fet forth the breach. Danv. 776.
A miftake in the title of an order, was amended though againft
a furety that gave a recognizance to abide the order of hearing,
1 Vern. 376. x
[An order nijl founded on affidavit was obtained, no notice
having been given of the motion ; at the day to fhew caufe, the
adverfe party's counfel fhewing caufe, infifted that the affi-
davit fhould have been mentioned and referred to in the order,
that fo the party might have been able to anfwer it, which he
could not now do, knowing nothing of it. The court faid,
if the affidavit had been fince the order, the adverfe party
muft have had time to anfwer it, "but being otherwife, the
party was allowed to go on with the motion, though the
counfel on the other fide much oppofed it (3).J
[If he, upon whofe motion, or for whofe benefit an order is
made, does not draw it up, &c. he cannot ordinarily make
any ufe of it, or have any benefit by it (r).]
[Yet where a bill to redeem the wife's inheritance was dif-
miffed with cofts for want of profecution, the order not being
drawn up, the plaintiffs pray to retain the bill; the defendant
makes affidavit of her hufband's being beyond fea, and prays that
before the bill be retained, the plaintiffs may have the cofts of
the difmiffion, &c. The court ordered the plaintiffs to give
fecurity to redeem, and to pay the cofts on the difmiffion^ if
they were taxed, elfe not ; and then the bill to be retain-
ed \d .]
[But the general courfe is that if either party will make any
(a) Cha Ca. 437. . (c) Ibid.
(1) Wy. Pratt. Reg. ,297. {d) Ibid.
x ORDERS, [the Forms of ] 515
ufe or expe£t any benet by an order, it mud be drawn up,
and perfected (e).~\
[Where there has been an order that a caufe fhould ftand
over indefinitely, it does not imply that the caufe is put off
only to the next term (/).]
[The parties interefted in an order for appointment of a
receiver, print it with a recital of the material fafts in the
caufe relative to the order. This is not a contempt, but highly
difcountenanced by the court (5)-]
[To enter an order nunc pro tunc is a motion of courfe,
where the party comes recently ; but after a length of time,
there ought to be notice of fuch motion (/').]
[An order made on a petition cannot be difcharged on mo-
tion unlefs exparte (*).1
An Order to make an Ektlion.
Forafmuch as this court was this prefent day informed by
Mr. being of the defendant's counfel, that the plaintiff
doth profecute the faid defendant both at law and in this court
for one and the fame matter, whereby the defendant is doubly
vexed ; it is therefore ordered, that the plaintiff do, within
ei^htdays after notice to his attorney at law and clerk in court,
make his election in which court he will proceed, and if he
{hall ele£t to proceed in this court, then his proceedings at
law are ftayed by injunclion ; but if he fhall elect to proceed at
law, or in default of fuch election by the time aforefaid, then
the faid plaintiff's bill is from thenceforth to ftand abfolutely
difmiffed out of this court, with coils to be taxed by Mr,
one of the Matters of this court.
Order toferve a Subpoena upon an Attorney.
Upon opening the matter of this day, See. being of the
plaintiff's counfel; and upon reading of an affidavit whereby
it appears that diligent fearch and enquiry have been made
after the defendant, but he cannot be met withal to be per-
fonally ferved with a fubpeena iffued out of this court at the
plaintiff's fuit, neither can his habitation or place of abode be
difcovered ; it is thereupon ordered, that the leaving a fubpeena
with the defendant's attorney at law be deemed a good fcrvice
of the faid defendant, whereby to compel him to appear to
and anfwer the plaintiff's bill.
() 3 Atk. 521.
(/) 2 Atk. 2. (i) 2 Vef. 113.
(i) * Atk. 488.
L 1 2 Order
$i6 ORDERS, [the Forms of]
Order to add a Defendant to a Bill,
Upon confideration this prefent day had by the Right Ho-
nourable the Mafter of the Rolls, upon the plaintiff's humble
petition, for the reafons therein contained, it is ordered that
the faid plaintiff be at liberty to infert into his bill the name
of with apt words to charge him as a defendant there*
upto.
Order to ajfign a Guardian,
Upon motion made this day unto this court by Mr.
being of counfel with the faid defendants the infants, it was
alledged that the faid defendants the infants, being ferved with
procefs to appear to and anfwer the plaintiff's bill, have ap-
peared thereto, but cannot anfwer the fame without having a
guardian affigned them for that purpofe ; it is thereupon or-
dered that a commiffion be awarded to commiffioners therein
to be named, to affign a guardian for the faid defendants the
infants, by whom they may anfwer and defend this fuit.
Order to fei down a Demurrer.
Upon the plaintiff's humble petition this day preferred to
the Right Honourable the Lord High Chancellor of Great
Britain, for the reafons therein contained, it is ordered that
the demurrer put in by the defendants to the plaintiff's bill be
let down to be argued the next day of demurrers after the de-
murrers already appointed ; but this order is to be drawn up,
and the demurrer entered with the Regifter within four days,
or elfe the Regifter is to take no notice hereof.
Order ft cver-rule a Demurrer.
The matter upon the demurrer put in by the defendant to
the plaintiff's biil coming this day to be heard before the Right
Honourable the Lord High Chancellor of Great Britain, in the
prefence of counfel, learned on both fides, his Lordfhip upon
opening and debate thereof, and hearing what could be al-
ledged on either fide, doth order that the defendant do anfwer-
the plaintiff's bill, and that the demurrer do (land over-ruled.
Order to dijfolve an Injunction unlefs Caufe.
Whereas the plaintiff obtained an injunction for (lay of the
defendant's proceedings at law, for the matters here in quef-
tion, until the defendant fhould dire&ly anfwer the plaintiff'^
bill, and this court take other order to the contrary; now
upon
ORDERS, [the Forms of.] 517
lipon opening of the matter this day unto this court by Mr.
being of the defendant's counfcl, ic was alledged that
the defendant hath fince put in a full and perfect anfwer to
the plaintiff's bill, and thereby denied the whole equity there-
of : it was therefore prayed, that the faid injunction do ftand
abfolutely difTolved, which is ordered accordingly, unlcfs the
plaintiff's clerk in court having notice hereof fhall on
next fhew unto this court good caufe to the contrary.
Order to examine the Regularity of an Attachment, &c.
Upon opening the matter this day unto this court by Mr.
being of the defendant's counfcl, it was alledged that
the plaintiff hath irregularly fued forth an attachment, and ar-
retted the defendant thereon, before the time for anfwering
was elapfed ; whereupon it is ordered that Mr. one
of the Mafters of this court do examine and certify whether
the attachment did duly and regularly iffue or not, and in the
mean time all proceedings on the bail-bond are Hayed.
Order to examine into the Irregularity of returning a Proclama-
tion.
Upon the humble petition of the faid defendant this day
preferred to the right honourable the Mailer of the Rolls,
(hewing that the plaintiff contrary to the rules and practice of
this court hath fued out procefs of contempt againft the de-
fendant to a proclamation, which the plaintiff hath procured to
be returned without endeavouring to arreft the defendant on
the firft or other of the faid procefs; whereupon it is ordered
that it be referred to the two fenior fix clerks not concerned in
this caufe, to examine and certify touching the faid irregula-
rity •, and in the mean time all further proceedings ©n the con-
tempts are flayed.
An Order for the Six Clerks to certify the due taking of the Defen-
dants Plea, Anfiver and Demurrer.
Upon motion this day made unto this court by Mr.
being of the plaintiff's counfel, it is ordered that the two
fenior fix clerks, not concerned in this caufe, do examine and
certify whether the defendant's anfwer, plea or demurrer be
duly and regularly taken and returned or not, and whether
the commiflion for taking the fame duly iffued.
L 1 3 Order
5 1 8 ORDERS, [the Forms of.]
Order for a Habeas Corpus.
Forafmuch as this court was this prefent day informed by
Mr. being of the plaintiff's counfel, that the defendant
being ferved with procefs to appear to and anfwer the plaintiff's
bill, doth refufe fo to do, but fits in contempt to an attachment for
want thereof, on which he hath been arretted, and is now a
prifoner in the Fleet prifon ; it is thereupon ordered that a
habeas corpus be directed to the Warden of the Fleet at the re-
turn thereof, to bring the body of the faid defendant to the bar
of this court to anfwer his faid contempt ; whereupon fuch
further order mall be made as (hall be juft.
Order to refer a Second Anfwer.
Upon opening of the matter this day unto this court by Mr.
being of the plaintiff's counfel, it was alledged that the
plaintiff having taken exceptions to the infufhciency of the
defendant's firft anfwer, the defendant hath put in a fecond
anfwer, which the plaintiff is advifed is alfo inefficient ; it is
therefore ordered that it be referred to Mr. one of the
Matters of this court, to look into the faid bill, anfwers and
exceptions, and examine and certify whether the faid defen-
dant's anfwers be fufficient in the points excepted unto or
not.
Cider for a Commiffion to examine de bene efle, and to refer
Exceptions.
Forafmuch as this court was this prefent day informed by
Mr. being of the plaintiff's counfel, that the plaintifflong
fince exhibited his bill unto this court againft the defendant,
whereunto the defendant hath put in insufficient anfwers, and
hath thereby delayed the plaintiff's proceedings to iffue in this
caufe, by which means the plaintiff is like to lofe the tettimony
of a very material witnefs, he being a great dealer at fea, and
now ready to go a voyage beyond fea ; it was therefore prayed^
that the p'aintiff may take out a commiffion to examine his
witneffes de bene ejfe to preferve their teftimonies, and the de-
fendant may join in the fame if he pleafes ; which is ordered
accordingly'-, and it is further ordered, that the bill, anfwers
and exceptions be referred to one of the Matters of this court
to confider of the fame.
Order to reneiv a Commiffion.
Upon opening of the matter this day unto this court by
Jflr- being of the defendant's counfel, and upon reading
:.." . i ■ I of
ORDERS, [the Forms of.] 519
«?F an Affidavit whereby it appeared that the defendant could
not procure A. B. and CD. his cqmmiflioners to be prefent
at the execution of the faid commiflion, which W2S executed
the lad vacation in this caufe ; and forafmuch as the faid de-
fendant hath many material witnefies to examine in this caufe,
js namely E. F. and G. II. which he could not procure to be
examined by the faid commiflion ; it was therefore prayed that
the faid defendant might renew the faid commiflion return-
able , which this court held reafonablc, and doth order
the fame accordingly.
Order to flay Proceedings on Exceptions to a Report.
Upon motion this day made unto this court by Mr.
being of the defendant's counfel, it was ailed ged. that -the de-
fendants have filed exceptions to the report made in this caufe
by Mr. one of the Mailers of this court, bearing date
the 22d of laft, and depofited 5I. with the Regifter
according to the rule of this court, as by the Regifter's certi-
ficate appears; it is thereupon ordered that all proceedings
upon the faid report be ftayed until the matter upon the
faid exceptions (hall be heard and determined by the court.
Order to confirm a Report unlefs Caufe.
Upon opening of the matter this prefent day by Mr.
being of the plaintiffs counfel, and upon producing of a re-
port made in this caufe by Mr. one of Matters of this
court, bearing date the day of inftant, it is or-
dered that the faid report, and all the matters and things
therein contained, do (land ratified and confirmed by the order,
authority and decree of this court, to be obferved and per-
formed by all parties thereto, according to the tenor and true
meaning thereof, unlefs the faid defendant, having notice
hereof, (hall within eight days after fuch notice (hew unto this
court good caufe to the contrary.
Order for a Superfedeas upon an Arrefl.
Upon confideration had this prefent day by his Honour the
Matter of the Rolls, upon the defendant's humble petition,
and of the Matter's report therein mentioned, whereby it ap-
pears above 500I. is reported due to defendant, and that
the defendant came up to town only to defend and profecute
exceptions taken to that and another report, whereof one of
L 1 4 them
5 2 o ORDERS, [the Forms of.]
them is referred to a trial at Uw, and that during the defen-
dant's attendance here on that occafion he is arretted at the
plaintiff's fu"'t, as by affidavit annexed appears, contrary to
the privilege that fuitors ought to have in going, attending,
and returning ; his Honour doth thereupon order, that a/«-
perfedeas do iffue to the fheriff of Middle/ex to difcharge the
faid defendant of the faid arrefl, he being only arretted on
rnefne procefs.
Order to diftmfs a Bill for want of a Replication.
Forafmuch as this court was this prefent day informed by
Mr. being of the defendant's counfel, that the plaintiff
exhibited his bill into this court againit the faid defendant in
Michaelrtas term laft, to which the defendant anfwered the
fame term, fince which time the faid plaintiff hath not fur-
ther proceeded in this caufe, as by certificate now read ap-
peared •, it is thereupon ordered that the faid plaintiff's bill
do ftand difmiffed out of this court with cofts ; and it is
hereby referred to Mr. , one of the Matters of this
court, to tax the faid cofts.
Order nifi for a Subpcena duces tecum.
Upon motion this day made un o this court by Mr.
being of the plaintiff's counfel, it is ordered that zfubpoena duces
tecum be awarded againit the faid defendant to bring into
this court certain deeds and writings by him confeffed in his
anfwer to be in his cuftody, or at the return thereof to (hew
caufe to the contrary.
Order for a Subpoena duces tecum.
Forafmuch as this court was this prefent day informed by
Mr. being of the plaintiff's counfel, that the defendant
having by his anfwer to the plaintiff's bill confeffed the having
in his cuftody a feoffment or other writing of the lands in ques-
tion, conveyed from A. B. to C. D. wherein the plaintiffclaim-
eth title ; it was therefore prayed that zfubposna duces tecum may
he awarded againit the faid defendant to biing the faid writ-
ings into, coun, which is ordered accordingly.
Order for a Serjeant at Anns.
Whereas the faid defendant hath fit out all procefs of con-
tempt to a commiffion of 'rebellion , for want of his anfwer to the
plaintiffs bill, as by the fame under the feal of this court, and
4 the
ORDERS, [the Forms of.] 521
the commlffioners' certificate thereupon indorfed, whereby the
laid commiffioners do certify that the faid defendant doth ab-
fcond himfelf fo that he cannot be taken thereupon, now pro-
duced appears; it is therefore ordered, upon the motion of
Mr. being of the plaintiff's counfd, that the ferjeant
at arms attending this court, do apprehend the faid tiefendant,
and bring him to the bar of this court, to anfwer the faid con-
tempt.
Order to examine viva voce.
Upon motion made this day unto this court by Mr.
being of the plaintiff's counfel, it is ordered that the plain-
tiff be at liberty to examine one or more witneffes viva voce,
at the hearing of this caufe, to prove the execution of a cer-
tain deed or writing bearing date the day of
1767, made between A. B. of the one part, and CD. of the
other part, and alfo a bond from E. F. to G. H. bearing date
the day of I 7 ( 57, in the penalty of iool. for
payment of 50I. and intereft to the faid G. H. laving to the
defendant all juft exceptions.
Order for a Subpoena in nature of a fcire facias.
Upon opening of the matter, &c. by Mr. of the plain-
tiff's counfel, it was alledged that the plaintiff having obtained
a decree againft the defendant, he died before the performance
thereof, leaving C. D. Efq ; his brother and heir ; wherefore
it was prayed that a fubpoena in nature of a fcire facias mi^ht
be awarded againft the faid C. D. to fhew caufe at the return
thereof, why the faid decree fhould not (land revived againft
him, and be of the fame force and effett as the fame was at the
time of the deceafe of the faid C. D. which is ordered accord-
ingly.
Order to flay Proceedings on a Decree, upon filing a Bill of
Review.
Upon opening, &c. it was alledged that the faid plaintiff
hath filed a bill of review againft the faid defendant, and alfo
given fecurity by recognizance to abide fuch order as the court
(hall make upon hearing this caufe upon the faid bill of re-
view, according to the courfe of the court, as by certificate ap-
pears, and yet the faid defendant doth profecute the plantiff
with procefs of contempt for not performing the former decree
made in this caufe ; it was therefore prayed that the plaintiff's
bill of review may be admitted, and that all proceedings on the
faid decree may be ftayed till the matter of the faid bill of
review
S22 ORDERS, [the Forms of.]
review be heard and determined by this court ; which is or-
dered accordingly.
Order to f.and committed for not performing a Decree.
Upon the plaintiff's humble petition this day preferred to
the right honourable the Lord High Chancellor of Great Bri-
tain, it was ailedged that the plaintiff in Term
obtained the decree of this court againft the defendant, for
vacating a recognizance, amongil other things therein cen-
tered, and that the faid defendant hath flood out all pro-
cefs of contempt to a commiffwn of rebellion, which hath been
feveral times renewed againit him, he abfeonding, that he
could not be taken till now of late •, and thereupon the faid
defendant entered his appearance with the Regifter of this
coxirt, and hath fince been examined uoon the contempt ; and
the faid examination having been referred to Mr.
one of the Mailers of this court, the faid Mafter hath cer-
tified the faid defendant is guilty of the faid contempt ; and
forafmuch as the faid plaintiff hath not had any benefit
of the faid decree, but hath been at great charges in pro-
fecuting the faid defendant, and endeavouring to compel him
to yield obedience thereunto, which he hath obftinately re-
fufed to do, to the great damage of the faid plaintiff; it
was therefore prayed that the defendant might {land com-
mitted unto the prifon of the Fleet until he (hall perform the
faid decree ; which his Lordfhip held reafonable, and doth
order the fame accordingly.
An Order for (in Injunction to put and quiet the Plaintiff in Pof-
feffion, according to a Decree.
Upon opening the matter this prefent day unto this court
by Mr. being of the plaintiff's counfel, it was ailedged,
that by a decree of this court, bearing date the day
of 1767, as alfo by a former decree of the
day of '765, the defendant is to execute a convey-
ance of a certain tenement and farm in the county
of to hold to the plaintiff and his heirs, after the death
of and his wife both fince deceafed, which
the plaintiff and his heirs are to have and enjoy accordingly,
and that the defendant do deliver up the writings touching
the premifes to the plaintiff upon oath ; and that the defen-
dant hath been duly ferved with the faid decree, and convey-'
ances directed to bt fettled by Mr. one of the Mafters
of this court, and which were fettled accordingly, have been
tendered
ORDERS, [the Forms of.] 523
tendered to him to execute, which he refufes to do, as by
affidavit now produced appeared, and is in cornempt for breach
of the faid decree; it was therefore prayed that an injurxftion
mav be awarded to put and quiet the plaintiff and his afligns
in the poffefljon of the faid prcmifes, according to the faid de-
cree 5 which is ordered accordingly.
( 5*4 )
CHAPTER THE SEVENTY^FIRST.
Paying and receiving Money in Court.
r~ A LL fums of money ordered or decreed to be paid into
\ ±\. this court, muft, purfuant to the flat. 12 Geo. i.e. 33. be
paid in;o the Bank, with the privity of the Accountant Gene-
ral of this court, and placed to the credit of the caufe : and
any of the parties to the fuit, where money is ordered to be
paid into the Bank, may apply by motion or petition, that fuch
money may be laid out. and invefted in government fecurities
for the benefit of the parties interefled in the caufe («).]
[The decree or order directing money to be paid 1 into the
Bank, in the name, and with the privity, of the Accountant
General of this court in truft in the caufe, being drawn up,
pafTed and entered at the Regifter Office, is to be produced at
the Accountant General's Office, and the Accountant General
will thereupon give a direction in writing to the party paying
jn the money, to pay the fame to one of the cafhiers of the
Bank purfuant to the order. The party or his folicitor muft
attend the cafhier accordingly ; and when the money is paid,
the cafhier gives a receipt for the furn paid by the party pay-
ing the fame, which receipt the folicitor either brings to the
Accountant General's Office, or leaves with the cafhier ; the
receipt is afterwards left by one of the clerks of the Accoun-
tant General's Office at the Report Office to be filed. The
laft and only remaining requifite is the Accountant General's
certificate of the money being paid, wherein is dated the title
of the caufe, and that in purfuance of the order dated
the plaintiff or defendant hath paid into the Bank of England t
the fum of which is placed to his account as Accoun-
tant General and to the credit of that caufe in the books kept
at the Bank, and in his office, as appears by the receipt of
one of the cafhiers of the Bank, dated the
day of thereto annexed. This certificate is filed by
the Accountant General, at the Report Office, an office copy
thereof muft be taken from the Accountant General's office
(a) 8th edit, of Har. 2d vol, 152..
PAYING AND RECEIVING, &e. 52.
by the folicitor ; and this being done, the whole is complet-
ed (*).]
[The party entitled to money in this court, in order to obtain
the Tame, muft give notice in writing to all the parties in the
fuit, of his intention to move the court, that the fpecific fum
to which he is entitled may be paid or transferred to him by
the Accountant General of this court. This notice being
ferved in the ufual manner, upon the clerks in court for the
feveral parties, the Accountant General's certificate of fo much
money ftanding in his name, to the credit of the caufe, fhould
be befpoken at t-He Accountant General's office, a day or two
previous to the clay whereon the motion is to be made : the
court, upon hearing the report, or order, in favour of the party
applying, and the certificate of the Accountant General, will
make an order upon the Accountant General, to pay or tansfer
the money purfuant to the notice ; and to obviate any difficulty,
an office copy of the affidavit of fervice of the notice fhould be
ready to be read, if called for (r).]
[The motion being made, and the matters ordered, the coun-
fel's brief muft be taken to the Regifter office, and the order
drawn up, paffed, and entered ; a certificate muft be obtained
from the Report office, and the order and certificate being pro-
duced at the Accountant General's office, the party entitled
fhould attend with his clerk in court (the folicitor will not be
fufficient) at the Accountant General's office, who will iden-
tify the perfon applying to be the perfon to whom the order
has directed the money to be paid. And upon the party figning
a receipt in the Accountant General's book, the Accountant
General will give a cheque note upon the Bank, which being
entered at the Report office, muft be carried to one of the Re-
gifters to be figned by him. This being done, the party will
upon application at the Chancery office in the Bank, receive
his money.]
[Parties only, or their legal reprefentatives or affigns, can ob-
tain money from the Accountant General's office. Reprefen-
tatives muft fhew themlelves to be fuch, by producing letters
of adminiftration, probate of the will, or alignment, as the
cafe may be, before they can receive the money. If the per-
fon to whom the money is due, cannot conveniently attend to
receive the fame, he muft execute a letter of attorney, autho-
rising fuch perfon as he (hall think proper to receive the fame ;
and on producing and leaving the letter of attorney, and an
affidavit of the due execution thereof at the Accountant General'*
(b) 8th edit, of Har. 2d vol. 125. (c) Ibid.
office*
526 PAYING AND RECEIVING
office, be will thereupon give to the perfon named therein, a
cheque note upon the Bank, to receive the money due. This
letter of attorney is ufually made cut at the Accountant Ge-
neral's office () r Vef.J. 170.
v J [Tie
MONEY IN COURT. 5?<7
[The Court will not keep money after the party is entitled to
it, even at his requeft (£).]
[When an order is made by confent for a fum of money to
be paid into Court, no man can difpenfe with it ; for no per-
fon mail prefume, after an order has been made, to take upon
himfelf to difpenfe with it upon the tacit acquiefcence of the
other fide, or an idea of his own (*').]
[Where money is dire&ed by a private a& of parliament to
be paid to the Accountant General ; he is bound by the acl: to
receive it, and the court will not make an order for that pur-
pofe (£).]
[The Court will now, immediately upon coming in of defen-
dant's anfwer, order fo much as he admits to have in his hands
of the teftator's property, to be paid into the Bank. It was for-
merly thought neceffary for the plaintiff to (hew that the exe-
cutor had abufed his trufc, or that the fund was in danger/torn
the iniblvent circumftances of the executor (/).]
[Motion to pay money into court was refufed, the affidavit
not fpecifying the fum in defendant's hands (?»).]
[Money in the funds, belonging to wards, cannot be trans-
ferred into the name of the Accountant General, to the cre-
dit of the caufe, until an account is taken by a Maftcr, and his
report made («).]
[The court will retain monies decreed to parties, on the ap-
plication of perfons having claims upon them ().]
[An admiflion, that there is Handing in the names of the
executors upon the trufts of the will, a confiderable fum in
the 3 per cents, and offering an appropriation, was held fuf-
ficient to entitle the plaintiff (a contingent legatee) to move
for that purpofe ; and by confent the order was made, as upon
admiflion of affets fufficient to fatisfy the plaintiff's demand,
to transfer (^).]
[The defendant was ordered to pay money into court be-
fore anfwer, in a cafe of grofs fraud, appearing upon affidavit
by the plaintiff, and by the defendant in anfwer to fuch afS-
Vit(r).]
[A notice to pay money into court upon the affidavit of an
[h) r Vef. J. 44 . r„) Ibid. 56.
[ ) 2 Vef. J. 38. (o) 4 Ero. C. C. 430.
/■) t Vef. J. 56. (p) 3 Vef. 572.
[/) 3 Bro C. C. 365. \ q ) 5 Vef. ai.
(m) 1 Bro. C. C. 57. (r) 6 Vef. 738.
accountant,
5 23 PAYING AND RECEIVING
accountant, that from the fchedules to the anfwer, the exa-
mination, and book of accounts fuch a balance was due, was
refufed (x) ]
[But if an anfwer and an examination in the Mafter's office
refer to fchedules containing the receipts aud payments, or if
books are referred to in fuch a way as to make them part
of the examination or the fchedule, that is a fufficient admiffion
for an order to pay money into court (?).]
[A motion that the defendant fhould pay into court a fum
of money appearing to be in his hands, by the partnerfhip cafh
book and ledger, referred to by his examination, was refufed,
as the reference was to all the books ; not to the above books
only (w).]
[The practice of moving to pay money into court forthwith
was altered : In future a day mull be named (a?).]
[Where money has been ordered to be paid, the motion is,
that the party fhail pay it by a fhort day, or (land com-
mitted (y).]
By an order dated 2d July 1739, reciting the act: pafled 12
Geo. 2. intitled, " An AQ. ro impower the high court of Chan-
*• eery to lay out, upon proper fecunties. any monies, not
tl exceeding a fum therein limited, out of the common and ge-
tf neral cafh in the Bank of England, belonging to the fuitors
« of the (aid court, for the eafe of the faid fuitors, by applying
<{ the intereft arifing therefrom, for anfwering the charges of
« the office of the Accountant General of the faid court," It
is enadled, that out of the money that lies dead in the Bank,
belonging to the fuitors of this court, a fum not exceeding
35,0001. fhould, by virtue of an order of this court, be placed
out in one intire fum for the purpofes thereafter mentioned.
Whereupon it is ordered, that out of the cafh in the Bank be-
longing to the fuitors of this court, 35,000!. be placed out with
the privity of the Accountant General in the purchafe of 3 per
cents, annuities anno 1 73 1, in truft for the fuitors of this court,
fubject to the further order of the court. And out of fuch in-
tereft the Bank is from time to time, without any draft, to pay 3
by quarterly payments, the annual fum of 1020I. in manner
following, that is to fay, To Mark Tburfton, Efq. Accountant
General of this court, 650I. to Mr, John Waple, his firft clerk,
250I.. and to Mr. Henry Nowell, his fecond clerk, 120I. till the
further order of the court, which falaries are to be in lieu of,
(;)
8Vef.68. (*)8Vef. 3 8i.
, 8Vef, 69. |»3 Bro.C.C. 372*
(w) 8 Vef. 91.
and
MONEY IN COURT;
S?9
and in recompenfe and fatisfartion for all fees which Hi all be
payable to the Accountant Generai's office by the fuitors of this
court. And it is fa rrher ordered, t ! at from the 2oth of Septem-
ber then next, no fee or fees whatfoever be taken at the Ac-
countant General's office, or by any officer or clerk belonging
thereunto, for any matter of thing directed to be done by the
acl: 12 Ceo. 1.
And by an order iff. Augujl 1741, touching inconveniences
that may arife in receiving from the Exchequer the annuities
due, and which (hall grow due, on Exchequer orders and tallies,
for want of having the fame entered at the Exchequer, and pro-
per indorfements made thereon, that the annuities of fuch or-
ders are to be paid to the cafhiers of the Bank of England for
the ufe of the fuitors, It is ordered that the Bank of England do,
by their proper officer or officers, fend to the Exchequer all fuch.
Exchequer orders belonging to the fuitors of this court, and
then in the Bank, to the intent that the proper officer or officers
of the Exchequer may make entries in the books kept there,
and indorfements on the faid orders, that the annuities due
and which (hall grow due thereon refpe£fively are to be paid
to one of the cafhters of the Bank of England for the time be-
ing, to be placed to the credit of the refpe£tive caufes to
which the faid orders do belong, and to no other perfon or per-
fons whatfoever without the further order of this court; and
that the like entries and indorfements be made on all fuch Ex-
chequer orders, as (hall hereafter be delivered into the Bank en
account of any of the fuitors of this court, by virtue or in con-
fequence of any decree or order of this court.
Prerogative probate isneceflary when the futn exceeds 30I. in
order for the Accountant General to pay money out of court.
Inferior fums are paid upon the probate of the Ordinary cf the
dioeefe only*
Vol. I- ' M k
( 53° )
CHAPTER THE SEVENTY SECOND.
Deeds and Writings,
aF deeds or other writings are referred to by an anfwer,
this court on motion will order the defendant to leave them
with his clerk in court, for the infpeclion of the plaintiff his
folicitor or agent (a). But an anfwer admitting the execu-
tion of an inflrument, craving leave to refer thereto, when
produced, is not a ground to move for the production, not
admitting that it is in the pofieffion of the defendant. 8 Vcf.
[Where a deed in the plaintiff's pofleflion mentioned in
the plaintiff's bill, was neceflary to the defendant's making
his defence a full anfwer, the court ordered the plaintiff to
give him a copy of it (b) ]
[The defendant's witnefs proves a deed and refers to it in
his depofition ; the plaintiff cannot compel the defendant to
produce the deed at the hearing, the reference thereto not mak-
ing it part of the depofition (c).]
[A deed is proved in the caufe, and referred to in the depo-
fitions*, yet the court will not order that the other fide fhall
have leave to infpe& it before the hearing •, for the defendant
before hearing is not to fee the ftrength of the caufe, or any
deed to pick holes in it (d).~]
[A motion by defendant for infpe&ion of letters, referred to
by plaintiff as exhibits, was refufed with tofts (e)~\
[It is the common practice, where the intereft of the Re-
mainder- man is expectant on a mere tenancy for life, to order
the deeds and writing of the eftate, in the hands of the tenant
for life, to be for the better fecurity of the Remainder-man,
taken out of the hands of the tenant for life, and depofited in
(a) Vide 3. P. W. 364. But
the reporter adds a query, whe-
ther the bare referring to a deed
without fetting it forth in hec
'verba, will make it part of the
anfwer.
(b) Wy. Pratt. Reg. 161. Sed
vide 2 Dick. 778.
(c) 3 P. W 35.
(d) 2 P. W- 410. 2 Fowler,
55-
{e) 7 Vef. 738.
6 court*
DEEDS AND WRITINGS.
S3*
court ; but this is not done in the cafe of a remote Remainder-
man (/).]
[Where a fon remainder- man in tail under a fettlement
made by his grand-father, in which the father is tenant for
life with impeachment of wafte, prefers a bill to have the title
deeds brought into court, the court refufed to do it, but where
the remainder-man is ftranger to-tenant for life, it may be
done (£).]_
[An heir at law has no equity, except to remove incum-
brances (landing in the way of his legal title (£).]
[In a bill by the Earl of S. claiming under an old intail to
difcover the defendant's title, praying that the writings might
be produced : The defendant let forth that by a deed to make
a tenant to the praecipe and a recovery, the plaintiff's title had
been barred, and that by deed and will the eflate had been fet-
tled on the defendant. The court ordered the defendant to
bring before the Mailer all deeds and writings, and for the
plaintiff to have the infpe£lion of them (*).]
[In a bill by the heir in tail againfl devifees, on amotion, an
infpeclion was ordered of all deeds of fettlement admitted to
be in the pofTeflion of the defendant creating eftat,es tail ge-
neral, but no farther (£).]
[Where the bill feeks relief as well as difcovery, the court
will not upon motion aid the plaintiff in proceeding at law
without the authority and confent of the court. Therefore in
fuch a cafe, a motion that the defendant mould produce
deeds, &c. at the trial of an ejectment was refufed ; for if
you will have equitable relief to aid the trial at law, you
mud have that relief upon a decretal order prior to the trial
at law (/).]
[The defendant is not obliged to difcover his title deeds ;
for you cannot come by a fifhing bill in this court, and pray
a difcovery of the deeds and writings of defendant's title. If
indeed there is any charge in the bill general or fpecial, that
defendant has in his power deeds and writings of plaintiff's
title, an anfwer mufl be given thereto (m).~\
[If a bill flates that plaintiff has brought an ejectment, and
cannot proceed becaufe a deed under which he claims title
(/) i Atk. 450. 2 Vef. 612. (k ) 4 Vef. 66.
3 Atk. 381. (/) 6 Vef. 288. and 6 Vef.
(g) 3 Atk. 570. Amb. 154. 293.
U) 4 Vef. 66. («;) 2 Vef. 445.
(*)* P. W. 176. 3 P. W.
M m 2 *s
BEFDS AND WRITINGS.
53*
i, in defendant's poneffion. the court M » <"£»«?
^ r>rn^nfrion and upon motion will diredt it to De pro
"uceH the tdal! if ,k defendant b, his anfwer admits to
have the deed in his poffeflion («)•]
(;,) i Vef. J.459-
( 533 )
N:
CHAPTER THE SEVENTY-THIRD.
Writ of Ne Exeat Regno,
E Exeat Regno is a writ to reftrain a perfon from going
out of the kingdom without the king's licence, or leave
of this court. s
[The writ Exeat Regno is a high prerogative writ, originally
applicable to purpjfes of itate, aftetwards extended to pri-
vate tranfactions (a .]
[It is faid to have been fettled by the late lord keeper
Wright, that it being a remedial writ, it is as fuch upon due
application by petition or motion, to be granted the fub-
jeft (A).]
It is generally granted on a commencement of a fuit againffc
a man in this court, when the plaintiff apprehends he will
fly to foreign parts, and thereby avoid the jultice of this court,
upon an affidavit thereof, and of fuch fum of money as the
defendant is indebted to the plaintiff. It is now a remedial
writ, and as fuch upon due application by motion or peti-
tion may be granted the plaintiff (c).
[A writ of ne exeat regno ought not to be granted without
a bill firft filed, nor where the demand is entirely at law ;
for there the plaintiff has bail, and he ought not to have dou-
ble bail, both at law and in equity (J).]
[The writ of ne exeat regno was granted for a demand upon
which bail might be had, viz. the admitted balance of an
account, on the ground that if bail were given, the plaintiif
difputing the balance, would be entitled to an account, and the
defendant could not put him to his election to fue at law, or
in equity, except upon terms (e).~]
[If a man has been actually arretted and kept in cuftody
upon a demand, as if it had been a legal demand, and is dis-
charged, you cannot make him give equitable bail (/).]
(a) to Vef. 164. 2 Cha. Oa. (d) 2 P. W. 312. Pre. Cha*
245- I 7 I -
(A) Wy. Pra&. Reg. 289. (e) 8 Vef. 593.
(c ) Ambl. 75. 3 Bro. C, C. (/) 8 Vef. 5^
?i8. 3 P. W. 311,
M m 3 [\ n(
534 NE EXEAT REGNO.
[A ne exeat regno lies to prevent one going to Scotland ; in
which cafe the condition of the recognizance mud be not
to go out of the realm, or to Scotland (g)-~]
[ The court refufed to grant a ne exeat regno, to reflrain a
member of parliament reprefcnting an lrifh borough, from
going to Ireland (£).]
[It will not lie, if defendant is going to a place fubjec"r, to
the laws of England, and where his effects are (z).]
[A ne exeat regno never can be granted but upon a clear de-
mand ; anc no equity can arife here from a contract legally
fatisfied in a country where it arofe {k).~\
[It was not granted for the wife againft her hufband, in a
refpedt of a demand arifing by virtue of a marriage fettlement,
whereby the defendant obliged himfelf to fecure a fum of mo-
ney out of his real and perfonal eftate, as a provifion for his
wife, in cafe (he furvived him ; as the contingency might never
happen (/).]
[A writ of ne exeat regno was refufed in the cafe of a bill,
to compel the defendant to perform an undertaking for an
indemnity ; there muft be an equitable demand in nature of
a debt due (w)."]
[A bill was filed to make the principal in a bond pay the
debt. The party was going to America upon the ift of June,
and the bond would have been due on the ift of July ; lord
Thurlow refufed the writ (»).]
[The affidavit for a ne exeat regno, muft be as pofitive as to
the equitable debt, as an affidavit of a legal debt, to hold to
bail: an affidavit ftating merely information and belief as to
the amount of the debt, will not do, except where it is a mat-
ter of pure account. The ordinary cafe is, the cafe of part-
ners and executors, upon which information and belief, is
held fufBcient () 3 Bro. C. C. ii. 1 Vef.
m) 6 Vef. ,-2 83. J. 49.
hufband
NE EXEAT REGNO. S3S
hufband leaving the kingdom, pending a fuit in the ecclefmfti-
cal court againft him for alimony, the Chancellor inclined to
think he could not grant the writ (7).]
[A writ of ne exeat regno, iffues in the cafe of alimony, but
only for fums actually due, and cofts (r).]
[Where an inhabitant of Antigua obtained an ne exeat
regno againft another, who was alfo an inhabitant of Antigua,
(but both at the time refiding in England), upon a bond ftated in
the bill to be loft, the court difcharged the ne exeat, on giv-
ing fecurity to abide the decree (j).]
[The court refufed to grant a he exeat regno againft the ob-
ligor in a bond, at the fuit of the affignee of the obligee, be-
caufe the obligee was dead, and nobody had adminiftered to
him, and therefore the fuit mufi be difmiffed for want of
parties (/).]
[If the writ is prayed, and the party by anfwer or Other-
wife fatisfies the court that he is not going beyond fea, it will
not be granted (iv)-~]
[A writ of ne exeat regno obtained by one French emigrant
againft another, was difcharged upon circumftances app^ ri ig
upon the affidavits in fupport of the bill, and upon the anfwer
which may be read ; the application not being in the nature
of an affidavit to hold to bail, but to the discretion of the
court acting beyond the limits of the comm n law, and ap-
plying a remedy in its origin, not diftinctly applicable to
private tranfactions between fubject and fubject ; and it is
very delicate to interfere as againft foreigners;, but on ap-
plication of this writ to them, it would be a neceffary term,
that it fhall be limply a cafe of equity affording no ground
to fue (#).]
[A writ of ne exeat regno which was obtained by a resi-
dent here againft a refident in the Weft Indies, upon a
demand arifing there, was, when the anfwer came in, dif-
charged under the circumftances, with cofts againft the pro*
chein amy of the infant plaintiff; but upon admiffions in the
anfwer, the defendant was ordered to give fecurity to abide
the decree {y).~]
(7) I Vef. J. 94, et vide, I (s) 3 Bro. C. C. 218. $Ve{.
Cha. Ca. 115. 2 Vent. 345. 91.
2 Atk. 2ic. ft) 3 Bro. C. C. 25.
(r) 7 Vef. 171, and 173, and hu) Wy. Pract. JW. 2 go.
410. ^) 4 Vef. 577 .
(v) 5 Vef. 91,
M m 4 £A ne
53<5 NE EXEAT REGNO.
£ A «<> was difcharged upon paying into court
the fum for which it was indorfed (2).]
[A writ of ne exeat regno obtained upon declarations or facls as
evidence of the intention to go abroad, will not be difcharged
upon affidavit denying the intention [a .]
[If a plaintiff in his affidavit in fupport of a motion for a
ne exeat regno fwears that the defendant intends to quit and
leave ihe kingdom, and that he believes he will do fo unlefs
prevented by the authority of the court, it is fufficient without
dating the circumltances upon which he grounds his belief.
(Jb). Srd qu.~]
[ 1 he affidavit for a writ of ne exeat regno muft ftate an in-
tention to go abroad : that the defendant will hide himfelf is
not fufficient. It rruft be pofitive that he is going abroad, or
to fome declaration by him that he is ; it is not fufficient to fwear,
that another perfon laid fo (r).]
f f he affidavit in fupport of a ne exeat regno, ftating that a
balance is due to the plaintiff, and the defendant informed the
pi intiff that he (the defendant), had an appointment at Can-
ton, and that he was going to refide there, and that the plain-
tiff believes if he quits the kingdom, the recovery of the balance
w 1 be greatly endangered, is fufficient (*/).]
[The court refufed to grant a writ of ne exeat regno upon an
affidavit ftating the intention of the defendant to quit the king-
dom upon information and belief only, and upon an affidavit
that he is an officer in the fervice of the^Eaft India company, and
that the deponent is informed that there is a general order for
all their military officers tojoin (*-).]
This writ is at this time, commonly directed to the fheriff
only, to make the party find fufficient furety that he will not
depart the realm without the order of the court ; and on his
refufal to give fuch bail or furety to the fheriff, to commit him
to prifon. -
'i he party that fues, commonly, marks on the back of
the writ in what fum the bond for yielding obedience to
the writ (hall be: and generally the penalty is double fuch
fum.
"When the party is taken, he muft give bond to the Mafler
of the Rolls, in fuch penalty as the writ requires for yielding
obedience to it, or fatisfy the court by anfwer, affidavit, or
(c) 1 Vef. J. 22. (c) 7 Vef. 410, and 417.
(a) k Vef. 597. ' (d) 7 Vef. 418. 8 Vef. 32.
(*) 5 Vef. 96. ' (c) 11 Vef. 54.
c - i other-
NE EXEAT REGNO. 537
ofherwife, that he hath no defign of leaving the kingdom,
nor is indebted to the plaintiff; then he may give notice and
move the court that the ne exeat regno may be difchafged, and
unon hearing counfel on both fides, the court will either dif-
charge or conrinue it.
The practice now is to give fecurity to abide the order on
the hearing, before the court will difcharge the writ ; which
fecurity is t ken by recognizance before the M after as all other
fecurities ■, and it is in the penalty of what is fworn due, and
rndorfed on the writ, as a guide for the fheriff to take bail
by.
[So it is obfervable, that a defendant when taken on a writ of
ne exeat regno teems obliged to enter into no lefs than three
different bail bonds before he can be difcharged, or fet at li-
berty, viz. in one to the fheriff, in another to the Mafter of
the Roll?, and a third to a mafter in chancery.]
This writ was called a ftatute writ, formerly tenderly made
sfe of, now become a common procefs of the court •, the plain-
tiff by a ftanding order in lord Cowper's time, is to make
oath of his debt, and the writ is always marked for the fum
fworn in the affidavit, and plaintiff fwears the defendant is going
our of the kingdom, which if he fhould do, the debt muft be
loft.
Note. It hath been held an abufe of this procefs to break
open doors and take the party in bed ; but yet the court for
this caufe would not order him to be fet at liberty.
The Form of the Writ ne exeat regno.
George the Third by the grace of God, of Great Britain^
France , and Ireland king, defender of the faith, and fo forth.
To our fheriff of Middle/ex greeting. Whereas it is repre-
fented to us in our Chancery, on the part of A. B. complai-
nant, againft C. D. defendant ; (among other things), that
he the faid defendant is greatly indebted to the faid complai-
nant, and defigns quickly to go into parts beyond the feas,
(as by oath made on that behalf appears), which tends to the
great prejudice and damage of the faid complainant. There-
fore in order to prevent his injuftice, we do hereby command
you, that you do without delay caufe the faid C. D. person-
ally to come before you, and give fufficient bail or fecuriiy
in the fum of that the faid C. D. will not go, or
attempt to go into parts beyond the feas, without leave of
pur faid court, and in cafe the faid C. D. (hall rcrufe to give
fiich bail or fecurity, then you are to commit him, the faid
v*. JL/»
538 NE EXEAT REGNO.
C. D. to ouf next prifon, there to be kept in fafe cuftody
until he {hall do it of his own accord, and when you fhall
have taken fuch fecurity, you are forthwith to make and
return a certificate thereof to us in our faid court of Chan-
cery diftinctly and plainly under your feal, together with
this writ, witnefs ourfelf at WefiminJleV) the day of
in the year of our reign.
( 539 )
CHAPTER THE SEVENTY-FOURTH.
Writ of Injunflion.
AN injunction is a writ remedial in nature of a prohibition;
and it may be granted either to flay proceedings at law,
or to ftay wafte or damage to the freehold or inheritance of
another by felling timber, &c. ; or it may be to yield up, quiet
or continue the pofleffion of lands, &c. But this latt fort of
injunction is a judicial writ, and fubfequent to a decree, being
in nature of a writ of execution or habere facias pojfeffionem :
But fometimes, in ordinary cafes, injunctions are granted to
quiet pofleffion before hearing to the party having the fame.
Alfo, if goods are taken, or money levied or paid in exe-
tion, and in the fheriff ' s or other officer's hands, this court will
fometimes ftay them there by injunction ().]
All injunctions are commonly granted and difTo'vrd upon
motion : But in the long vacation when the court c'o not lit,
and no motion can be had, a bill being filed, and the def nd-
ant cutting down trees, or committing watte which he has ho
right to do, upon affidavit of the fa£t, the Lord Chancellor in
that cafe will upon petition grant an injunction to Itay the
defendant from cutting down trees, or committing wafte.
An injunction is commonly obtained by order, upon motion,
either upon matter confeffed in the defendant's anfwer, or upon
fome matter of record, or fome deed, writing or other evi-
dence produced in court, whereby it appears there is a p oba-
bility, that the party ought to be difcharged in this court from
fuch fuit. But an injunction after the defendant has anfwer-
ed, is never obtained without giving two days notice in writ-
ing, to the defendant's clerk in court of fuch motion, to the
end that the defendant may by his counfel defend the fame, as
he thinks ftt.
If the injunction required is to flay proceedings at law, the
common injunction of the court will be granted upon an at-
tachment for want of appearance, or of an anfwer, or upon
a dedimus to take an anfwer in the country, or upon a defend-
ant's praying time to anfwer. An injunction likewife will be
granted where a debt is ftale, and the defendant hath flept
long ; or where the creditor and debtor have been dead long
before the fuit ; or where the defendant cannot be found to be
ferved with the fuhpeena \ but in all cafes where the anfwer is
put in, you ought to give notice as before.
If the defendant doth not appear in time, then you may
draw and ingrofs an affidavit of ferving the fubpeena, and let it
be fworn and filed ; upon which you get an attachment iffued
tor want of appearance ; and then you give inftructiens to
counfel to move thereon, which is granted of courfe. But
thefe injunctions generally give the liberty to call for a plea,
and proceed to trial, and for want of plea to enter up judge-
ment ; but execution is thereby ftayed. But when the defend-
ant is ferved with fuch injunction, and he has not arelted the
plaintiff, nor filed his declaration, he cannot, after ferved with
iuch injunction, arreft the plaintiff nor file a declaration •, if
[t>) Ord. Can. 123,.
fee
12
542 WRIT OF INJUNCTION.
he does, he is guilty of the breach of fuch injunction, and
the court will commit him for breach thereof in the fame
manner, as if there had been no fuch claufe in fuch injunc-
tion.
But if the defendant appears in time, and does not anfiver
in time, then, on an attachment for want of an anfwer, or
upon the defendant's craving a dedimus to anfwer in the coun-
try, or a defendant getting time to anfwer, an injunction will
be granted in like manner ; which is generally until anfwer
and other order. And fuch injunctions have generally the like
claufe as before, of giving the defendant liberty to call for a
plea, &c.
[An injunction of courfe may be had, for want of an an-
fwer to an amended bill, an anfwer having been put in to the
original bill, and no injunction obtained upon that. 13 Vef.
323. 3 Barnard. 322.3
- [But when an injunction has been diffolved upon the merits,
or for want of the plaintiff's {hewing caufe why the injunction
fhould not be diffolved on the defendant's order «///, he can-
not bv amending his bill, and the defendant obtaining a
dedimus to take his anfwer to the amended bill, move for an
injunction, for if he could, he might amend his bill toties quo-
ties, and by that means keep up the injunction, againft the
defendant in infinitum. But if on the coming in of the an.fwer
to the amended bill, fufficient grounds are difclofed, the
plaintiff may move for an injunction on the merits (q).~}
[Where the plaintiff obtains an injunction of courfe, until
anfwer and further order, and the anfwer afterwards is re-
ported inefficient and the plaintiff obtains an order to amend his
bill, and for the defendant to anfwer the exceptions and amend-
ments at the fame time, the defendant mufl anfwer both, before
hecan apply to diffolve the injunction ; but if the defendant puts
in a further anfwer, upon the fir ft anfwer being reported in-
fufficient, and before the plaintiff had obtained an order to
amend, and for the defendant to anfwer the amendments and
exceptions together, the injunction muft ftand or fall upon
the original bill, and the anfwer thereto. 1 Dick. 255.]
The rule is, that where a plaintiff is abroad, and you want
an injunction againft his proceeding at law, in a certain ftage,
you get it upon affidavit. The plaintiff in equity in fuch a
cafe, muft itate the whole of his cafe within his knowledge
upon the original bill, and he cannot after anfwer, upon
(q) 3 Atk. 694.. 2 Vef. 19. 3 Bro. C.C. 42^.
which
WRIT OF INJUNCTION. 543
^hich he neither moved, nor excepted, have the injunction
upon amendment and affidavit. This is a general rule, but fub-
ject to exceptions as circumftances come to his knowledge fub-
fequently (r).]
[The plaintiff filed his bill againfl the defendant, to flay
him from printing fome of his works ; and obtained a fpecial
injunction, the defendant anfwered and afterwards the plain-
tiff amended his bill ; it was infilled by the defendant, that the
plaintiff having amended his bill, the injunction was gone of
courfe. Held that the injunction did not drop of courfe upon
the plaintiff's amending his bill. 2 Dick. 536. et vide 3 Anftr.
651.]
After an appearance and anfwer, the court muft be applied
to for an injunction on the merits ; in which cafe you muft
draw a brief of the pleadings for counfel, and give notice of
motion in writing for fuch injunction to the defendant's clerk
in court.
An injunflion upon an attachment, dedimus, or upon the de-
fendant's praying time to anfwer, does not extend to ftay pro-
ceedings in the Spiritual court, without fpecial order (j-), nor
in the Admiralty court (t).~\
[If an injunction be wanted to flay w.ifte or other injuries
of an equally urgent nature, then upon the filing of the bill, and
a proper cafe fupported by affidavits, the court will grant an
injunction immediately to continue till the defendant has put in
his anfwer, and till the court fhall make fome farther order
concerning it ; and when the anfwer comes in, whether it
{hall be diflblved or continued till the hearing of the caufe is
determined by the court upon arguments drawn from confider-
ing the anfwer and affidavits together (?*')•]
[4n injunction to reflrain the defendant from negotiating or
parting with the note, pendente lite, was granted upon filing of
the bill, b^Oi t fubpoena ferved (.v).]
[An adminiftrator having declared that as foon as he had re-
ceived money of his inteftate, he would be off, an injunction
W<*s granted to reflrain him from receiving it, upon affidavit
before fubpoena was ferved (>')•]
[An injunction was granted before anfwer, on behalf of
(r) ti Vef. 565. ().]
[But on an affidavit by the plaintiff that he believes a difco-
very will aiife out of the defendant's anfwer, which will ena-
ble him to make a defence at law, the court will extend the in-
junction to ftay trial till anfwer (q) ; and the court has done
this, even where the defendant was refident in the Eaft-Indies,
and confequently a very long time, before his anfwer could be
g ot in ( r )-3
[An injunction to ftay trial cannot be had in the firft in-
ftance. The common injunction muft be had, and then
a motion to extend it to ftay trial ( s).]
(/?/) I Cha. Ca. 203. But in the Exchequer, it Hays all
(«•) Hind. 995. further proceedings, be the caufe
(c) 3 Bro. C. C. 12. 2 Bro. in what flate it will.
640. 4 Vef. 359. fed vide 3 Bro. (q) 2 Vef. 620.
C C. 24, where it was held fuf- (r) Rivet v. Braham in Chan-
ficient, if the affidavit accompany eery, July 1789.
the motion for the Injunction. (s) 3 Bro. C. C. 87. and IO
(/>) 10 Vef. 451. 2 Keb. 17. Vef. 450.
[Where
WRIT OF INJUNCTION. 547
[Where bail is put in above, an injunction to Pay proceedings
againft the principal, extends to itay proceedings againft the
bail ; when the bail is only put in below, it extends to (lay
proceedings on the bail bond (/).]
[An injunction to (lay proceedings at law extends to prevent
a fun againft the fherff for not paying over fuel) money levied
under an execution in the original luit, before the injunction iffu-
ed ; but it mult be paid into court (w .]
[An injunction cannot be extended to one who is not a par-
ty to the fait ; as where an a£tion was brought by the holder
of a bill of exchange againft plaintiff the acceptor ; he filed
his bill and obtained dn injunction for want of an anfwer ; rhe
holder of the bill then returned it to the indorf-r, who brought
a frefh action, and the court refufed to extend t!ie injunction
to him (#).]
If an injunction is obtained upon filing of the bill, or on an
attachment for want of an appearance or anfwer, then obferve
to put in a fufiicient anfwel ; and pay or tender the cods of
the attachment to the plaintiff's clerk in court, which are ten
(hillings ; and fo foon as the anfwer is filed, give instructions
to counfel to move to diribive the injunction nift, and draw up
and enter your order thereon, and ferve it upon the plaintiffs
clerk in court. And if on the diy to fhew cafffe, no caufe is
(hewn, the iniundtion will be difiblved of courts, on motion
of the defendant's counfel, and producing an affidavit filed of
the fervice of fuch order mfi.
[Upon motion to diflblve an injunction ivft at the la ft feal
after Trinity Term, the plaintiff cannot have time till the next day
ot motions, upon the ufual undertaking to fhew caufe upon the
merits ; but was ordered to fhew caufe during the petitions, f y\~]
If caufe is fhewn upon the merits, the injunction is fome-
times continued till the hearing. And if the plaintiff has filed
exceptions to the anfwer, and fhews them for caufe, then he is
fometimes ordered to procure the Matter's report in a week, but
ufually in four days ; or in default thereof, the injunction to
ftand diffolved, without further motion. And if the Matter (hall
report the defendant's anfwer infufficient, the injunction will
be continued, till he anfwers the exceptions.
[But the mere allegation of plaintiff, that the anfwer is in-
fufficient, is not ground to induce the court to continue the in-
junction. 1 Vef. 454.]
(t) Ambl. 32. Wy. Praft. (x) 2 Anftr. 521. 555.
Reg. 250. (y) 5 Vet'. 552.
(w) 2 Anftr. 556. 569.
N n 2, If
54 8 WRIT OF INJUNCTION.
If the contempts be not cleared, (that is, the cofts not
pnd), or if the anfwer be not filed ami all equity denied; or
if the exceptions are put in, and the anfwer reported infuf-
cient, any of thefe are good caufes againlt diffolving the in-
junction.
[A reference of the anfwer for impertinence is a good caufe
againft diffolving the injunction. 12 Vef. 18]
If there be two defendants againft whom an injunction is
oh.ained, the court will feldom diflblve the injunction, till both
have anfwered (2) Alfo the court has refufed to diflolve the
injunction becaufe exceptions came in only the night or morn-
ing before motion to d flblve.
Alfo, where the plaintiff has equity on his fide, or his cafe
feems hard, the court will not eafily diflblve the injunction ; nor
will they commonly diflblve it the la ft feal after term •, nor is it
ever diflblved, but upon motion of the adverfe party.
Unreafonable delay is a good caufe for diffolving an injunc-
tion for Maying proceedings at law ; and yet the court will fome-
times, upon motion revive it, although diflblved ; efoecially
where the equity appears evidently with the plaintiff, or his cafe
is hard.
An injunction for want of an anfwer was difcharged, becaufe
the plaintiff hail kept it feveral months, and not ferved it till
after the anfwer came in (a).
On crofs bills, if when the firft is anfwered, the fecond is
not anfwered in eight days, the injunction will be diflblved.
When a plea or demurrer is argued by counfel and allowed,
there is generally, though not always, an end of the injunction ;
for fome equity may be fhewn for continuing it, arifing out of
the defendant's anfwer, put in with fuch plea or demurrer:
and upon a plea or demurrer being allowed, or on coming
in of the anfwer, the court will not abfolutely diflblve the
injunction on the firft motion, though upon affidavit of fervice;
but only nifi ; thereby giving the plaintiff liberty to fhew caufe
againft diffolving the injunction (b).
Though an injunction may be continued on exceptions, yet ex-
ceptions to an anfwer, without a report of its infufficiency are not
a fufficient caufe for obtaining an injunction j for they are often
put in for delay.
[Where there is a verdict at law, and the defendant exhibits
his bill for relief here, the money muft be depofited here before
an injunction will be granted, except in fome cafes, where
2) Vide Barnard. ,3 54. (b) Vide Wy. Pract. Reg. 243.
a) 2 Keb. 43. 2$$. m
fpecial
WRIT OF INJUNCTON. 549
fpecial matter of equity appenrs by the defendant's anfwer, or
fome former decree or fucn like (c) ]
The court will not continue an injunction againft the penalty
of a bond, unltfs the money fworn to be due by the anfwer
be brought into court, or judgment confeffed at law with re-
leafe ot errors ; and if the plaintiff be not of ability, the court
will fuffer the defendant to proceed at law to a fecond fcire facias
to make the bail liable to an action on the cafe (d).
[Where a verdict has been obta ned at law, and the defendant
in equity is refident abroad, and an injunction has been obtained
for want of an anlwer, the court will upon the application of
the defendant before anfwer, order the money recovered by the
verdict to be brought into court, or the injunction to be dif-
folved. But it feems that an affidavit is neceffary to contradict:
the allegations in the plaintiff's bill (V).]
[The defendant having prayed a dedimus, the complainant
moved for an injunction : the court, though the defendant had bail at
laiVy would not grant it on other terms th ).]
[Judgment at law on a bail bond : a bill here, and injunction.
The di fendant fwears eight pounds due for work done. The
money was ordered to be brought into court, &c. though the
court inclined to have the injunction continued without that,
feeing that tnere was a judgment at law : But in regard it was
fo fmall a fum, it was ordered to be brought in (/).]
[The bill alledges that the plaintiff is indebted 10 the defend-
ant 50I. and the defendant 50I. to him ; that the defendant is a
priloner in the Fleet, fues at law, has an interlocutory judgment,
and will not pay or allow what he owes. The plaintiff prays
an acccount, &c. and has an injunclion. The defendant by his
(c) Wy. Praft. Reg. 237. (/) Wy. Pra£. Reg. 237.
\d) Chan. Ca. 444. Vide h) Ibid. 238.
Wy. Praa. Reg. 240. (A) Ibid. 242.
{e) 2 Bro. C. C. 14, et 182. (i) Ibid. 240.
Nn j anfwer
55 o WRIT OF INJUNCTION.
anfwer fays lie returned the money due to the plaintifF to him
at London in December tail. The plaintiff produced the bond,
by which it appeared the money was nor payable till April next.
The court ordered, that upon giving final judgment at law for
2ol- the fum demanded there, and a rekafe of errors in four
days, the injunction ftands {k .]
[If money be recovered at law, and the defendant brings his
billto be relieved here, on condition the plaintiff pay the money
and coils recovered at law into court here, fubjec\ to order on
hearing, this court will commonly order an injunction, and will
in the mean time flay execution, and give fome time for paying in
the money ; wit/? this fnrther, that the defendant here be at li-
ber r y to affirm his judgment, if a writ of error be depending;
or if there be none, the complainant to give a releafe of
errors (/).]
[The defendant here had judgment at law : the complainant
had brought a writ of error, and then brings his bill here, and
has an injunction. The defendant being in no contempt, but
having taken a dniimus, prays leave to affirm his judgment. It
was granted him ; but he to proceed no further till further
order (m) ]
If a man prays an injunction to flay proceedings at law on a
bond, he (hall not have it, except he wiii give judgment and be
bound by order to bring no writ of error (»).
[Though an affidavit is not ordinarily to be read againfl an
anfwer, (0) yet affidavits were allowed to be read for the patentee
of a new invention, on a motion to diffolve an injunclion on
coming in of the anfwer, on account of the great prejudice
thar would accrue to the party, w-re the injunction to be dif-
folved, and the book allowed to be difperfed and fold by the de-
fendant (/>) ] •
[On a motion to diffolve an injunction to flay wafle, upon the
coming in of the anfwer, affidavits were allowed to be read
againll the anfwer, in order to fupport the injunction (q)-']
[Affidavits were permitted 10 be read upon application for
an injunction to rdirain execution on a verdict at law after the
anfwers were come in, in a cafe of collufion ch?rg^d between
the plaintiff and defendant at law in obtaining the verdict, the
defendant being an executor, and the bill being brought by the
reiiuuary legatee of the teltator (;•).]
(7 ) Wj, Praa. Reg. '240. (/>) 3 P. W. 255.
(/) I :d. 241 lq) ib:d in notjs.
(m) Ibid. (/•) 2 Bro. C. C. 463- Sed
(«) 1 Vera 120. vide 9 Vef. $56.
\o) Wy. Puidt. Reg, 238. lAn
WRIT OF INJUNCTION. 551
f_ An injunction had been obtained, to prevent the negotiation
of a bill of exchange ; the plaintiffs, upon (hewing caufe aguimt
difiblving the injunction, would have read affidavits} but the
court held they could not be read (j - ).]
[If an injunction be diffolved, yet if there be caufs, it may
be revived on motion (/).]
In an injunction caufe, where it abates by the death either
of the plaintiff or defendant, the rule is, that the court be
moved to revive within a Hated time, or the injunction be
diflblved.
After two verdicts on tria?s at bar, in favor of the plaintiff's
title, a perpetual injunction was decreed according to the dfe of
the Lord B^th and Shervvin in Dom. Proc. ; which practice was
introduced, that the right might be quieted in ejectments, (where
at law the party is always at liberty to bring a new one,) as it was
in real actions, where the verdict was final •, and this was af-
firmed in the Houfe of Lords («). The reporter, by way of
note fays, that there had been fevcral country verdicts to the
contrary ; but the trials at bar were laft.
A perpetual injunction will the rather be granted, where the
court directs the trial, or where the caufe, agaiaft which the
verdids are found, is odious it its nature (x).
A perpetual injunction was granted againft a bond of co
years fUnding (y).
A bill of exchange was drawn upon the plaintiff at Leghorn,
which he accepted ; but by the law there, if a bill be ac-
cepted, and the drawer fails, and the acceptor hath not fuf-
ficient effects of the drawer in his hands at the time of the
acceptance, the acceptance becomes void; and this happening
to be plaintiff's cafe (in order to difcharge himfelf from this
acceptance) he inltituted a fuit at Leghorn, and his acceptance
was thereby vacated by a fentence in that court. Afterwards
the plaintiff returning to England, was fued here upon this bill,
and thereupon lie exhibited his bill for an injunction and relict :
and Lord Chancellor King granted a perpetual injunction (2).
On a bill taken pro confejfo % by reafon of the defendant's con-
tempt in ftanding out aii procefs, if it prays an injunction to
quiet poOcflion, or to ftay proceedings at law, the court will
decree a perpetual one.
If the party, or his attorney proceed at law after fervice of
{•0 9Vef. 353. (y) Finch, 77.
{/) Wy. Pract. Reg. 242, (z) 2 Eq. Ca Abr 524. For
(«) 1 Stra. 404. ct I P. W. more relating to this fubject, vide
671. 2 Eq. Ca. Abr. from p. 522, to
{.v) j P.W.673. 5 2 9-
Nn 4 injunc-
552 WRIT OF INJUNCTION.
injun°ion to flay proceedings, on affidavit fworn, and filed
of the fervice thereof, an attachment iflues again ft the party
for breach of the faid injunction. And if he be arretted on the
faid attachment, and enters his appearance with the Regifter
on the faid attachment, interrogatories are to be filed . {d) 1 Vern. 207.
manding
5C| WRIT OF INJUNCTIONS
manding you to appear to and anfwer the faid bill, have ap-
peared, but for delay have craved a commifTion to anfwer in
the country ; and yet in the mean time, you unjuftly (as is al-
ledged) profecute the faid complaints at law. for and touch-
ing the matters in the faid bill complained of : We therefore,
in confideration of the prermfes, do hereby ftricllv command
and injoin you the faid E. F. defendant, and all and every the
perfons before mentioned, under the penalty of two hundred
pounds, to be levied on your and each of your lands and tene-
ments, goods and chattels, to our ufe, that you and each of
you do henceforth abfoiutely defift and forbear from all fur-
ther proceedings al law againft the faid complainants, or either
of them, touching any of the matters in the faid bill complain-
ed of, until you the faid defendant E. F. fhall fully anfwer the
faid complainants' bill, and this court make other order to the
contrary ; and this you nor either of you are in any wife to
omit, under the penalty aforefaid : But nevcrtheiefs the faid
defendant E. F. is at liberty to call for a plea, and proceed to
trial thereon, and for want of a plea_to enter up judgment ;
but execution is hereby flayed. Witne;s the King at Weil'
minfler, the day of in the year of his reign.
Order for an Injunction on an Attachment.
At the Rolls. 1 Thurfday the day of in the
Matter of the > year of the reign of our Sovereign Lord
Rolls. J King George the Third. Between A. B.
plaintiff, and C. D. and E. F. defend-
ants.
Forafmuch as this court was this prefent day Informed by
Mr. being of the plaintiff's counfel, that the defend-
ants being ferved with procefs to appear to and anfwer the
plaintiff's bill, refufe fo to do, are in contempt to an attach-
ment for want thereof, and yet in the mean time profecute the
plaintiff at law for the matters in the bill complained of: It is
thereupon ordered that an injunction be awarded againft the faid
defendants, for Hay of their proceedings at law, for and touch-
ing any matters here in queflion, until the faid defendants
fiiall appear to and fully anfwer the plaintiff's bill, clear their
contempt, and this court make other order to the contrary :
But the faid defendants are in the mean time at liberty to call
for a plea, and proceed to trial thereon, and for want of a
plea to ent^r up judgment ; but execution is hereby flayed.
Docauet
WRIT OF INJUNCTION. 555
Docquet for an Injunction on an Attachment.
The kin?, and fo forth ; To thc'rr connfellors,
attornies, folic itors, and agents, greeting. Whereas it is re-
.prefented to us in our court of Chancery on the part of A. B.
complainant, that he huh lately exhibited his bill of complaint
in our faid court of Chancery again (I you the faid C. D. and
E. F. defendants, touching the matters therein contained ; and
that vou rhc faid defendants being ferved with a writ, iff ling
out oi our faid court, commanding you to appear to and an-
fwer the f ud bill, have not obeyed the fame, hut are in con-
tempt to an attachment, for not appearing to and anfwering
the faid hill ; and yet in the mean time you unjuftly, as is al-
Ifcdgerf, p-ofecute the faid complainant at law, touching the
matters in the faid bill complained of: We therefore, in con-
federation of the premifes, do ftriclly injoin and command you
the faid C. D. and E. F. and all and every the perfons b-Jore
mentioned, under the penalty of two hundred pounds, to be
levied on your and each of vour lands, goods and chattels, to
our ufe, that you and each ot you do abfolutely defift from
all farther proceedings at law againft the faid complainant.
touching any of the matters in the faid bill complained of, until
you and each of you fhall appear to and fully anfwer the com-
plainant's faid bill, clear your contempts, and this court make
other order to the contrary ; but neverthelefs the fail defen-
dants are at liberty to call for a plea, and proceed to a- trial
thereon, and for want of a plea to enter up judgment ; but
execution is hereby flayed. Witnefs the King at Wejlm'wfler
the day of in the year of his reign.
The Form of a Writ of Injunction.
George the Second, by the grace of God, of Great Britain,
France^ and Ireland, King, defender of the faith, and fo forth ;
To his councilors, attornies, folicitors and agents, and
every of them, greeting. Whereas it hath been reprefented
unto us, in our court of Chancery, on the part of ,
complainant, that he hath lately exhibited his bill of complaint
into our faid court of Chancery againft you the faid ,
defendant, to be relieved touching the matters therein con-
tained ; and that you the faid defendant being ferved with a
writ, iffuing out of our faid court, commanding you to appear
to and anfwer the faid bill, * have net obeyed the fame, but ere
in contempt to an attachment for not appearing to and anfttiering
* Jf injunction on a dedsmut, &c. (Vide pof.)
the
556 WRIT OF INJUNCTION.
the /aid bill ; and yet in the mean time you unjuftly, as is al-
ledged, profecute the faid complainant at law, touching the
matters in the faid bill complained of: We therefore, in con-
federation of the premifes, do flri£tly enjoin and command
you ihe faid , and all and every the perfons before men-
tioned under the penalty of two hundred pounds, to be levied
on your and every of your lands, goods and chattels, to our
ufe, that you and every of you do absolutely defid from all
fariher proceedings at law againft the faid complainant, touch-
ing any of the matters in the faid bill complained of, until
you the faid defendant fhall have fully anfwered the faid bill,
cleared your contempt, and our faid court fhall make other
order to the contrary : But neverthelefs, the faid defendant
is at liberty to call for a plea, and to proceed to trial there-
on ; and for want of a plea, to enter up judgment; but exe-
cution is hereby flayed. Witnefs ourfelf at Wejiminjler this
day of in the year of our reign.
On a Dedimus.
(a) Tu * which bill you the faid defendant have appeared,
but for delay have craved a commiffion to take your anfwer
in the country.
Cn an Order for Time.
(b) To which bill you the faid defendant have appeared,
but lor delay have obtained an order of our faid court for
time to anfwer the fame ; and )et in the mean time profe-
cute, &c.
On an infujjicient Anfwer.
(c) To which bill you the faid def< ndant have appeared,
but for delay have put in an infufheient anfwer ; and yet i
the mean time profecute, Sec.
in
On an Attachment for want of an Anfwer.
To which bill you the faid def ndant have appeared, but
have not anfwered the fame, and are in contempt to an at-
tachment for want thereof ; and yet in the mean time pro-
fecute, &c
* Note; In the injunctions mark- to be left out (viz.) have cleared
e d f a \ (£) (e Second, &c. To A. B. and his workmen, la-
bourers, fervants and agents, and each and every of them,
greeting. Whereas it hath been reprefented unto us in our
court of Chancery, in a certain caufe there depending, where-
in C. D. is complainant, and you the faid A. B are defen-
dant, on the p ,rt of the faid compHm nt, that, &c. [as in the.
order]. We therefore, in confideration of the premifes
aforefaid, do ftnd y injoin and commmd you the faid A. B.
and your workmen, labourers, fervants and agents, and all and
every one of you, under the penalty of one thoufand pounds,
to be levied upon your and each and every of your lands, goods
and chattels, to our ufe, that you and every one of you do
from henceforth altogether abfolutely defift from felling or
cutting down any timber or other trees, ftanding, growing or
being in or upon the premifes is qi " : - 1, or from committing
or doing any other or further wafte or fpoil in or upon the
faid premifes, or any part thereof, until our faid court (hall
make other order to the contrary. Witnefs, &c.
A fpecial Injunction to Jlay Execution till the Hearing.
George, &c. To C. D. his counfellors, attornies, foli-
citors and agents, and every of them, greeting. Whereas it
hath been reprefented unto us in our court of Chancery on
the part of A. B. complainant, againft you the faid C. D. de-
fendant, that the complainant being, &c. [Jet forth the allegation
as in the order'] therefore it was prayed that the complainant
might have an injunction for flay of your the faid defendant's
proceedings at law until the hearing of the caufe : We there-
fore in confideration of the premifes aforefaid, do ftrictly in-
join and command you the faid C. D. and all and every the
perfons before mentioned, under the penalty of one thou-
fand pounds, to be levied upon your and every of your lands,
goods and chattels, to our ufe, that upon the faid complai-
nant's giving unto you the faid defendant C. D. judgment on
the faid bond, with a releafe of errors (and contenting not
to bring any writ of error) fubje£t to the order of our faid
court, that you and every of you do abfolutely defift from
taking out execution againft the faid complainant uutil the
hearing of this caufe by our faid court of Chancery. Wit-
nefs, &c.
A fpe*
558 WRIT OF INJUNCTION.
A f penal Injunclion to flay the Defendants from copying, engravings
&c. and felling of Prints > purfuant to an Atl of Parliament 8
Geo. 2.
George, &c To , and alfo to their and every one
of their fervants, workmen and agents, to all and every of
them, greeting. Whereas on the day of , and
on the day of laft, it was alledged to us in
our court of Chancery, by counfel on behalf of and
his wife, plaintiffs, againft you the faid , de-
fendants, that by an a£t of parliament made in the eighch year
of our reign, it is (amongfl other things enacted,) that irom
and after the twenty-fourth day of June one thoufand feveii
hundred and thirty five, every perfon who fhouid invent and
deficn, engrave, etch or work in meizotinto or chiaro objcuro, or
from his own works and inventions fhouid caufe the fame (o to
be done, mould have the fole right and liberty of printing
and reprinting the fame for the term of fourteen years,
to commence from the day of the firft publishing there-
of, unlefs by the confent of the proprietor firll bad in writing,
and figned in the prefence of two or more credible witneffes,
under the penalties in the faid a£t particularly mentioned :
That the faid plaintiff , fince the faid twenty-fourth day
of June one thoufand feveh hundred and thirty five, hath
with great labour and expence invented, defigned, etched and
engraved about prints, being the reprefentations of, &c.
And on the day of I 737> publifhed four of the
faid prints, reprefenting and
; and that notwithstanding the faid aft of parlia-
ment, you the faid defendants have copied, publifhed and fold
the faid four laft mentioned prints, as by the affidavit of the
plaintiff read, appeared ; to be relieved wherein, the
faid plaintiffs have exhibited their bill in our faid court of
Chancery againft you the faid defendants, as by the Six clerks*
certificate appeared, and you the faid defendant having
put in your anfwer thereto, thereby admit to have fold and
publifhed the faid prints, but fay they were fent to you by the
faid defendant , and that as foon as you were informed of
the faid plaintiff's right you fent them back again : We having
regard to the matters aforefaid, and on reading affidavits of no-
tice of the faid motions, do therefore ftridly command and
injoin you the aforefaid defendants
and your fervants, workmen and agents, and all and
every of you, under the penalty of one thoufand pounds, to
be levied upon your and each of your lamis, goods and chat-
12 tels,
WRIT OF INJUNCTION'. 559
tels, to our ufe, that you, and e^ch, and every one of you, do
from henceforth altogether dcfnl from copying, engravingj
etching, working, publishing and felling all or any of the
aforefiid prints, until the further order of our faid court of
Chancery. Witnefs, &c.
A Writ of Injunction for the Defendant to deliver Pojfejfion of Lands
to the Plaintiff, purfuant to a JOecra.
George the Third, kc. To C. D and all other perfon and.
perfons whatfoever, who are in pofieffion of, or have or claim
any right, title or interred whatfoever of, in or to all or any
part of the meiTuage, lands, tenements or promifes in queftion,
greeting. Whereas it hath been ri-prefented to us in our
court of Chancery, in a cattle wherein A. B. and E. his wife
are complainants, and you the faid C. D. are defendant,
chat by the decree made in this caufe it was ordered, that you
the defendant C. 1). ihculd deliver pofleffion of the premiums
m queftion, and all deeds arid writings in your cuflody or pow-
er relaiing thereto, to the faid complainants ; that you the de-
fendant, who are in poffefhon of the meffuage and lands in
queftion, were ferved with a writ of execution of the faid de-
cree, and have been required to deliver pofieffion pS. the mef-
funge and lands, which you refafe to do ; and a commidion
of rebellion having been made out againft you the defendant;,
and returned, that you the defendant are not to be found, it
was ordered, x that an injunction be awarded againft you the
faid defendant, to injoin you to deliver pcii'eiTion of the faid
mefiuage and lands to the hud complainants, purfuant to the
faid decree : We therefore, in conficieratiou of the premifles,
do itridtly injoin and command you the faid defendant C. D.
and all and every other perfons before named, under the penal-
ty of one thoufand pounds, to be levied upon your, each and
every of your lands, goods and chattels, to our ufe, that ycu,
each and every of you, do deliver thepoffeflionof the faid meiTuage,
lands and premises, and of every part and parcel thereof, to
the faid complainants A. B. and E. his wife, purfuant to the
faid decree : And hereof fail not at your perii. Witnefs, &c.
( 5<*° )
CHAPTER THE SEVENTY-FIFTH.
Writs of Certiorari, and Procedendo.
A CERTIORARI is a writ out of Chancery, to an inferior
court of record, to remove and certify the record of a
caufe.
Two plaintiffs here fue for lands in the county palatine of
Durham ; one of them lives in Middlfex, and the other is an
old infirm man, and unable to follow the fuit ; therefore a
certiorari was granted to the chancellor of Durham to certify
the proceedings depending before him into this court, (a) Fide
Certiorari Bills.
A Writ of Certiorari.
George the Third, &c. To the Mayor and Aldermen of
London i greeting. We willing, for certain caufes to be certifi-
ed of and upon a certain petition or bill of complaint before
you, againft C. D. and E. F. at the fuit of A. B. lately exhi-
bited, and now depending, command you that the petition
or bill aforefaid, with all things touching the fame, by what-
foever names the parties aforefaid, or any, or either of them,
are or is let down, before us in our Chancery, truly, fully and
exadly, as in your cuftody they now remain, under your
feals diftin&ly and openly ye fend immediately, and this writ,
that further thereof we may caufe to be done, that which of
right ought to be done. Witnefs ourfelf at Weftminfter the
day of in the year of our reign.
Note, this is an open writ, upon a double 5s. 6d. fhmp.
f By the Lord High Chancellor of Great Britain.
Indorfe, •<
£In the matter of C. D. and another.
2i Feb. 1767. This writ allowed by the court [meaning
the Lord Mayor's court.]
The anfwer of Sir , Knt. Lord Mayor, arid the
Aldermen of the City of London.
(a) Cha. Rep. 68.
5 A procedendo
WRIT OF CERTIORARI AND PROCEDENDO. 561
A procedendo is a writ directed to the judge of an inferior
court, requiring him to proceed in a caufe removed hither
by certiorari, &c. on the plaintiff's fuggeftion not bein^ fuf-
ficiently proved. Alfo it is ufed, where the caufe is flayed for
a time by a fuperfedeas.
Vol. I. O o
( & J
CHAPTER THE SEVENTY-SIXTH.
Writ of Homine Replegiando.
THIS writ is feldom ufed. It lies againft one who clan-
deftinely takes or conveys away, or keeps in his cuf-
tody, another perfon againft his will or confent. It is ob-
tained on affidavit of the matter, and petition or motion to
the Lord Chancellor : And it is fometimes brought, where in-
fants have been taken out of the cuftody of their guardians ;
&c. and this court, 'tis faid, may proceed herein by order
without writ.
[The writ de homine replegiando is an original writ, and may
be fued out of right, and i? granted on motion or petition,
without {hewing caufe ; it is properly returnable in the courts
of law, and may be there declared upon, after it is fued. I
do not know that I can fuperfede it. P. Lord Hardwicke, Tre-
blecock's cafe, i Atk. 633 ]
An infant was fent into France by his uncle, without the
eonfent of the guardian ; a homine replegiando was awarded,
and the uncle ordered to fend for the boy back again (a).
A wife can't either by herfelf, or prochein atny, bring this
writ againft her hufband-, for he has by law a right to
the cuftody of her, and he may, if he thinks fit, confine
her, but he muft not imprifon her ; if he does, 'twill be
good caufe for her to apply to the fpiritual court for a
divorce propter fevitiam. But the nature and proceedings in
a writ de homine replegiando are fuch as can't be maintained
by a wife againft her hufband {b). Where feveral perfons
were appointed guardians of a young woman, and one of
them got her (being nine years of age) married ; the court
granted this writ againft the guardian and the hufband, but
■sas to the young woman, the court made an order for the
guardian and hufband to produce her in court on a day
certain (c).
(a) 2 Cha. Ca. 237. (r) Fitzgib. 106.
(b) Gilb. 149.
C S 6 3 )
CHAPTER THE SEVENTY-SEVENTH.
Writ of Supplicavit.
THIS is a writ wholly appertaining to, and is made out by the
prothonotary of, Chancery ; it is granted upon complaint
and oath of the party, where any fuitor of the court is abufed
and ftands in danger of life from another fuitor. The con-
temner is taken into cuffcody, and mull give bail to the Sheriff;
and if he moves to difcharge the writ, the court hears both parties
on affidavit ; and continues it or not, as the cafe appears.
[The court will not difcharge a fttpplicavit on affidavits de-
nying the fact ; nor in any cafe, but where there appears to be
a combination and contrivance (a).']
If they order the contemner to give fecurity for his good
behaviour (for this writ is in nature of Lord Chancellor's war-
rant to apprehend a man for breach of the peace), he muft
do it by recognizance before a Matter, who muft be in the
eommiffion of the peace , and he is to find fureties for good
behaviour. If he beats or affaults the party a fecond time, the
court will order the recognizance to be put in fuit, and per-
mit the party to recover the penalty ; for the recognizance is
never to be fued, but by leave of the court. But this proceed-
ing very rarely happens.
One that was taken on a fupplicavit, and continued a year in
prifon without any frefh threatening, ought to be difcharged,
for nothing is more opprefTive, than indefinite imprifonment ?
(a) Amb. 240. (b) 3 P.W,*03.
Ooj
( 5*4 )
CHAPTER THE SEVENTY-EIGHTH.
Bills and Anfwers.
[J Bill agahijl the Heir by the Devifee to prove the Will.
TO the Right Honour able John Lord Eldon,
Baron Eldon of Eldon in the county of
Durham, Lord High Chancellor of Great Bri-
tain.
Humbly complaining, fheweth unto your Loidmip your ora-
trix A. B. of the parifh of in the county of
the widow and devifee named in the laft will and teftament
of W. H. B. late of the faid parilh of gentleman, de-
ceafed, That the faid W. H. B. being in his life time, and
at the refpe&ive times of making his will herein-after fet forth,
and of his death, feifed of a confickrable real eftare, and
being of a found mind, memory and underllanding, duly made
and pubiifhed his laft will and teftament in writing, bearing
date the of which was executed
as by law is required to pafs real eftates, in the words and
figures, or to the purport or effecl following, viz. [ftt forth
the ivill verbatim,'] as in and by the faid will, when produced
to this honorable court, (reference being thereto had,) will
appear; and the faid teftator W. H. B. departed this life on
or about the day of in the year >
without altering, or in any manner revoking his faid will,
leaving the faid W. B. his nephew and heir at law, a defendant
herein-after named, and your oratrix his wife, him furviving.
And your oratrix will hope that the faid W. B. would not have dif-
puted the faid will made by the teftator as aforefaid, or his
power in fo doing; but now fo it is, may it pleafe your lord-
ihip, that the faid W. B. combining and confederating with
divers other perfons at prefent unknown to your oratrix, whofe
names when difcovered, your oratrix prays may be herein in-
ferted with apt and proper words to charge them as parties
hereto; and contriving how to injure or prevent her having
the benefit of the faid devife, made to her in and by the
faid will, fometimes pretends that the faid teftator did
not make and publifh fuch will of fuch date, and to fuch
purport
BILLS AND ANSWERS. 56*5
purport and effect as is hereinbefore fet forth; or if he did,
that the fame was not fo made, executed, and attefted as the
law requires in the cafe of a will for paffing real eftates ; or if
fo, that the faid teftator was not of found and difpofing mind,
memory, and underftanding at the time of making fuch will ;
or that he had not power to devife the fame in the manner he
hath done in and by his faid will : Whereas your oratrix ex-
preffively charges (as the defendant well knows in his con-
fcience the truth to be) that the faid teftator was of difpofing
mind, memory and undcrftanding, and had good and abfo-
lute power to make fuch difpofition and devife as he hath made
thereby, and that he did accordingly make and publifh his
lad will in fuch manner and form as the law requires in cafe
of djvifes of real eftates, and therefore the faid defendant, to
defeat your oratrix of the devife therein given and made
to her, declines tontefting the faid will or the validity thereof,
during the lives of the witneffes thereto ; All which actings,
doings, and pretences of the faid defendant are contrary to
equity and good confeience, and tend to the manifeft wrong
and injury of your oratrix in the premifes. In confideration
wherof, and for as much as your oratrix cannot examine her
witnefTes or have their teitimony preferved in proof of the faid
will without the aid and afliftance of a court of equity : to
the end therefore that the faid W. B. and his confederates,
when difcovercd, may upon their feveral and refpettive oaths,
according to the belt and utmoft of their feveral and ref-
pedtive knowledge, remembrance, information and belief, a
full, true, direct and perfect anfwer make to all and fingular
the matters aforefaid, and that as fully as if the fame were
here repeated, and they particularly interrogated thereto ; and
more efpecialiy that the faid defendant may, in the manner
aforefaid, anfwer and fet forth whether the faid W. H. B. was
not in his life time, and at the refpective times of making his faid
will and of his death, feifed of the premifes before mentioned,
and what eftate he had therein, and whether teftator did not
make and publifh his la(t will and teftament of fuch date,
purport and effect;, as is herein-before for that purpofe
fet torth, or of any, and what other date, and to any,
and whatfoever purport and effect ; and whether the faid tef-
tator was not of found and difpofing mind, memory and un-
derltanding, at the time of making and publifhing his faid laft
wid and teftament; and whether the fame was not duly exe
cuted as by law is required to pafs real eftates. And whethei
faid teftator had not power fo to do. And whether faid teftator
did not depart this life at or about the time herein before I* r that
O o 3 p v rpofe
$66 BILLS AND ANSWERS.
purpofe mentioned, or at any other and what time, and
whether or not without altering, or in any and what manner,
revoking his faid will; and whether he did not leave faid W. H.
or whom in elfe, his nephew and heir at law, him furviving,
and that the faid defendant may fet forth wheth r he doth or
doth not conteft the faid will, or the validity thereof. And
ithat your oratrix may be at liberty to examine her witneffes,
with rtfpedr to the execution and atteftation of the faid will,
and of the fanity of mind of the faid W. H B. at the time
of making the fame, fo that their tefiimony may be perpetuated
and preferved. May it pleafe your lordfhip to grant unto your
oratrix His Majefty's mod gracious writ of fubpeena to be di-
rected to the faid W. B. thereby commanding him, at a cer-
tain day, and under a certain pain therein to be inferted, per-
fonally to be and appear before your Lordfhip in this honorable
court, then and there to anfwer the premifes, and to ftand to
and abide fuch order and decree therein, as to your Lordfhip
fhall feem agreeable to equity and good confeience. And your
orator fhall ever pray, &c]
The Anfiver to the foregoing Bill.
The Anfwer of W. B. Defendant to the Bill of
Complaint of A.B. Complainant.
This defendant, faving and rtferving to himfelf now and at
all times hereafter, all and all manner of benefit and advantage
of exception, that can or may be had, or taken to the many er-
rors, uncertainties, and infufficiences in the faid bill contained,
for anfwer thereto, or unto fo much thereof as this defendant
is advifed, it is any wife material to him to make anfwer unto :
3nfwering, faith, he believes it to be true that W. H. B. in the
faid bill named, was, at the refpedtive times in the faid bill
mentioned, feifed of, or well intitled to, the real eftates and
premifes in the faid bill mentioned to be devifed by the faid will,
and that faid W. H. B., being fo feifed or intitled, did at or
about the time in the bill mentioned, duly make and publifh his
laft will and teftament in writing, of fuch date, and in fuch words
and figures, or to fuch purport and effect, as in the faid bill is fet
forth. But for certainty as to contents of fuch will, this defend-
ant craves leave to refer thereto. But whether W. H. B. was of
found and difpofing mind at the time of making and publifhing
faid will, or whether fame was duly figned by him and atteited
as is by law required for pafling real eftates, or whether he de-
parted this life without revoking or altering fame, defendam knows
aot nor can fet forth, but leaves the plaintiff to fuch proof thereof
as
BILLS. 5 6 7
as fhe fhall be advifed or able to make refpe&ing fame, as this
defendant does not admit the validity of the faid will. And this
defendant further faith, he believes and admits teftator de-
parted this life at or about the time in faid bill mentioned, leaving
defendant his nephew and heir at law.]
{_A Bill to compel the Payment of a Legacy, and to oblige the Exe-
cutor to account for the Tejlatrixs perfonal tjlate.
To the Right Honourable, Sec.
Humbly comp'aining, fhew unto your lordfhip your ora-
tor and oratrix P. S. of , and M. his wife,
late M. H. fpinfter, that J. W. late of, &c. widow deceafedj
being pouVJed of a very confidqrable perfonal eftate, and be-
ing of found and difpofing mind, memory and underftandmg,
did on or about the day of duly make and
publifti her laft will and teftamcut in writing, and thereby, after
giving divers other pecuniary legacies, gave, unto your ora-
trix, by her then name and defcription of the fum of 500k
to be paid to her at her age of 21 years, or day of marriage
which mould firft happen, and as to her (hop, ttock in trade,
and utenfils thereunto belonging, coods, plate and turnirurt
which mould be in or about her houfe at the time of her death,
together with her wearing apparel of all forts, and all and
every fum and fums of money, debts by Specialty or other-
wife, and all monies invdttd in any of the public funds or
government Securities, and all other the refidue of her per-
fonal eftate, whereof ike mould be poffefled, interefted or in-
titled to, the faid teftatrix gave and bequeathed the fame to
her brother J. L., in truft for him to pay, apply, and difpofe
thereof, unto ..nd among every 'of Cuch her relations, at Such
times, and in fuch manner and proportions, as he in his dis-
cretion fhould judge moft proper, without having any regard
to the legacies by her thereinbefore fpecially given; and the
faid teftatrix did nominate and appoint the faid J. L. Sole
executor of her faid will, as by the faid will, or the probate
thereof, whereunto your orator and oratrix, for their greater
certainty refer, when the fame fhall be produced to this ho-
nourable court, reference being thereto had, will appear. And
your orator and oratrix furthei (hew unto your Lordlhip, that
on or about the faid teftatrix departed
this life, without altering or revoking her faid will, whereupon
the faid J. L. duly proved the fame in the prerogative court
pi the archb'dhop, of Canterbury, and obtained probate, and
|took upon hirnfeli '.he execution thereof 5 and by virtue ;here-
O o 4
$6$ BILLS.
of pofTefTed himielf of all the perfonal eftate of the faid tefta-
trix to a very confiderable amount, and much more than fuf-
ficient to anfvier and fatisfy all her juft debts, funeral expen-
ces, and legacies. And your orator and oratrix further (hew
unto your Lordfhip, that fome time after the deceafe of the
faid teftatrix, that is to fay, on or about
they inter-married together, whereby your orator, in right
of your oratrix, became well intitled to the faid legacy of 500I.
and alfo to fome part, fhare, or proportion of the refidue of
the faid teftatrix's perfonal eftate, fo bequeathed to the faid J. L.
upon truft as aforefaid, your oratrix being one of the faid tef-
tatrix's relations, for whom fhe meant to make fome further
provifion than the aforefaid legacy. And your orator and ora-
trix furiher (hew unto your Lordihip, that they have frequent-
ly, and in a friendly manner, applied unto the faid J. L. and
requefted him to pay and fatisty unto your orator the faid
legacy of 500I. together with lawful interelt for the fame, from
the time of your orator and oratrix's faid marriage, and atfo
to come to a fair and juft account for and in refpett of the
perfonal eftate and efftdts of the faid eftator, which have
been received by him or by any other perfon or perfons by
his order, or for his ufe, and to pay and apply fuch perfonal
eflate in a courfe of adminiftration, and to difpofe of the clear
refidue or furpius thereof, agreeable to the intention of the
faid teftatrix, in and by her laid laft will and teftament expreff'ed
and declared ; and your orator and oratrix well hoped that fuch
their reafonable requefl would have been complied with, as
in juftice and equity they ought to have been ; but now fo
it is, may it pleafe your Lordfhip, that the faid J. L. combin-
ing -md confederating with divers other perfons at prefent
unknown to your orator and oratrix, whofe names, when dif-
covered, they pray may be herein inferted, with apt and proper
matter and words, to charge them as parties thereto, and contriv-
ing how to injure and opprefs your orator and oratrix in the pre-
mifes, abfolute.y reiufes to comply with fuch your orator and
oratrix's juft and realonable requefts aforefaid, fometimes pre-
tending that the faid teftatrix, in her life time, never made and
executed her laft will and teftament of fuch date, purport and
efrVct as is hereinbefore mentioned and fet forth, or if (lie did,
yet that fhe was not of found and difpofing mind, memory
and underftanding, at the time of making and executing fuch
will ; and that therefore he, the faid defendant, as the only
next of kin of the faid teftatrix, is intitled to the whole of
her perfonal eftate and effects ; whereas your orator and ora-
trix exprefsly charge the contrary of fuch pretences to be true,
and
BILLS. 5 6 9
and that the faid teftatrix in her life time, and while (he was
of found and difpofing mind, memory and onderftanding, did
duly make aud execute her ktft will and teftament in writing,
of fuch date, purport and effect, as is hereinbefore mentioned
and fet forth and that by virtue thereof, your orator is now-
become well intitled in right of your oratrix, to the faid le-
gacy of 500I. and alfo to fome part, fhare, or proportion of
the refidue of the faid perfonal eftate of the faid teftatrix^
afterpayment and fatisfatiion of her juft debts, funtral ex-
pences and legacies ; and fo the faid defendant at other times
admits the truth to be : But then he gives ou' and pretends
that the perfbnal eftate and effects of toe f id teftatrix which
have come to his hands, cuftody or power, were very fmall
and inconfiderable, and not more than fufficient to anfwer
and fatisfy her juft debts and funer.l expences : whereas your
o tor and oratrix expr- fsly charge that the perfonal eftate and
effect of the (aid teftatrix, which have come to the hands, cuf-
tody, or power of the faid defendant, are of very considerable va-
jue, and not only fufficient to anfwer and fatisfy all the juft
debts, legacies, and funeral expences of the faid teftatrix, but
alfo to afford a confiderabie refidue to be applied and difpofed
of amondlft tier relations ; and fo it would appear, if the faid
defendant would fet forth a full, true and particular account
of the faid perfonal eftate, and or every part thereof j and how
and in what manner, to whom, and for wnat the fame, and
every part thereof, has been applied or difpofed of-, but
which he refufes to do, or to make your orator and oratrix
any fatisfaction whatfoever, for or in refpect of their juft,
demand. All which actings, doings, and pretences of the
faid confederates, are contrary to equity and good con-
fcience, and tend to the manifeft wrong and injury of your
orator and oratrix in the premifes. In confideration where-
of, and forafmuch as your orator and oratrix .are remedilefs
in the premifes, by the ftrift rules of the common law,
and cannot have ad quate relief, except in a court of equity,
where matters of this kind are properly cognizable, and re-
lievable ; to the end therefore that the faid J. L. and his
confederates, when difcovered, may upon their feveral and re-
fpe£Hvc oaths, according to the beft and utmoft of their fe-
veral and respective knowledge, remembrance, information
and belief, a full, true, direct, and perfect anfwer make io all
and fingular the matters aforefaid, and that as fully as if the
fame were here repeated, and they particularly interrogated
thereto ; and more efpecially that the faid defendants may in
manner aforefaid anfwer and fet forth whether the faid tef-
tatrix
r~jo BILLS.
tatrix did not duly make and publifh her laft: will and tefta-
ment in writing, of fuch date, and to fuch purport and effect,
as is herebefore in that behalf mentioned, or of any and what
other date, and to any and what other purport and effect ; and
whether the faid teitatrix was not at the time of the making
thereof, of found and difpofing mind, memory, and under-
ftanding ; and whether the faid teftatrix did not afterwards
departed this life without altering or revoking in any and what
manner her faid will, and whether the laid defendant did not
thereupon prove the faid will in the faid ecclefiaflical court,
or in any, and what other ecclefiaftical court, and whether he
did not obtain probate, and take upon himfelf the execution
thereof; and whether by virtue thereof, or in any and what
other right he did not pofftfs himfelf of all, or fome, and what
part of the faid teftatrix's perfonal eftate and effe&s ; and whe-
ther they were not to a confiderable and what amount, and
much more than fufhcient to anfwer and fatisfy all the faid
teftatrix's juft debts, funeral expences, and legacies ; and whe-
ther your orator and oratrix did not inter-marry on or about
the time thereinbefore in that beha'f mentioned, or at any
and what other time ; and whether your orator did not there-
by, or in any and what other right, become entitled to the faid
legacy of 5 col and alfo to fome and what particular fhare
or proportion of the refidue of the faid teftatrix's perlonal eir
tate ; and whether your oratrix was not one of the faid teftatrix's
relations, for whom fhe meant to make fome further and what
provi'.ion than the aforefaid legacy; and whether your orator
and oratrix have not made fuch application and requeft to
the faid defendant, as are hereinbefore in that behalf men-
tioned, or to fuch purport and effect; and whether the faid
defendant has not refufed, and does not ftill refufe, to comply
with their faid requeft, and why does the faid defendant fo
refufe, and that faid defendant may fet forth and dis-
cover a full, true, and particular account of all and fingular
the perfonal eftate and effects, which were of the faid tefta-
trix's at the time of her death, together with the natures,
kinds, quantities, qualities, true and utmoft value thereof, and
every part thereof, and how much, and what part of the faid
perfonal eftate and effects have been received by, or come to
the hands, poifeflion or power of the faid defendant, or of any
other perfon or perfons, and whom by name, by his order or for
his ufe, and how the fame and every part thereof hath been paid,
applied, or difpofed of, and adminiftered, and to whom, and
for and upon what account, caufe, or confederation ; and whe-
ther any and what part thereof is now remaining to be got
BILLS. 571
in and administered, and where, and in whofe hands, poffef-
fion, or power ; and why the fame has not been got in and
received, and what is the amount thereof. And that the faid
defendant may be decreed by this honourable court, to come
to a fair and juft account for, and in refpect to all and An-
gular the perfonal eltate and effects of the faid testatrix,
which have been received by him, or by any other perfon or
perfons, by his order or for his ufe, or which without his wil-
ful default might have been received, and that the fame may-
be applied in a courfe of administration, and thereout your ora-
tor may be fully paid and fatisfied the aforefaid legacy of 500I.
together with lawful intereft for the fame, for the folemni-
zation of your orator and oratrix's faid marriage, and that
the clear refidue of the faid teftatrix's perfonal eftate may-
be afcertained, and the faid defendant may alfo be decreed
to pay and fatisfy unto your orator in right of your oratrix,
fuch parts, {hares and porportions of fuch clear refidue or
furplus as your oratrix (hall appear to be juftly entitled to,
under and by virtue of the faid teftator's will ; and for fuch
further and other relief as the nature of their cafe mav re-
quire, and unto your Lordfiiip (hall feem meet. May it pleafe
your Lordfhip, Ike.']
\_A BUI by one of the next of Kin of an 1/iteflate, agninfl the Ad-
miniflrator for an Account, and for his Share of the Refidue after
Payment of the faid Intejlate's Debts, &c.
To the Right Honourable, &c.
Humbly complaining, fheweth unto your Lordfhip, your
orator R. P. of , that B. P. heretofore of
H. in the county of G. yeoman, your orator's late father de-
ceafed, was in his life time, and at the time of his death, pof-
feffed of, interefted in, and well entitled unto a confiderable
perfonal eftate, confiding of houfehoJd goods, plate, linen,
china, wearing apparel and ftock on his farm, flacks of hay
and corn, divers articles, implements and utenfils of husban-
dry, ready money, money out at intereft upon bonds, mort-
gages and other Securities, and divers other goods and efficl:3
to a confiderable amount in value, and greatly more than fuf-
ficient to fatisfy and pay all his juft detrrs and funeral exp:n-
ces, and being fo pofleffcd, interelted, and entitled, he the faid
W. P. did in or about the year 1776, depart this life inteftate
and a widower, leaving J. P. W. P. E. P. M. P. and S. P.
defendants hereinafter named, and, your orator, his fix children,
his only next of kin, him furviving. And your orator fur-
ther
1
ct2 BILLS.
ther fheweth unto your Lordfhip, that fome time after the
death of the faid inteftate, the faid W. P. the fon, obtained
letters of adminiftration of his goods and chattels, rights and
credits to be granted to him, by and out of the proper ecclefi-
aftical court, and did by virtue thereof poffefs himfelf of the
faid perfonal eftate of the faid inteftate, to a large amount in
value, and more then fufficient to fatisfy and pay all his juft
debts and funeral expences, with a large furplus or refidue,
which refidue your orator charges becomes diftributable in
equal fhares and proportions, between and among your orator
and the faid other children of the faid inteftate, according
to the ftatute made reflecting the diftribution of inref-
tates' perfonal eftate ; and your orator as one of fuch chil-
dren, became intitled to one fixth part or fhare of the faid intef-
tate's perfonal eftate and effects. And your orator further
fheweth unto your Lordfhip, that your orator, being fo enti-
tled as aforefaid, has frequently and in a friendly manner, by
himfelf and others, applied to his faid brother, the faid W. P.
and requefted him to come to an account with your orator,
for the perfonal eftate and effects of their faid father deceaf-
ed, and to pay to him the fixth part or fhare of the clear re-
fidue thereof-, and your orator well hoped his faid brother W. P.
would have complied with fuch his requeft, as in juftice and
equity he ought to have done. But now fo it is, may it pleafe
your Lordfhip, that the faid W. P. combining and confede-
rating with the faid J. P. E. P. M. P. and S. P., &c abfolutely
refufes to comply with fuch your orator's requefts, fometimes
pretending that the faid inteftate left a very fmall and incon-
derable perfonal eftate to pay and fatisfy his debts and funeral
expences, the contrary thereof your orator exprefsly charges
to be the cafe, and that the perfonal eftate of the faid inteftate
was more than fufficient to pay and fatisfy all his debts and
funeral expences, with a large overplus, which the faid con-
federate W. P. will fometimes admit. But then he pretends
that your orator having lived with him for many years after
the death of the faid inteftate, he, the faid confederate, hath
expended confidcrable funis of money on the mainte-
nance and education of your orator, and which he infifts he
ou°ht to be allowed to let off againft your orator's faid claim,
and retain out of your orator's faid diftributive fhare of the
faid inteft ate's perfonal eftate. Whereas your orator charges,
that by reafon of the will hereafter mentioned, of your orator's
late aunt, O. P. the confederate, is not entitled to have any
fum or fums expended on the maintenance and education of
your orator, allowed to him out of your orator's faid diftribu-
J live
BILLS, 573
tive (hare of the faid inteftate's perfonal eftate ; and your ora-
tor charges that O. P. late of K. in the county of W. fpinfter
deceafed, a fitter of the faid inteftate, and aunt of your orator
and the faid confederate, did duly make and publifh her lad
will and teftament in writing, bearing date on or about the
day of and thereby amongft other things
did give and bequeath all her (lock of cattle of every fort and
kind, her flock of hay, cheefe, houfehold goods and dairy
utenfils, to her faid niece S. P. and her two nephews, the
faid confederates W. and E. P. daughter and fons of her
faid brother, the faid inteftate, equally between them, fliare
and (hare alike, upon this condition, that the faid niece and
nephews S. W. and E. fhould, within one month next after
her deceafe, enter into and execute a bond or bonds in the
penalty of 500I. to her truftees, in her faid will named, T. C
and H. P. and the furvivor of them, his executors and admi-
niftrators, with a condition or conditions thereunder to
be written, that they the faid niece and nephews S. W. and E.
or fome or one of them, fhould and would, at his or her, or
their own proper cofts and charges, maintain, cloath, educate,
and bring up in a fuifkient manner, according to their fitua-
tion of life, their brother and lifter your orator, and the faid
confederate M. P. untill they fhould attain their refpeotive
ages of 21 years, and fhould and would, at that time, juftly
and truly account to your orator, and the faid confederate
M. P. for their and each of their fhares, parts, and proportions
of and in their faid late father's goods and effects, and fhould
and would pay the full value thereof to them and each of them,
without any deduction whatever ; but if the faid niece and
nephews, the faid confederates S. W. and E. fhould neglect
or refufe to execute fuch bond or bonds, with fuch conditions
as aforefaid, then and in fuch cafe, fhe did thereby give and
bequeath all and fingular her faid ftock, &c. to her faid ne-
phew and niece your orator, and the faid confederate M. P.
equally to be divided between them, {hare and fhare alike ;
and the teftatrix appointed the faid Vv r . P. fole executor of
her faid will, as in and by the faid will, &c. or the probate
thereof, when the fame fhall be produced to this honourable
court, reference being had thereto, will appear. And your ora-
tor further charges, that foon after the making and publifhing
her faid will, the faid teftatrix departed this life without al-
tering or revoking the fame, pofTefTed of a confiderable per-
fonal eftate, particularly of fuch goods and effects, as in her
faid will, and hereinbefore mentioned, and leaving your
orator and the faid confederates, her nephews and nieces,
her
574 BILLS i
her furviving •, and the faid confederate W. P. hath duly
proved the fame will in the proper ecclefiaftical court, and hath
taken upon himfelf the burthen of the execution thereof, and
hath by virtue thereof pufiefied himfelf of the faid teftatrix's
perfonal eftate and effedts, and the. faid confederate, with the
other confederates S. and E., have taken poflefllon of the
feveral goods and effects fo bequeathed to them by the faid
will, and have retained and applied the fame to their own ufe
amongft themfelves as is herein before dated ; and your orator
is advifed, and hereby infills, that by re-.fon thereof the faid
W. P. ought not to be allowed any charge againft your orator
for his maintenance and education, inafnmch as the faid W. P„
hath already received a full fatisfa&ion for the fame in manner
aforefaid, and which the faid confederates will at times admit :
but they fet up fome other claims and pretences oga'mft your
orator, and relufe to difcover the particulars thereof. And the
faid confederates I. P., E. P., M. P., and S. P. feverally refufe
to join with your orator in this fuit, under a pretence that they,
or fome of them, have been fully paid and fatisfied their (hares-
of the faid teftator's eftate and effect, but how and in what
manner they have been paid and fatisfied the fame, they feverally
refufe to difcover, all which &c. (a), And that the faid confede-
rate W. P. may fet forth a true and particular inventory and
account of all and lingular the perfonal eftate and efFe&s which
were of the faid inteftate B. P. the father, at the time of his
death, together with their natures, kinds, quantities, qualities,
true and utmoft value thereof, and of any part and particular
thereof, and how much, and what part and parts thereof have
been poflefled by, and come to the hands, poftcflion, or power
of the faid confederate W. P., or if any other perfon or perfons,
and whom by name, by his order, or for his ufe, and how and
in what manner, the fame, and every part thereof, has been ap-
plied and difpofed of, and to whom, and for, and upon what
consideration, and whether any and what part and parts of the
faid inteftate B. P's eftate do now remain outstanding, or to be
got in and received, and where, and in whofe hands* or poflef-
fion; and that the faid W. P. LP. E. P. M. P. S. P. may
fet forth and difcover whether the faid confederate hath ever,
and when, accounted with them or either of them for the faid
inteftate's eftate and effects ; and whether he hath ever and
when paid them, or any, or which of them, any and what
fum or fums as and for their refpective diftributive ihares in the
(a) Vide the formal words is the introduction to the interrogating,
part in the laft bill*
faid
BILLS. 575
faid inteftatc's perfonal eftate and effects, and whether they, and
any, and which of them do not refufe to join with your orator
in this fuit, and why and for what reafon. And that an account
may be taken unJer the direction of this honourable court, of
the perfonal eftate and effects of the faid inteftate B. P., the fa-
ther, poffeffed by, or come to the hands of the faid confederate
W. P., or by any other perfon by his order, or for his ufe, and
that an account may be alfo taken of the debts and funeral ex-
pences of the faid inteftate B. P., and that the perfonal eftate of
the faid inteftate may be applied in a due courfe of adminiltra-
tion, and that the clear refidue thereof may be afcertained, and
that one-fixth part or (hare of fuch clear refidue may be paid by
the faid confederate W.P. to your orator, and that your orator
may have fuch further and other relief, &c]
In Chancery.
[_A Bill by Bond and fimple ContraFl Creditors on Behalf of them-
fefoes and other Creditors, for Satisfaction of their refpeElive Debts
out of the Teflators real and perfonal Eflate.
To the Right Honourable, &c.
Humbly complaining fhew unto your Lordfhip your orator
T. C. of, &c. and P.M of, &c. executors of the laft will and
teftament of R. B. late of, Sec. clerk, deceafed, and as fuch
bond and fimple contract creditors of I.T., late of, &c. de-
ceafed, and alfo your oratrix M V., of, &c. another creditor
of the faid I. T. by fimple contract, on behalf of themfelves
and all other the creditors of the faid I. T. who fhall come in
and feek relief by, and contribute to the expence of, this fuit,
that the faid I. T. having borrowed of, and being indebted unto
the faid R. B. in the fum of 500I. he, for fecurinjj the payment
thereof, with lawful intereft for the fame, duly executed a bond
or obligation in writing, bearing date on or about, &c. where-
by he bound himfelf, his heirs, executors, and adminiftratcrs
unto the faid R. B., his executors, adminillrators, and affigns,
in payment of the faid fum of 500I. with intereft for the fame,
at the rate of 5I. per cent, per ann. at a time therein mentioned,
and long fince paffed, as in and by the faid bond, now in the
cuftody of your orators, and ready to be produced to this ho-
nourable court, (reference being thereto had,) will more fully ap-
pear. And your orators and oratrix further fhew unto your Lord-
(hip that the faid principal fum of 500I. and all the intereft there-
of, from the day of now remain juftly due and owing by
virtue of the faid bond. And your orators and oratrix further
fhew unto your Lordfhip that the faid I. T. on or about, &c
having occafion to borrow a certain fum of money on that day,
fent
576 BILLS.
fent a letter to the faid R. 13. by C. R. then the faid I. T's clerk,
(the faid I. T. being an attorney), in the words and figures fol-
lowing, that is to fay [infert the letter literatim) and in confe-
quence of fuch letter, the faid R. B. did, on the faid day of
in the year, &c. advance unto the faid C. R. for
the ufe of the faid I.T. the further fum of 250I. for which the
faid C. R. figned and gave a promiffory note to the faid R. B.
in the words and figures following, viz. {infert the note) and
the faid R having on the faid day paid the fum of 250I. to the
laid I. T., he the faid I. T. afterwards wrote and fent to the
faid R. B. a letter dated, &c. wherein are the following words
{infert letter) as in and by the faid letters and promiffory notes,
now in the cuftody of your orators, reference being there-
to had will appear. And your orators and oratrix further fhew un-
to yourLordfhip that the faid fum of 250I., and all intereft there-
on now remain juftly due and owing by virtue of the faid let-
ters. And your orators and oratrix further fhew unto your
Lordfhip that the faid I. T. having occafion to borrow another
fum of money, he, on or about wrote and fent
by the faid R. his clerk, a letter to your oratrix in the words and
figures following, viz. [infert the letter); in confequenceof which
your oratrix did on, &c. advance unto the faid R. for the ufe
of the faid I. T. the fum of 200I., for which the faid R. then
gave your oratrix the following promiffory note, viz. {infert the
note) and in and by the faid letter and note, &c. And your
orators and oratrix further fliew unto your Lordfhip that the faid
I T. departed this life on or about, &c. inteftate, being indebt-
ed to the faid R. B. and your oratrix in fuch funis as aforefaid,
and to fome other perfons, and he left M. T. the elder, his wi-
dow, and M.T. the younger, his only child and heir at law,
him (urviving, and foon after his death letters of administration
of his perfonal eftate, effects, debts, and credits, were granted
to the faid M. T. the elder, by the proper ecclefiaftical court.
And your orators and oratrix further fhew unto your Lordfhip
that the faid I. T. was at the time of his death poflefTed of or
entitled to a ronfiderable perfonal eftate and effects, and feifed
or entitled in fee Ample of or to divers freehold mefluages,
lands, tenements, and hereditaments, fituated, &c. of a large
yearly value in the whole, and the faid M. P. the elder, poflefTed all
the faid perfonal eftate and effects, or fo much thereof as fhe was
able, and fhe and the faid, M. T. the younger, or one of them,
entered on the faid real eftate, and ever fince have or hath
been, and now are or is in poiTcflion thereof, or in receipt of
the rents and profits thereof. And your orator and oratrix
further fhew unto your Lordfhip that the faid R.B. departed
14 this
BILLS. 577
life on or about, Src. having before his death duly made and
publifhed his laft will and teftament in writing, bearing date
on or about, &c. and thereby gave all the refidue of his perfc-
nal eftate unto your orators, equally to be divided between them,
and appointed them executors thereof ; and they fhortly after
his death duly proved the fame in the confiftory court of the
bifhop of N., and thereby became, and now are, entitled
to the fums of money due to the faid R. B. as aforefaid ; and
divers other debts due from the faid inteftate to divers other
perfons at the time of his deceafe dill remain unfatisfied. And
your orators and oratrix have, at feveral times by themfelves and
their agents, in a friendly manner applied to the faid M. T. the
elder, and M. T. the younger, to pay the feveral fums of money
due to your orator and oratrix refpedtively as aforefaid, and
many other creditors of the faid inteftate have made applications
to them the faid M. T. the elder, and M. T. the younger, to
pay them their refps£tive debts, with which requefts your ora-
tors and oratrix hoped they would have complied ; but now fo
it is, &c. they the faid defendants combining and confederating
themfelves together, and to and with divers perfons at prefent
unknown to your orators and oratrix, whofe names, when dif-
covered, your orators and oratrix pray may be herein infertedj
with proper matter and words to charge them as parties hereto,
and contriving how to injure and opprefs your orators and ora-
trix in the premifes, abfolutely refufe to pay the feveral fums
of money due to them ; fome times pretending that the faid
I. T. did not execute fuch bond as aforefaid, and that neither
he nor the faid C. R. figned fuch writings as aforefaid or either
of them, and that no fuch fums as aforefaid were really ad-
vanced, or lent to, or received by him the faid I. T.j or that
he in his lifetime fully paid and fatisfied all fuch fums, and the
mtereft thereof, and that therefore no money was remaining
due from him in refpedt thereof at the time of his death.
Whereas your orators and oratrix charge the contrary to be
true, and fo the faid M. T. the elder and M. T. the younger
will at other times admit, but then the faid M. T. the elder pre-
tends that the perfoual eftate and effects which the faid I. T
was poflefied of, entitled to, or interefted in, at the time of his
death, were but of inconfiderable value in the whole j and that
only fome fmall part thereof was poflefied by her the faid M. T.
the elder, or by her order, and for her ufe, and not nearly fuf-
ficient to pay and fatisfy your orators' and oratrix's faid de-
mands ; whereas your orators and oratrix charge the contrary
thereof ro be true as aforefaid, and particularly drat he was at
the time of his death, poflefied of divers lands, meffuages, and te-
Vol. L - P p nements,
578 BILLS.
nements, for fome long term of years at fmall rents, and
that the faid M. T. the elder is now in poffeffion and
receipt of the rents and profits of all fuch meffuages, lands,
and tenements, unlefs fhe has fold the fame, in which
cafe a large fum of money hath been received by her, or
by her order, or for her ufe, as a consideration for the
fale thereof, and he was alfo entitled to confiderable fums
of money due on bonds, mortgages, and othe,r fecurities ; but
in order to conceal the real value of fuch perfonal eftate of the
faid I. T., the faid M. his widow hath not exhibited into the
proper ecclefiaftical court, or caufed to be made any appraife-
ment or inventory thereof, or if any fuch was exhibited or made,
the fame was defective, and many particulars of the perfonal
eftate which he was really poffeffed of, interefted in, or entitled
to at the time of his death, were wholly omitted therein, and
the moft of the particulars which are contained in fuch appraife-
ment or inventory, are therein appraifed at a fum much lefs
than ths fame refpetYively were really worth, or than they were
or might have been afterwards fold for. And your orators and
oratrix are advifed that the perfonal eftate of the faid I. T.
ought to be firft applied to pay the whole of the debts owing by
him at the time of his death on fpecialty, in preference to all his
debts. on fimple contract, and that if fuch perfonal eftate is not
fufficient to pay the whole of his debts, then your orators and
his other fpecialty creditors are by law entitled to be paid the re-
mainder thereof out of his freehold eftates ; and that your oratrix
and his other creditors on fimple contract are entitled in equity
to a fatisfaclion of their refpeclive debts out of his freehold
eftate, fo far as his perfonal eftate may be exhaufted by his
fpecialty creditors to the prejudice of his creditors on fimple
contract •, and fuch real eftates ought to be fold, and the rents
and profits thereof received fince his death, ought to be ac-
counted for, for that purpofe ; but then the faid M. T. the elder,
and M. T. the younger pretend that moft of the meffuages,
lands, tenements and hereditaments, whereof the faid J. T.
was in poffefiion at the time of his death, are copyhold, or
that fuch parts thereof as are freehold, were fettled for the
benefit of them, or one of them, and that therefore no part
thereof is fubjejft to the payment of his debts, either in law
or in equity : whereas your orators and oratrix charge the con-
trary of fuch pretences to be true, and the faid defendants
refufe to difcover the particulars or nature of fuch meffuages,
tenements and hereditaments, or the particulars of any fet de-
ment or fettlements ; and fometimes the faid M. T. the elder
claims to be intitled to dower out of all and fome part of fuch
• . freehold
BILLS.
579
freehold eftates ; Whereas your orators and oratrix are advifed,
and humbly infift, that fhe is not entitled to dower out of any
part thereof, the faid J. T. having only an equitable eftate
therein or fome other eftate, whereof (he is not dowable ;
and at fometimes (he the faid M. T. the younger, or one of
them claims fome other right or intereft, to or in the faid
freehold meffuages, lands, tenements or hereditaments, or
part thereof, but they refufe to difcover the particulars thereof,
or how, or in what manner they derive or make out the fame ;
and at other times they pretend that there are or is fome
mortgage or mortgages, incumbrance or incumbrances upon,
or affecting the faid meffuges, &c. or part thereof, although
they do not think fit to difcover the particulars thereof ; and
under fuch and the like pretences, and others equally unjuft
and unreafonable, the faid M. T. the elder, and the faid M. T.
the younger, refufe to pay the money due to your orators and
oratrix refpe&ively as afcrefaid, or any part thereof, or to fell
the faid freehold meffuages, &c. or any part thereof, for fuch
purpofe j and they having got into their cuftody or power the
deeds and writings relating thereto, they refufe to produce the
fame, all which, &c. (here Jlate the introduction to interroga-
tory part, and interrogate upon the faEls ftated in the bill.) And
that the faid defendant M. T. the elder may fet forth a full,
true and particular account of the perfonal eftate ; (as before,)
and that the faid defendants may fet forth an account of the
rents and profits of the real eftates of the faid J. T. received
by them or either of them, or by their, or either of their
order, or for their, or either of their ufe. And that an
account may be taken of the monies due to your ora-
tors and oratrix refpectively for principal and intereft as afore-
faid, and of other the debts owing by the faid J. T. at the
time of his death, and of his funeral expences, and alfo
an account of the perfonal eftate and effects of the faid J. T.
poffefled or received by or by the order, or for the ufe af
her the faid M. T. the elder, and of the rents and profits of
the faid inteftate's real eftate received by the faid M. T. the
younger, or M. T. the elder, or either of them, or by any per-
fon, by their or either of their order, or their or either of their
ufe ; and that fuch perfonal eftate may be applied in payment of
the inteftate's debts in a courfe of adminiftration, fo far as the
fame will extend ; and if the fame fhall be inefficient for that
purpofe, then that the freehold eftates of the faid inteltate, cr
a fu'Jkient part thereof, may be fold, and all proper parties di-
rected to join in fuch fale, and that the money to arife from "*
fuch fale, and the rents and profits of the faid freehold eftates, fo
P p 2 received
580 BILLS.
received by the faid defendant M. T. the younger, may be ap-
plied in aid of the perfonal eftate in payment of fo much of the •
fpecialty debts of the faid inteftate, as fuch eftates (hall be
found infufhcient to pay ; and alfo if it fhall appear that any
part of the faid inteflate's perfonal eftate has been exhaufted
by his fpecialty creditors, then that your orators and oratrix,
and fuch other of his fimple contract creditors as fhall in due
time come in and contribute to the expence of this fuir, may be
decreed to (land in the place of fuch fpecialty creditors, and re-
ceive a fatisfa£tion by and out of the money to arife from the
fale of the faid real eftates, for fo much of the perfonal eftate
as has been fo exhaufted ; and in order to fuch fale, that all
the title deeds and writings relating to fuch real eftates may be
produced ; and that your orators and oratrix may have fuch
further and other relief in the premifes, &c]
In Chancery.
[Bill by fwiple ConttaBi Creditors of Intcjlate> to be paid their
Debts, and to have A[fets marfhalled.
Humbly complaining, fhew unto your Lordfhip your ora-
tors A. B. of, &c, and C. D. of, Sec. on behalf of themfelve?.
and all others the fimple contract creditors of E. F. late of,
&c. deceafed, who fhall come in and contribute to the expence
of this fuir, that the faid E. F. departed this life on or about,
&c. and was in his life time, and at the time of his death,
juftly and truly indebted unto your orator A. B. in the prin-
cipal fum of 50I. with an arrear of intereft thereon, upon and by
virtue of his (the faid E. F.'s) promifibry note in writing, bearing
date on, &c. for fecuring the payment of the faid fum of 50I.
to your faid orator, with intereft for the fame, at or after
the rate of 4I. 10s. per cent, as in and by the faid promiffory
note of hand, when the fame fhall be produced to this
honourable court, (reference being thereto had), will more
fully and at large appear. And your orators further fhe\v
unto your Lordfhip that the faid E. F. in his life time,
and at the time of his death, was alfo juftly and truly in-
debted unto your orator C. D. in the fum of 20I. and up-
wards, for goods fold and delivered, and money laid out and
expended to and for the faid E. F.'s ufe : And your orators fur-
ther fhew, &c. that the faid E. F. was in his life time, and
at the time of his death poffefled of, interefted in, and intitled
unto a very confiderable perfonal property, confiding of divers
eftates and premifes held upon leafe, upon terms or a term of
years, and other chattels real and perfonal, and of various other
particulars, to a large amount or value in the whole, and more
than
BILLS. 581
than fufficient to have paid and fatisfied all his juft debts and
funeral expences : and the faid E. F. was alfo in his life time,
and at the time of his death, feifed or well intitled unto fome
confiderable real eftates, lands, tenements and hereditaments,
fituate in feveral counties in England, and particularly of or to
divers freehold houfes or tenements in L. aforefaid, and alfo a
clofe or parcel of land in F. in the county of L. of fome confi-
derable yearly value refpe£tively. And your orators fur. her (hew,
&c. that the faid E. F. being fo feifed and poffeffed, departed
this life on or about the time aforefaid inteftate, and without
iffue, and leaving J. F. of, &c. his eldeft brother and heir at law,
and S. F. of, &c. his widow and relict', and that the faid
S. F., upon the death of the faid inteftate, applied for and
obtained letters of adminiftration of his perfonal eftate and
effects, debts and credits, to be duly granted to her by and out
of the proper ecclefiaftical court in that behalf: and the faid
S. F. thereby became, and is the legal repvefentative of the faid
inteftate E. F. •, as by fuch letters of adminiftration, when, &c.
And your orators further fhew that, under and by virtue of
fuch lettes of adminiftration, (he the faid S. F., or fome
perfon or perfons, by her order and for her ufe, hath or have
pofTefied, gotten and received the whole, or the greateft part
of the faid inteftate's perfonal eftate and effects, confifting of
the various particulars aforefaid, and to a confiderable amount in
the whole, and fufficient, or more than fulHcient to f.uisfy and
pay all his the faid inteftate's juft debts and funeral expences,
and that the faid J. F., the faid inteftate's htir at law, upon
or foon after the deceafe of the faid inteftate, entered upon
and poffeffed himlelf of all his real eftates and premifes, and
hath ever fiuce been in fuch poffeffion, and he, or fome
perfon by his order, or for his ufe, hath or have ever fince been
in the receipt of the rents and profits thereof, and the faid
J. F. is now in fuch pofTeflion and receipt : And your orators
further fhew, & c. that fince the death of the faid inteftate,
the faid J. F. hath paid unto your orator A. B. the fum of jol.
in part difcharge of his faid debt or fum of 50I, ; but that the
remainder thereof, together with an ajrrear of intereft on the
whole of the faid debt now remains juftly due and owing
unto your orator A. B. ; and the whole of the faid fum of
20I. and upwards, doth alfo ftill remain juftly due and owing
unto your orator C. D. from the faid inteftate's eftSte; and
your orators further fhew, &c. that the faid J. F having pof-
feffed the faid inteftate's perfonal eftate and effects as aforefaid,
they have made, or caufed to be made, feveral applications to
10 the faid S. F. and requefted her to pay and fatisfy unto your
P p 3 orators
582 BILLS.
orators the faid refpeclive demands, by and out of the faid
inteftate' s perfonal eftate and effe&s, if the fame were fufficient
for that purpofe ; and your orators have alfo applied unto the
faid J. F., and requefted him, that if the faid inteltate's p rfonal
eftate and effects were not fufficient, by reafon of an application,
thereof, or any part thereof to the payment of any fpecialty
creditors of the faid inteftate, that they would confent that the
deficiency thereof might be raifed by fale of a competent part
of the faid inteltate's real eftate, or that the faid inteftate's real
and perfonal eftates might be marfhulled, and his perfonal
eftates and effects applied in payment of his fimple contract
debts, and his fpeeialty debts paid out of his real eftate-, and
your orators well hope, &c. But now fo it is, &c. that the
faid defendants S. F. and J. F. abfolutely refufe to comply
with your orator's faid juft and reafonable requefts, fometimes
pretending that the faid E. F. deceafed, was not at the time
of his death indebted to your orators, or either of them, in
any fum or fums of money, and that he never made or figned
any fuch promifTory note of hand to your orator A. B. as
aforefaid : Whereas your orators exprefsiy charge the contrary
to be true ; and your orator A. B. charges that the faid in-
teftate did duly make and fign fuch promiffory note of hand
jn writing to him for fecuving his faid debt, then juftly due
and owing, with the intereft thereon, 2t and after the rate afore-
faid, as before mentioned ; and your orators further charge,
that the whole of their feveral debts and demands were,
together, with a large arrear of intereft on your orator A. B.'s
faid debt, juftily due and owing to your orator at the time of
the faid E. F's. deceafe ; and which the faid defendants will at
other times admit; but then the faid defendant S.F. gives out and
pretends that the faid inteftate died pollened of but a very
fmall and inconfiderable perfonal eftate, and that he was at the
time of his death indebted unto divers perfons in fundry
fums on bonds and other fpecialties to a large amount in the
whole, and that fuch perfonal eftate was not fufficient for the
payment of the faid fpecialty creditors, and that all fuch per-
fonal eftate hath been applied in payment and difcharge of
fuch fpecialty debts, and that there will remain no part o. the
faid inteftate's perfonal eftate and effects wherewith to pay the
demands of your orators, or either of them but what fpecialty
debts in particular, fhe pretends to have paid thereout, fhe the
faid defendant refufes to difcover : whereas your orators charge
the contrary. And your orators are advifed and humbly infift
that if the perfonal eftate and effects of the faid inteftate E. F.
have been exhaufted by the faid S. F. in paying or dif-
charging
BILLS. 583
charging any of his fpecialty debts, then your orator and
the other fimple contract creditors of the faid inteftate, ought
and are intitled in a court of equity to have the faid inteftate's
affets marfhalled, and to ftand in the place of fuch fpecialty
creditors upon his real eftates, and to have fatisfaction for their
refpeftive demands thereout, for fuch amount, and for fo
much as fuch fpecialty creditors mall have received out of
the faid inteftate's perfonal eftate ; and that fuch real eftates, or
a competent part thereof ought to be mortgaged or fold for
that purpofe, and the faid inteftate's perfonal affcts ought to be
applied fokly in difcharging your orators and other fimple con-
tract creditors of the faid inteftate ; but neverthdefs the faid
defendants under fuch, and the like pretences as aforefaid, re-
fufe to pay your orators, or either of them, their faid de-
mands •, and the faid defendants refufe to come to any account
for the real or perfonal affets of the faid inteftate ; and your ora-
tors alfo charge that the faid defendant E. F. hath po fluffed
the title deeds and writings belonging to and concerning the
real eftate of the faid inteftate, and which he refufes to pro-
duce or difcover, all which, &c. in confideration, &c to
the end, &c. And that the faid defendant S. F. may fet
forth a full, true and particular account of the perfonal eftate
(as before,) and that the faid defendant J. F. may fet forth
an account of the rents and profits of the real eftate of
the faid inteftate received by him, or by his order, or
for his ufe. And that the faid defendants may refpectively
anfwer the premifes, and that an account may be decreed to
be taken of the monies due to your orators in refpect of the
faid feveral demands ; and that an account may be alfo
taken of the faid inteftate's perfonal eftate and effects poffeffed
or received by, or come to the hands of the faid defendant,
S. F., or of any other perfon or perfons by her order, or for
her ufe, and alfo an account of the rents and profits of the
faid inteftate's real eftates, poffeffed or received by, or by
the order, or for the ufe of the faid defendant S. F.
And that your orators may be paid the faid refpec-
tive demands out of the faid inteftate's perfonal eftate,
if the fame mall be fufficient for that purpofe, and to pay all
other the debts of the faid inteftate, as well by fpecialty, as by
fimple contract. But if the fame mall be inefficient for that
purpofe, then that the faid inteftate's fpecialty debts may be paid
out of his real affets, and the fimple contract debts of the
faid inteftate paid out of his perfonal affets, and that pro-
per directions maybe given in that behalf; and if any of
the faid inteftate's perfonal eftate ihall be, or appear to have
P d 4 been,
584 BILLS.
been, applied in payment of the fpecialty debts of the fald E. F,
(the inteftate,) then your orators, and all other his fimple con-
tract creditors, may be declared to be intitled to a fatisfaclion
out of his real eftates, to fuch amount, as fpecialty creditors
fhall have received out of his, the faid inteftate's perfonal eftate.
and effects, and that fufficient parts of the faid real eftates
may be mortgaged or fold for raifing the fame, and that all
proper parties may be decreed to join in fuch mortgage or
fale, and that by and out of the monies to a rife therefrom,
your orators and all other the fimple contract creditors of the
faid inteftate, may be refpefiively paid and fatisfied their faid fe-
veral demands, and their cofts of this fuit, and that all the title
deeds and writings relating to the faid eftate, may be produced,
and all proper and neceflary directions given to obtain the
ieveral purpofes aforefaid, and the payment of your orators' faid
demands, and that your orators may have all fuch further
and other relief in the premifes, as the nature of the cafe
may require, and as to your lordfhip fhall feem meet,
May it pleafe your Lordfhip, &c]
[A Bill to foreclofe a Mortgage.
Humbly complaining, fheweth unto ycur Lordfhip, your
orator R. P. of A. in the county of S. yeoman, that D. C,
pf W. in the fame county, houfe-carpenter. the defendant
hereinafter named, being, or pretending to be, feifed, or poflefT-
ed of, and well entitled to, a fure eftate of inheritance, in fee fim-
ple, or fome other eftate, whereof he had power to difpofe, in
the mefluage, tenement, lands, hereditaments and premifes here-
inafter mentioned, and being in want of money to fuppiy his
neceflary occafions, did, on or about the month of June 1773, a P"
ply to and reqqeft your orator to advance and lend him the
fum of 200I. upon the fecurity or mortgage of the premifes
hereafter mentioned. And your orator having agreed thereto,
did accordingly advance and lend the fame to the faid D. C.
and thereupon, for fecuring the payment of the faid 200I. with
intereft for the fame, he the faid D. C, by a certain indenture
o£ demife, by way of mortgage, bearing date the ] 7th day of
June 1773, and made between the faid D. C. of the one part,
and your orator of the other part, for the confideratioii of
the faid fum of 200I to him paid by your orator as therein
mentioned, and which faid fum of 200I. your orator charge*
was really and bona fide advanced and paid by your orator
to the faid D. C, did demife, grant, bargain and fell unto
your orator, his executor?, administrators and ^fTigr.s, all that, &c.
And
BILLS. 585
And your orator further fheweth,&c. that the faid D. C. having
afterwards occafion for the further fum of 2col., did apply to,
and requeft your orator to advance and lend him the fame,
upon the fecurity of the premifes aforefaid, with which faid
requeft your orator did accordingly comply ; and thereupon,
in and by a certain other indenture bearing date the 28th day of
March, in the year 1775, between the Yaid D. C. of the one
part, and your orator of the other part, reciting the faid in-
denture of mortgage, of the 17th Jane 17-3, to the effect
therein mentioned, and further reciting as your orator charges
the truth to be, that the faid fum of 260I. had not been paid
unto your orator, according to the tenor of the faid provilo,
whereby, or by means whereof, the eftate and intereft of your
orator, of and in the faid mortgaged premifes, were then become
abfolure in law, for all the re It, refidue and remainder of the
faid term of ioco years, in and by the faid recited indenture
of mortgage granted ; and further reciting that there was
then due and owing unto your orator, on the faid recited
mortgaged premifes, for principal money, the full fum of 200I.
all intereft for the fame having been paid up to the day of the
date thereof, and further reciting, that the faid D. C. had re-
quefted your orator to advance and lend him upon an align-
ment and confirmation of the faid mortgaged premifes, the
further fum of 200I. and which vour orator had thereby con-
fented and agreed to do, and that the faid fum of 200I., with
the faid fum of 200I. already due upon the faid recited mort-
gage, made together the full fum of 400!. principal monev,
he the faid D. C, for and in confideration of the fum of 200I.
to him paid by your orator, as therein mentioned, and which
mentioned fum of 20 .1. your orator charges was redly and
bond fide paid and advanced by him to the faid D. C, did
grant, ratify, and confirm unto your orator, his executors, admi-
nistrators and affigns, all the faid mortgaged premifes, &c.
as in and by the faid two feveral indentures of mortgage, now
in your orator's cuitody, and ready to be produced, as this ho-
nourable court (hall pleafe to direct, and whereto, your orator
for greater certainty, craves leave to refer, will appear. And your
oratorfurther fheweth, &c. that the faid fum of 400I., or any part
thereof, was not paid to your orator, or any other perfon on
his account, at the time limited and appointed in that behalf,
in and by the faid latt mentioned indenture, or at any other
time, but default was made in the payment thereof, whereby
the legal eftate of and in the faid mefluage or tenement, lands and
premifes, became vefted in your orator, redeemable, neverthe-
|e.s in equity, on payment of the principal money and intereft
due
5 86 BILLS.
due and to become due to your orator. And your orator fur-
ther fheweth, that the whole of the principal fum of 400I. is
now due and owing to your orator, together with a large
arrear of intereft thereon, and your orator well hoped that the
faid D. C. would have paid your orator the faid principal fum
and intereft, and would have fuffered your orator to have peacea-
bly held and enjoyed the faid premifes ; and your orator hath
frequently applied to the faid D. C. to pay to your orator the
faid principal monies and intereft due thereon, or elfe quiet-
ly and peaceably to deliver up poffeffion to your orator of the
faid mortgaged premifes, and to releafe all his right, title and
equity of redemption, of, in and to the faid premifes to your
orator, the faid D. C. well knowing, as your orator charges
the truth to be, that the faid premifes are a very fcanty and
flender fecurity for the principal and intereft now due to your
orator thereon ; and your orator well hoped that the faid D. C.
would have complied with fuch your orator's reasonable re-
quefts, as in juflice and in equity ne ought to do. But now
fo it is, may it pleafe your Lordfhip, that the fiid D. C. com-
bining, &c. and contriving how to injure and opprefs your
orator in the premifes, and to defraud him of the principal
money and intereft due to him on his faid fecurity, he the
faid confederate does abfolutely refufe to comply with your
orator's faid requefts, under a pretence that he never had,
or received any fuch fum or fums of money of your ora-
tor as aforefaid, and that he never made and executed any fuch
indentures as aforfaid, the contrary thereof your orator charges
to be the truth, and which the faid confederate will fometimes
admit, but then he gives out and pretends that there are ma-
ny other charges, mortgages, and feveral incumbrances af-
fecting the faid premifes, made and executed by him, or
fome perfon or perfons, under whom he claims, prior in
point of time to thofe made by him to your orator, but the
particulars thereof, or when and by whom made, or for what
confideration, or what is now due thereon, the faid confede-
rate refufes to difcover ; all which, &c. In confidera-
tion whereof, and for as much as your orator is remedilefs in
the matters aforefaid, and cannot foreclofe the equity of re-
demption of the faid mortgaged premifes, but in a court of
equity, where matters of this kind and nature are properly
cognifable and relievable. To the end therefore, Sec, and more
efpecially that they may anfwer and fet forth whether he the
faid confederate was not fcifed of, and well entitled to him
and his heirs, of and in the meffuage or tenement, hereditaments
and premifes hereinbefore mentioned, and for fuch eftate as
aforefaid,
BILLS. 587
aforefaid, or for any other, and for what eftate, and whether
he did not, at fuch time as aforefaid, or when elfe, apply to
your orator, and requeft him to lend and advance him fuch
fum of 200I. as aforefaid, or any other, and what fum of mo-
ney, on fuch fecurity as aforefaid, or how much, and whether
y< o:ator did not accordingly advance the faid confederate
the laid fum of 200I. or any and what other fum, and whether
fuch indenture of the 17th day of June 1773, was not made
and executed by and between the faid confederite and your
orator, of fuch purport and effect as aforefaid, or any other,
and what indenture of any other and what date, purport and
effeft, and whether the faid confederate did not alfo apply
to and requeft your orator to advance and lend him fuch fur-
ther fum of 200I. as aforfaid, or any other and what fum, and
whether fuch other indenture of the 28th of March 1775, was
not alfo made and executed by and between the faid confederate
and your orator, of fuch purport and elfe ft as aforefaid, or
any other, and what indenture of any other, and what date
purport and effeft, and whether your orator did not really and
bond Jide lend and advance to the faid confederate, fuch two
feveral fums of 20cl. and 200I as aforefaid, or any other and
what fums, and whether the fame, and either, and which of
them, or any and what part or parts thereof, have ever, and
when, been repaid to your orator, and whether the eftate and
intereft of your orator in the faid mortgaged premifes, is
not become abfolute in your orator, and whether your orator
hath not made fuch applications and requefts to the faid con-
federate, and for fuch purpofes as aforefaid, or any other, and
what applications and requefts for any other, and what pur-
pofes, and whether there are any other, and what mortgages,
charges, or incumbrances, affefting the faid mortgaged pre-
mifes, prior in point of time, to your orator's faid mortgaged
fecurity, and if fo, that the faid confederate may fet forth and
difcover the full and whole particulars thereof, and when, where,
and by whom made, for, and on what confideration, and whe-
ther there is or are any, and what fums or fum of money now
remaining due, on any and which of fuch mortgages and in-
cumbrances, and to what amount, and to whom, and that
the faid confederate may fet forth and difcover how much is
now due and owing unto your orator, for principal and inte-
reft on his faid fecurities. And that it may be referred to one
of the Mafters of this honorable court, to take an account of
what is due to your orator for principal and intereft, on his
faid fecurities, from the faid confederate, and that the faid
confederate may be decreed to pay to your orator, what fhall
be
5 88 BILLS.
be found due on fuch account, by a fliort day, to be appointed
by this honourable court in that behalf, together with your
orator's cods -, and in default thereof, that tne laid D. C. and
all perfons claiming under him, may be for ever barred and
foreclofed, of and from all right and equity of redemption,
of, in and to the faid mortgaged premifes, or any part thereof,
and may deliver up to your orator all deeds, papers and writings
in his cuftody or power, relating to, or concerning the faid
mortgaged premifes, and that your orator may have fuch fur-
ther and other relief, &c]
\Bdl to redeem a Mortgage.
To the Right Honourable, Sec.
Humbly complaining, fhew unto your Lordfhip, your ora-
tor T. G. of M. in The county of K., yeoman, the eldeft
fon and heir at law of H. G., late of M. aforefaid, and
who was the nephew and heir at law of H. G. the elder,
late of C. in the county of O. deceafed, that the faid H. G.
the elder, was in his life time, and at the time of his death,
ftifed or intitled in fee fimple, fubjeel; to a mortgage term
of 500 years, which by fome mefne afli^nments or other-
wife, has been afligned to, or has vefted in W. G. the el-
der, M. P., and E. W. the defendants, hereto, or fome
or one of them, of or to divers mefluages, tenements, and here-
ditaments, fit uate, lying and being in the counties of O. and
^3., or one of them, or elfewhere, of great yearly value, and par-
ticularly of feveral mefluages or tenements, lands or other here-
ditaments, fituate, lying or being in the faid parifh of C. in the
faid county, &c. in the common fields thereunto adjoining, and the
laid H. G. the elder departed this life fome time ago, inteftate,
and without iflue, leaving the faid H. G. your orator's late fa-
ther, his nephew and heir at law, him furviving, but the faid
H G. the younger was in very narrow circumltances, and not able
to pay off the mortgage which affe&ed the faid premifes, and
beiore the death of the faid H. G. the elder, or at fome other
time the mortgagee or mortgagees took poflefTion of all his
real eftates, and he or they, and the defendants thereto, have
been in the poffefiion* thereof ever fince, and they have paid
up all, or nearly all, the principal and intereft due on the faid
mortpage. And your orator further iheweth, he. that the faid
H. G?the younger, departed this life 1 o or 1 2 years ago, inteftate,
leaving your orator his eldeft fon and heir at law, and there-
upon the faid real eftates defcended to your orator, fubjeel to
the faid mortgage, and your orator being defirous of redeem-
inz
BILLS. 581;
ing the fame on payment of what, if any thingj remained due
by virtue of fuch mortgage, and of getting into poffellion there-
of, he hath frequently requefted the faid W. G. the elder,
M. P., and E. W. to ftate an account of the principal
money and intereft due on the faid mortgage, and alfo
of the rents and profits of the faid premifes, received by the
mortgagee or mortgagees thereof, for the time being ; and your
orator offered to pay to them what, if any thing fhould appear
to be due to them on balance. And your orator alio requefted
them to deliver poffeffion of the faid premifes to him : But now
fo it is, may it pleafc your Lordfhip, that the faid W. G. the
elder, M. P., and E. W., combining and confederating to-
gether, and with divers other perfons at prefent unknown to
your orator, whofe names when difcovercd, he prays may be
herein inferted, with apt and proper charges again it them as de»
fendants hereto, and contriving how to injure and opprefs your
orator in the premifes, they fometimes pretend, that the faid
H. G. th? elder, by fome deed or deeds, or by his hit will
and teftament in writing, limited or devifed the faid premifes,
or fome part thereof, in fee fimple, or for fome other ettafe,
to the faid confederates, or under whom they, or l'ome, or one
of them, claim or claims. But the faid confederates refufe to
difcover and fet forth, as they ought, the date of, and parties and
witneffes to fuch deed or deeds, or the date of fuch will, and
the names of the witneffes thereto, and the fhort and material
contents of f*ch deed or deeds, or will. But the faid confe-
derates will at other times admit, that the faid G. H. the elder
died inteflate, and without having otherwife difpofed of the
faid premifes. But then they pretend that your orator is not
the heir at law of the faid H. G. the elder, and that the perfon
who was his heir at his death, or fome perfon who they aliedge,
was intitled to the faid premifes, in fome manner, by fofne deed
or deeds, agreement or will, conveyed, or agreed to convey
or devife, the faid premifes, - and the equity of redemption
thereof to them, the faid confederates, or fome perfon or per-
fons, under whom they claim ; and that the laid comieferates
are absolutely intitled to the faid premifes. But they refufe
to difcover who was, and is, as they aliedge, the heir at law
of the faid H. G. the elder, and by what pedigree he or fhe
appears fo to be, and the perfon or perfons who conveyed the
faid eftates, or any of them, to the faid confederates, or to the
perfon or perfons under whom they claim the fame, or the
date or dates of, and parties and witneffes' names to the faid
deed or deeds or agreement, or the date, and the witnefles'
names to the will or material contents or the confid.ration
5 of
590 BILLS.'
of the deed or deeds, agreement or will, under which the
faid confederates claim the faid premifes, by, from or under the
alledged heir of the faid H. G. the elder, or fuch other perfon
or perfons as aforefaid ; however your orator charges that he
is the heir at law of the faid H. G. the elder, your orator
being the elded fon of the faid H. G. the younger, who
was the eldeft fon of G. G. who was the eldeft brother
of the faid H. G. And your orator further charges that
if the faid confederates (hall pretend that they are purchafers
of the faid premifes for a valuable confideration, then that fuch
perfon or perfons who fold or conveyed the fame to them,
the faid confederates, or to thofe under whom they claim,
could not, at the time of fuch fale or conveyance, make out
a legal title to the faid premifes, or any part thereof, and that
it fo appears by fome abftracl or abftraQs of the title, in the
profeffion or power of the faid confederates, and that at the
time when fuch fale or conveyance was made, the faid confe-
derates, or fome or one of them, or thofe under whom they
claim, or before the conveyance was executed, or the confi-
deration money was paid, had fome reafon to know, believe,
or fufpedt, or had been informed, that the perfon or perfons
who fold or conveyed the faid premifes, had no title, or a de-
fective or a doubtful title thereto, and that the heir at law of
the faid H. G. the elder, was not a party to the faid fale or
conveyance, and that on account of the badnefs and doubt-
fulnefs of fuch title thereto, the faid confederates, or thofe
under whom they claim, paid a very fmall and inconfidera-
ble fum, as a confideration for the faid premifes, &c. that
that they, or fome, or one of them, received fome in-
demnity, in cafe your orator, or the heir at law of the faid
H. G. the elder, fhould afTert his title to the faid premifes
and fucceed therein ; and the faid confederates, or fome or one
of them on their behalf, have or has frequently defired your
orator to releafe his right and title to the faid premifes, and
have offered him money for fo doing ; and at other times the
faid confederates pretend that they claim title to the faid pre-
mifes by other means not herein before mentioned, but by
what means, and what deeds, of what date, and when executed,
and what confideration, and when and where, and by whom
fuch deeds were executed and attefled, they refufe to difco-
ver, and they have all the deeds and writings relating to the
faid premifes in their cutlody or power, and they threaten or
intend to nonfuit your orator, in cafe he fhall attempt to re-
cover pofTeflion of the fakl premifes by ejectment ; all which
adling and pretences of the faid confederates, &c. And whether
the
BILLS. 591
the faid H. G. the elder, did ever and when, by any and
what deed or deeds, or by his laft will and teftament in
writing or otherwife, and how, limit and dcvife the faid pre-
mifes, or any and what part thereof, in fee Ample or otherwife,
and how to the faid confederates, or any, or either, and which
of them, or to any, and what perfon or perfons, under whom
they, or any, or either, and which of them, claim or claims,
and if the faid confederates (hall pretend that he did, that they
may feverally fet forth the date of, and the parties' names, and
the names of the witnefles to fuch deed or deeds, and the date
of, and the names of the witnefles to fuch will, and the fhort
and material contents of fuch deed or deeds and will, and whe-
ther any other, and what perfon, not your orator, is or al-
ledged by the faid confederates, to be the heir of the faid H. G.
the elder, and whether any, and what perfon, as the heir of
the faid H. G., or otherwife, and how did, in any and what
manner, at any time, and what time, by any and what deed or
deeds, agreements, or will, convey, or agree to convey, or de-
vife the faid premifes, or any and what part, to them the faid
confederates, or to any other and what perfon or perfons under
whom they cLim,and if the faid confederates (hall fo pretend, and
that they are abfolutely entitled to the faid premifes, that they
may fet forth who was, and is, as they alledge, the heir at law
of the faid H. G. the elder, and by what pedigree, he or fhe,
appears fo to be, or what other perfon under whom the faid
confederates claim, and the date or dates of, and the parties
and witnefles' names to the faid deeds or deed, or agreement,
and the date of, and the witnefles' names to the faid will,
and the fhort and material contents thereof, and the confedera-
tion of the faid deed or deeds, or agreement under which
the faid confederates claim the faid premifes, by, from or
under the alledged heir of the faid H. G. the elder or any other
perfon as aforefaid ; and whether the faid confederates, or any,
or either, and which of them claim any, and what title to the
faid premifes, by any and what means not hereinbefore men-
tioned j or if they fhould pretend that they do, that they may
fet forth by what means, and by what deeds, and what date,
and when executed, and for what confideration, and when and
where, and by whom fuch deeds were executed and attefted,
and whether the faid confederates, or fome or one, and which
of them, have not, or has not, all, or fome, or one, and
which of the title deeds and writings relating to the faid pre-
mifes in their cuftody or power, and that they may produce
the fame: And that an account may be taken of what, if any
thing is due for principal and intereft on the fecurity of the
4 faid
59 2 BILLS.
laid premifes, and that an account may be alfo taken of the
rents and profits of the faid premifes received by the faid con-
federates, and thofe under whom they claim, and that upon
payment of what, if any thing fhall appear to be due, to the
faid confederates on the balance of accounts, your orator
may be at liberty to redeem the premifes, and that the con-
federates may deliver up the poffeffion of the faid premifes to
your orator, and alfo to deliver up to him all deeds, papers
and writings, in their pofleffion or power relating to the faid
premifes, and affign the fame, to or in truft for your orator,
and that your orator may have fuch further and other relief
in the premifes as the nature and circumftance of this cafe dial!
require, and as fhall be agreeable to equity and good confer-
ence. }
i
[Bill fir the fpecific Performance of an Agreement.
Humbly complaining fheweth unto your Lordfhip, your
orator R. O. of in the county of efq. that
your orator now is, and for fome time before the year 1779,
was feifed or intitled in fee fimple of, or to the freehold mef-
fuages or tenements, with the lands and other appurtenances
thereto belonging fituate in in the county of and your
orator being fo feifed or intitled, and being defirous to make fale
thereof, did fome time before the 25th of March, in the
year 1779* employ and impower John Kirby of
in the faid county of gentleman, to agree on be-
half of your orator, with any perfon or perfons at and for fuch
price or prices as he fhould think fit. and acccordingly the faid
J. K. treated with J. M. of S., in the faid county of S. gen-
tleman, for fale of fuch mefiuages, tenements and heredi-
taments unto him the faid J. M., and at length they came
to an agreement for fuch purchafe, and thereupon articles of
agreement in writing, bearing date the 25th day of March
1779, anc * ma( i e between the faid J. K. on behalf of your
orator of the one part, and the faid J. M. of the other part,
were duly executed by the faid J. K. and J. M. whereby the
faid J. K. in confederation of the fum of 2200I. to be paid as
therein and hereinafter mentioned, agreed that your orator or his
heirs, fhould or would, on or before the 5th day of July thei>
next, to the fatisfa£tion of the faid J. M. or of his heirs, and of
his or their counfel, make out a good title to the premifes
hereinafter mentioned, and by good and fujficient convey-*
ances, furrenders and affurances in the law, with reafon-
able covenants, fuch as the counfel of the faid J. M, fhould
advife,
BILLS. 593
ndvife, convey and allure, or caufe to be conveyed and af-
fured, unto the faid J. M and his heirs, as he or they
fhou!d appoint, free from all incumbrances 'exce-pt a p rpe-
tual dr linage tax charged upon the premifes, or fomc- part
thereof) and particularly a good eitat<- of inheritance of, in,
and to all that rhefluage or tenement, [recite the agreement,) and
in confideration thereof, the Lid J. M did thereby covenant
and agree with the faid J. K. that he the faid J. M. would
pay or caufe to be paid to your orator, his heirs, executors or
administrators, the faid fum 0L2200I. immediately upon the exe-
cuting of fuch conveyance as aforefaid ; and it was thereby
mutually agreed that your orator, or his heirs, fhould be at the
expence of making a good title to the faid premifes, and that
the faid J. M. fhouid be at the expence of the conveyances
and affurafices to be made thereof to him as aforefaid, and
that the faid J. M. fhou d have the rents and profits of the faid
premifes from the faid 5th of July, provided the purchafe
of the faid premifes fhould be compleated on or before that
day, but not otherwife, as in and -by one part of the faid ar-
ticles of agreement, now in the euftody of your orator and
•ready to be produced, (reference being thereto had) will more
fully appear. And your orator further fheweth unto your
Lord (hip, that in confequence of the faid articles of agreement,
and in order to the performance thereof on the part of vour
orator, who hath, been ever fince he heard thereof, which was
{hortly after the date thereof, willing to perform the fame,
an abftracr. of the title to the faid eftute was on your orator's
behalf, {hortly after the Aztz of the Lid articles of agreement,
fent unto the attorney concerned for the faid J. M. for his
perufal, together with all and moft of the deeds mentioned
in fuch abitract, for the infpection of fuch attorney^
or of the eounfel of the faid J. M., and feveral objections
having been from time to time made to your orator's title
to the faid tftate, by the eounfel or conveyancer, before
whom fuch abftract was laid by or on behalf of the Lid
J. M., all fuch objections were long- fince anfwered or cleared
up, to the Ltisfaclion of fuch counfei or conveyancer, who
long fince, by writing under his hand or otherwife, approved
of your orator's title to the faid meffuages and premifes,
wherefore the Lid J. l\i ought long fince to have paid to
your orator the fum of 22ccl on having a proper conveyance
of the faid meffuages and premifes according to the Lid ar-
ticles of agreement executed by your orator, and upon hav-
ing poffefTion of the faid meffuages and premifes delivered
unto him. And your orator hath at feveral times fince your
Vol. I. O q orator's
5;4 BILLS.
orator's title to the faid meffuage and premifes was fo ap-
proved, in, and by letter*, and by your orator's agent in a friendly
manner applied unro the faid J. M., and informed him of your
orator's readinefs to make and execute a proper conveyance
of the faid meffuages and premifes, on payment of the faid
fum of 2200I., and therefore requefted the faid J. M. to pay
unto your orator the faid fum of 2200I., and your orator
well hoped that fuch his requefts would have been complied
with : But now fo it is, may it pleafe your Lordfhip, that the
faid J. M. combining, &c. how to injure and defraud your
orator in the premifes, and how to defeat your orator of the
benefit: of the faid articles of agreement, he the faid J. M.
fomecimes pretends that he did not execute any fuch, or the
like articles of agreement as aforefaid, or, that your orator
cannot make out a good title to the meffuages or tene-
ments, lands and hereditaments, or not to all the parts
thereof, or that your orator hath not made out fuch title to
the fatisfa&ion of him or his counfel or conveyancer ; where-
as your orator charges the contrary of all fuch pretences
to be true, but neverthelefs under fuch and the like pretences
as aforefaid, or fome other equally unjuft, the faid J. M. refufes
to perform the faid articles of agreement on his part, all which
actings, &c. in the tender confideration, fee. And that the
faid articles of agreement dated 25th of March 1779, may
be fpecifically performed and carried into execution by the
faid J. M., your orator hereby offering to perform the fame
on his part, and that the faid J. M. may pay unto your orator
the faid fum of 2200I., your orator offering thereon to con-
vey the faid meffuages, tenements, lands and hereditaments!
unto the faid J. M., and that your orator may have, &c]
{Prayer of Bill for fpecifc Performance by Vendee.
And that the faid defendant may be compelled fpecifically
to perform the faid agreement, by executing the proper
conveyances, fo tendered to the faid defendant as aforefaid, of
all and fingular the premifes unto your orator and his heirs,
free from incumberances, your orator being thereupon ready
and willing, and hereby offering, to pay to the faid defendants,
the faid fum of refidue of the faid purchafe mo-
ney, and that the faid defendant may deliver up to your ora-
tor all the title deeds and writings in the hands, cuftody,
or power of the faid defendant; which anywife relate to the
faid premifes.]
Bill
BILLS. $95
[Bill by Fxecutor to a/certain the Rights of feveral Claimants, to
the Reftdue of the perfonal Eftate of the Teftator, and in luhat
Proportions it is to be dijlributed among them.
Humbly complaining:, fhewerh unto your Lordfhip, your
orator H. L. of", Sec. : That J. L. late of, &c deceafed, brother
to your orator, being poffl-ffrd of a very considerable pe fonal
eftate, and being of found mind and understanding, duly made
and publifhed his laft will and teftament in writing, bearing
date, &c, and thereby after giving divers fpecific pecuniary
legacies, and amonglt others a legacy of 10 guineas each to
the poor of A and N., to be diftributed by his executor or
executors on Chriftmas day next after his death, and a legacy
of irol. to his nephew R L., he gave and bequeathed the re-
fidue of his property in the words following, that is to fiy,
«' the remainder and refidue of my eftate if any, and effects
of what nature foever and wherefoever, which I fhall at my
deceafe be fcifed or poffeffed of, or intitled unto or interested
in, I give next kin or heir at law, whom I appoint my execu-
tor, after all my debts and funeral expences are paid," as in
and by the faid will or the probate thereof, now in the poffef-
fion of your orator and ready to be produced, as this honoura-
ble court fhall dirett, (reference being thereunto had,) will more
fully appear, &c. And your orator further fheweth unto your
Lordfhip, that the faid teftator departed this life on the 27th
day of December 1 797, without altering or revoking his faid
will, leaving W. L. S. of, &c. his nephew and heir at law,
and your orator, his only brother, and the faid W. L. S., C. L. of
&o, W. L. of, &c, ind the faid R. L. of, &c. his nephews and
next of kin him furviving. And your orator further fheweth
unto your Lordfhip, that upon the death of the faid teftator,
your orator conceiving himfelf as his only brother, to be his
heir at law and next of kin, proved the faid will in the prero-
gative court of the archbifhop of Canterbury, and by virtue
thereof, poffeffed himfelf of all the perfonal eftate and effects
of the faid teltator, to a considerable amount, and more than
fufficicient to pay all his juft debts, legacies, and funeral ex-
pences. And your orator further fheweth unto your Lord-
fhip, that the perfonal eftate and effects of which the faid tef-
tator died poffeffed as aforefaid, and which Qasie to the
hands of your orator, confiited of the fun 1610I., fbort an-
nuities ftanding in the name of the faid teftator, in the books
of the governor and company of the bank of England, of the
fum of 135I., long annuities likewife ftanding in the name
of the faid teftator, the fum of 450I. in cafh, in the hands
Qji 2 ' of
596 BILLS.
of the bankers of the faid teftator, certain dues then owing
to him the faid Deflator, to the amount of 250I. or therea-
bouts, and iome plate and houfehold furniture. And your
orator further fheweth uiro your Lordfhip, that your orator
hath out of the affets of the faid teftator, fo come to his hands
as aforefaid, fatisfied and difcharged all the debts of the faid
teftator, which have come to the knowledge of your orator,
and his funeral expences, and fome of the legacies given by his
will, and your orator is willing and defirous to pay the reft
of the faid legacies, given by the faid will of the faid teftator,
and to pay or to diftribute the refidue of the perfonal eftate,
to and amongft fuch perfon or perfons as fhall appear to be
intitled thereto: But now fo it is, may it pleafe your Lord-
fhip, that the faid W. L. S. claims to be alone intitled, as af-
fwering the defcription of the heir at law of the faid teftator
contained in the faid will, to the refidue of his perfonal eftate,
and the faid C. L. W. L. and R. L. claim to be intitled, as
three of the next of kin of the faid teftator, to refpedtive
{hares of the perfonal eftate of the faid teftator, under the de-
fcription of his next of kin, and your orator, who is willing
and defirous to pay the refidue of the perfonal eftate of the faid
teftator, to fuch perfon or perfons as is or are intitled to re-
ceive the fame, docs not know to whom he ought to pay the
fame, and is advifed that he cannot aft fafely herein without
the direction of this honourable court ; and your orator charges
that if the refidue of the perfonal eftate of the faid teftator
is, according to the true cc-nftruction of the faid will of the
faid teftator, to be diftributed amongft his next of kin, the
fame ought to be diftributed amongft them in fuch fhares and
proportions as they would have been intitled unto, according
to the ftatute of diftributions if the faid T. L. had died intef-
tate, and that therefore your orator ought to be permitted
to retain as the only brother of the faid teftator living at
the time of his deceafe one full third part for his own ufe ;
whereas the faid defendants pretend and injift that the next
of kin of the faid teftator are under the faid will, intitled to
the refidue of his ptrfonal eftate, equally, fhare and fhare
alike, ard that your orator is therefore intitled to retain only
one fifth part thereof for his own ufej to the end therefore
that the faid W. L. S., &c. And that upon a full difcovery
of *he feveral matters and things as aforefaid, it may be afcer-
tained by the decree of this honourable court who is intitled,
and in what fhares and proportions refpe&ively, to the refidue
of the perfonal eftate of the faid teftator, after payment of his
debts, funeral expence3 and legacies, your orator being ready
and
BILLS. 597
and willing, and hereby fubmitting to account with the faid
defendants for all the perfonal eftate and effects of the faid
teftator, which have corne to his hand.-, or to the hands of
any perfon or perfcns by his order, or for his ufe, and to ap-
ply the fame in due co.urfe of administration in the payment
of the debts if any fuch tlill remain unpaid, and of the lega-
cies of the faid teitator, and to pay the refidue of the faid per-
gonal eftate unto, and amongft fuch perfon or perfons, and in
fuch fhares and proportions as this honourable court fhall di-
rect, and that your orator may have fuch further and other
relief in the premifes, as the nature of the cafe may require,
and to your Lordfhip fhall feem meet. May it pleafe your
Lordfhip, &c.J
[Amicable BUI by Infants, refuluary Legatees, as to Party againjl
Trujlees for an Allowance for their Jllai\te:iance, and for an
Account.
Humbly complaining, fhew .unto your Lordfhip your ora-
tors A. B. and C. of, &c, being the only younger children of
D. of efq., who were living at the time of the death
of E. late of, &c. deceafed, the teltator hereinafter named,
and your orators being infants under the age of 2 1 years, by
F. their next friend, that the faid E. was in his life time and
at the time of his death feifed in fee of, or otherwife entitled to
divers freehold and copyhold eftates, fituate in the feveral piaces
hereinafter mentioned and elfewhere, of confiderabl ■ yearly
value in the whole, and being pofiefTed of, or intitled to per-
fonal eftate and effects, confuting of houiehcld goods, &c.
to a very considerable amount or value in the whole, and be-
ing fo feifed, pofiefTed or intitled, and having duly furrendered
his copyhold eftates to the ufe of his will, and being of found and
difpofing mind, memory, and understanding, he the faid E.
made and publifhed his laft will and teftament in writing,
bearing date on or about 20th of July 1 5 So, and which was
executed and attefted in fuch manner, as by law is required for
pafling real eftates, and thereby after giving feveral pecuniary
legacies which he directed fhould be paid out of the money
which fhould arife from the rents and profits ot his real ef-
tates and intereft; of his money, he gave and deviled all the
refidue of his real and perfonal eftate and effects unto L. M.
and N., and to their heirs, executors, adminiftrators and afligns,
upon truft to divide the fame refiduary eliate and effects into
four equal fhares, and thereby gave one fourth part to C. his
heirs and affigns for ever, and he gave one other fourth part to P.
Q^q 3 his
598. BILLS.
- Vis heirs and aftigns forever, and he gave one other fourth part
to Q^his heirs and affigns for ever, and the faid teftator thereby
declared his will to be, and direded that the remaining fouith
part of his faid refiduary eftate and effeas fnould be retain-
ed in the hands of the faid truftees, and the furvivor of them
for the ufe of all and every of the children of the faid D.
(except the eldeft fon) who mould be living at the death of
the faid teftator, and he gave and devifed the fame to fuch
children, in equal {hares and proportions to be fettl.d by
the faid truftees, and to be transferred and affigned over to
each pf the younger children of the faid D. on his her, or their
attaining the age of 21 years; and he directed that the {hare
of either of the faid other children, dying under the age of
21 years, {hould go to the furvivor or furvivors of them and
their heirs and affigns for ever ; and he alfo directed that
the faid truftees or the furvivor of them, {hould during mi-
nority of fuch younger children, by fale or private contract,
difpofe of the faid fourth part of his refiduary eftate and effects,
and collect and receive the rents, iffues and profits thereof,
and lay and place out the fame, and the intereft and produce,
thereof at intereft, for the benefit of fuch younger children 5
and the faid truftees or the furvivor of them {hould be at li-
berty, at any time during the minority of fuch younger children,
to advance as much money as they or the furvivor of them
fhould think proper, out of the ftiares or proportions of the
faid fourth part of the faid refiduary eftate and effect?, as mould
belong to any fuch child or children, to the purpofe of putting
fuch child or children to any trade or profeffion, for their or
either of their better maintenance, education, and bringing
up ; and the teftator thereby appointed the faid L. M. and N.
and the furvivor and furvivors of them, jointly and feverally,
executors of his faid will in truft, for the purpofe aforefaid,
as by the faid will or the probate thereof will more fully ap-
pear. And your orators further {hew unto your Lordfhip,
that the faid E. departed this life fometime in or about
March 1781, without having revoked or altered his faid
will, leaving H. his heir at law and your orators the young-
er children of the faid D. living at the time of the death
of the faid teftator; and foon after his death the faid
L. M. and N. or fome or one of them duly proved the faid
will in the proper ecclefiaftical court, and took upon themfelves
the burthen of the execution thereof, and they, or fome or one of
them, or fome other perfon or perfons by their or one of their
order, or for their or one of their ufe, have or hath gotten
into their or his cuflcdy, power or poffeffion, all the perfonaj
eftate
BILLS. 599
eftate and effects of the faid E. or fo much thereof, as they
or he have or hath been able to a very large amount or v-due
in the whole, and more than fufficient to pay and difchaige all
his debts, legacies and funeral expences •, and great part of
fuch perfonal eftate, or the produce ther. of, having been
during all or fome part of the time, fince the death of the
faid teftator E. continued, or placed out at intereft, the exe-
cutors, or fome or one of them, have or hath from time to
time received fun dry fums of money to a large amount, for
or in refpect of intereft or dividends arifen thereon, fince the
death of the faid teftator E. and they or fome of them have
or hath entered upon, and taken poffeffion of all the freehold
and copyhold eftates of the faid E. which were not fpecifi-
cally devifed by the faid will, and they, or fome or one of them
have, or hath been, and now are in poffeflion and receipt of
the rents and profits thereof : And your orators further fhew
unto your Lordfhip that your orators have frequently by the
faid F., and other perfons on their behalf, applied unto and
requcfted the faid L. M. and N, to account for all teftator' s
perfonal eftate and effects, and the intereft thereof, and the
rents and profits of his real eftates, not fpecifically devifed by
his faid will, and to make divifion thereof according to the
directions of the faid will, and to fell fuch part or fhare there-
of as {hould belong to your orators, and to lay out the money
which (hould arife by fale thereof, in fome publick funds, or
other fufficient fecurity, for the benefit of your orators, and
to allow out of the intereft and dividends, which ihould arife
from fuch principal fum, a fufficient yearly fum for the better
maintenance and education of your orators for the time paft
fince the death of the faid E. and for the time to come; but
the faid L. M. and N. have thought fit to decline to comply
with fuch requefts, alledging that they cannot do the fame
with fafety, without the direction of this honourable court for
their justification therein; and the faid O. P. and Q^ refpec-
tively claim to be intitled each to one fourth part of the
refiduary eftate and effects of the faid E., but they re-
fufe to join in this fuit with your orators. And the faid H.
gives out and pretends that the faid teftator in h:s life time
never made or executed his laft will and teftament of fuch
date, purport and effect as is hereinbefore mentioned, and
fet forth, or if he did, yet that he was not of found and
difpofing mind, memory, and understanding, at the time of
of making and executing fuch will, or if he was, yet that the
fame was not executed in fucli manner and form, as by law is
required for the palling of real eftates, and therefore the faid
Q^q 4 defendant
6co BILLS.
defendant infills he is well intitled to all and lingular the real
eftate of the faid reftator, and to the rents, iflues, and profits
thereof, wh'ch have accrued due fince his death; whereas
your orators exprefsly charge the contrary of all fuch pretences
to be true, and that the faid teftator while he was of found
and dt 'poling mind, memory, and underiianding, did duly
make and execute his laft will and ieftament in writing of
fuch date, purport and effect, as is herein-before mentioned
and fet forth, and that under and by virtue thereof your
orators arc now become well intitled to certain fhares and
proportions of all the faid teftator's real eitates thereby de-
viled. And that the faid defendants L. M. and N. may fet forth,
a true and particular account of all the perfonsl eftate and effects
of the faid teftator, fas before J and likewife of all fums of money
which have fince the death of the faid teftator become due, for
or in refpecf of the rents and profits of the faid lands and here-
ditaments, and which have been received by, or by the order, or
for the ufe of them the laid defendants L. M. and N. or
either of them, and when, and from whom, and for what
rent, and for what part of the faid lands and hereditaments, and
when due, and when all and every fuch fums were refpettively
received, and alfo a particular account of all fums which have
fince fuch time been paid or allowed by them for taxes on ac-
count of the faid lands, and when, and to whom, and for
what all fuch fums were refpectively paid and allowed. And
that the will of the faid E. may be eftabiifhed and the trufts
therein performed and carried into execution, and that the
real eftate ol the faid E. not particularly devifed by the faid
will may be fold, and toat all prop? r parries may join in fuch
fale, and in order thereto that the title deeds, and writings
relating to fuch tftates, may be produced, and that an account
may be taken ol the ptrlonal eftate and effects of the faid E.
and the intereft and income thereof, fince his aeath, and of
the rents and profits ol his real eftates become due fince his
death, and of his tuneral expences, and legacies, and that one
fourth part of the clear refidue of the faid perfonal eftate, and
of the intereft thereof, and of the rents and prodts, and the
money arifing by the. fale, of the faid real eltates, and which
fnali remain after payment of debts, Sec. of the faid teftator,
may be placed out at intereft, and fecured, and improved for
the benefit of your orators until they ihall become capable of
receiving the fame ; and that in the meantime a iuitable al-
lowance may be made out of the income thereof for their
maintenance and education ]
- [Bill
BILLS. 60 1
[Bill of Interpleader.
Humbly complaining, fheweth unto your Lordfhip your ora-
tor I. C. of, &c. that 'fome time in the month of your ora-
tor having occafion to borrow and take up at interefl the furrt
of 70 I. applied to R. P. of Carpenter, to lend
and advance the fame, and the faid R. P. advanced the fame
to your orator, and your orator gave a promiflory note for
the faid fum of 700I. to the faid R. P., bearing date the
and payable fix months after date : And your orator
further fheweth, &c. that foon after your orator had borrowed
the faid fum of 70 _1. of the faid R. P. and had given him
the faid note for the fame, it was by fome means
difcoyered, and the faid R, P. confefTed and acknow-
ledged, as the truth really was, that he had found the faid 700I.
which he lb lent to your orator, hid under the floor, or in
fome other part of an ola farm houfe, at which the faid R. P.
had been at work, and which houfe had for many years been
held and occupied as tenant to W. B. by J. W. deceafed, and M.
his wife, alfo deceafed. And your orator further fheweth, &c.
that the faid W. B., as owner of the faid houfe (in which the
faid fum of 700I. was found), claimed to be intitled thereto,
and infiifed that the faid R. P. fhould give up the faid note of
hand, wt>ich he had fo received from your orator for the faid
fum of 700I. lent to him, and that your orator fhould give
him the faid W. B. a frefh fecurity for the fame, and the faid
R. P. conceiving that he was not juitly intitled to the faid
fum of 700L agreed to give up the faid note of hand to your
orator, and that your orator fhould give a bond for the fame
to the faid W. B., and accordingly the faid R. P. did on or
about the day of deliver up the faid
note of hand to your orator to be cancelled, and the fame
was cancelled. And your orator further fheweth, &c. that upon
the faid of your orator entered into and
executed a bond to the faid W. 15. in the penal fum of 1400I.
conditioned for the payment of 700!. and lawful interelt for the
fame at the time therein mentioned, and the faid R. P. was, and is
oneof thefubfcribingwi:neflestothefaidbond,asbythefaid bond
&c. And your orator further fheweth, &c. that H. W. and J. W.
who are the administrators of M. W. their late mother deceafed,
and executors of their late father J. W. deceafed, claim to
be intitled to the faid fum of 700I. and have given notice of
their faid claim to your orator, and in fupport of fuch claim
they alledge that the laid farm houfe, in which the faid 700I. was
found, was feveral years ago occupied by their father, the
faid J. W. and by the faid M. his wife, and during fuch time
7 the
6o2 BILLS.
the faid J. W. his wife, or one of them, kept or concealed
the faid money, in the faid houfe, and therefore they infift
that the faid fum of 700I. is their property, and that your
oraror ought to pay the fame to them, and they threaten to
bring an action againft your orator if he pays rh fame to any
other perfon. And your orator further fheweth 'hat C. Q.
efq. who is lord of the manor of , of which the
fame farm houfe, in which the faid money was found, is parcel
claims, as lord of the faid manor, to be intitled to thr faid fum
of 700I. as treafure trove, and hath given notice of Hs faid
claim to your orator, and infifts that your orator ought to
pay the faid fum of 70CI. to him, and he threatens to bring
an action againft your orator, if he p~ys the fame to any
other perfon, and the faid R. P. now alledges that he never
agreed to give his right in the faid fum of 700I. and intereft to
the faid W. B., but he alledges that he was impofed on in fome
manner by the faid W. B. in the faid tranfan&ions, and
therefore the faid R. P. claims to be ftill intitled to the faid
fum of 700I. and infills that your orator is ftill liable to pay
the fame to him, and threatens to bring an aftion againft your
orator for the recovery thereof. And your orator further fhew-
eth unto your Lordfhip, that in or about Michaelmas term
laft the faid W. B. although he has no other right to the faid
money than as landlord of the faid houfe where it was found,
brought an action againft your orator in His Majefty's court
of K. B. upon the faid bond, and he threatens to proceed to
judgment therein, and to fue out execution againft your ora-
tor for the faid 700I. and intereft, and the faid H. W. and
J. W. C. O. and R. P. likewife feverally threaten and intend
to bring actions againft your orator for the recovery of the faid
fum of 700I. and intereft, having given notice to your ora-
trix of their faid claims to the faid money, and infift that
he fnould not pay the fame but to each of the faid claimants :
And your orator further fheweth, &c. that when he borrowed
the faid money from the faid R. P. as aforefaid, he was an intire
ftranger to the circumftance of the fame having been found
by him as aforefaid, and your orator by reafon of the aforefaid
feveral claims to the faid 70CI. and intereft, does not know to
which of the faid parlies he can fafely pay the fame, but he is
ready to pay the fame into this honourable court, in order that
the faid feveral parties may interplead and fettle their claims
thereto among themfelves, and he well hoped they would have
done fo ; but now fo it is, may it pleafe your Lordfhip, that the
faid R. P. W. B. R W. and C. O. combining, and &c. the
faid defendants infifting upon your orator's paying the faid
70c!. and intereft to each of them, and each of them threatens
to
BILLS. &>3
to bring an acYion againft him to compell him fo to do; all
which actings, &c. In tender confideration, &c. and foras
much as your orator is remediiefs in the premiss without the
affiltanceof a court of equity, where matters of this nature are
properly cognizable and relievable, and where the faid claim-
ants may interplead, and fettle and adjuft their rights and de-
mands between themfelves, fo that your orator may be enabled
to pay the faid fum of 700I. and intereft, with fafety ; to the
end therefore, Sec. and that the faid defendants m:;y feverally
fet forth to which of them the faid fum of 700I. doth of right
belong, and is payable, ana how in particular they make out
their claim thereto, and that the faid defendants may interplead
and fettle, and adjuft their faid demands between themfelves,
your orator being willing and defirous, and agreeing that the
faid fum of 700I and intereft, fhould be paid to fuch of them
to whom the fame (hall in the judgment of this honourable
court appear qf right to belong, and that your orator may be
at liberty to bring and pay the faid 700I. and intereft into
this honourable court, which your orator doth hereby offer to
do for the benefit of fuch of the faid defendants wno (halt
appear to be intitled thereto, and fubje£t to the further order
of the court, and that the faid defendant W. B. may be re-
ftrained by the injunction of this honorable court, from pro-
ceeding againft your orator in his faid action upon the faid,
bond, and may deliver the fame to your orator to be cancelled,
and that all the faid defendants may be retrained frpm com-
mencing any action or aclions againft your orator for the re-
£Overy of the faid 700I. and intereft, or touching any of the
matters or things aiorefaid. And for general relief.]
[ Bill of Revivor.
Humbly complaining, fheweth unto your Lordfhip your ora-
tor J. W. of, &c. clerk, That your orator on or about the
25th of March 1796, exhibited his bill of complaint in this
honourable court againft E. J. G and E. his wife, and A C.
and J. his wife praying that {here fate prayer of the bill verbatim.)
And your orator further fheweth unto your Lordfhip that the
faid defendants to the faid bill afterwards appeared, and put in
their anfwers thereto, and your orator, by virtue of an order of
this honourable court, amended his faid bill. And your orator
further fheweth unto your Lordfhip, that before any anfwer
was put in by the faid defendants to the faid amended bill,
or any further proceedings were had in the faid caufe, that is
to fay, on or about the day of in the
year 1 796, the faid E. the wife of the faid E. J. G. died leaving
jhree daughters E A G. FMG. and GRG. her only chil-
dre
604 BILLS.
dren and coheireffes at law her furviving, and by the death ot
the faid E. the wife of the faid E. J. G. the faid fuit became
abated, and your orator is advifed that the faid fuit and pro-
ceedings ought to (land revived againft the faid E A G. F
M G. and GRG, and be in the fame plight and condition
as they were in, at the time of the death of the faid h. G.
deceafed. To the end therefore th„t the faid fuit and pro-
ceedings fo ab-ited as a fort faid may ftand and be revived againft
the faid E A G. F M G. and G R G., and be m the
fame plight, ft ate and condition as the fame were in at the
time of the abatement thereof, or that the defendants may
(hew good caufe to the contrary. May it pleafe. your Lordfhip,
&c]
[Supplemental Bill.
Humbly complaining, fheweth unto your Lordfhip your
orators W, T. and T. T, W. that your orators din on or
about the d^y of exhibit their original
bill of complaint in this honourable court' againft Sir W. D.
and others, thereby ftating as therein is particularly ftated,
praying, (Jlate the prayer -verbatim,) as in and by the faid
bill of complaint now remaining, as of record in this
honourable court, (relation being thereto had) may, and
will appear: And your orators further (hew unto your Lord-
fhip, that the faid defendants have been ferved with procefs
of fubpoena, and have appeared to the faid bill, but have not
yet put in their anfwers thereto. Ard your orators further
fhew unto Lordfnip, by way of fupplement, that fince their
faid bill was filed, that is to fay, on cr about the day of
a commiffion of bankruptcy under the great feal
of Great Britain, was ifiued and awarded againft the faid Sir
W. D. and he hath fince been declared a bankrupt thereon,
and A. B. of, tic and C. D. of, &c have been chofen af-
figneees of all his eftate and effects : And your orators further
fhew unto your Lordfhip, that the faid A. B. and C. D.,
fince they have been fo chofen affignees as afore faid, have got
into their, or one of their cuilody or power, all and every
the monies and fecuritier, for money, good?, and effects be-
longing to, and obtained from your orators, as in the faid
original bill of complaint is particularly mentioned, which
were in the hands, cuftody, or power or the laid Sir W. D.
at the time he became a bankrupt, as aforelaid \ and the faid
A. B. and C. D. not only refute to difcover unto your ora-
tors any part of the effects fo found, and taken ""pofkflicn of
by the laid A. B. and C. D. as affignees of the faid bankrupt
as
BILLS. 60s
33 aforefaid, but threaten to commence fome action or actions
againft your orators, upon fome of the fecurities for money
obtained from your orators at the time, and in the manner in
the original bill of complaint particularly mentioned. To the
end, therefore, that the faid defendants A. B. and C. D. may
anfwer all, and every the matters and things her^in-before
charged by way of fupplement ; and that your orators may
have fuch, and the fame relief againft the faid A. B. and C. D.
a:, m and by the faid original bill is prayed again t the faid Sir
W. D., and that the faid A. B. and C. D. may be reftrained
by the injunction of this honourable court from commencing
or bringing any action or actions whatfoever againft your ora-
tors, or either of them, or othervvife molefting them, or
either of them, or their or either of their eftate or eftates,
touching or concerning any of the matters in the original bill
of complaint particular! icntioned, and alfo from negotiating
or parting with any of tne bills, bonds, or warrants of at-
torney, executed by your orators, as in the faid original bill
of complaint is particularly mentioned, which now remain in
the hands, cuitody or power of the faid defendants, or either
of them ; and for general relief ]
[£/'// of Revivor and Supplement.
Humbly complaining, fhew unto your. Lordfhip your ora-
tors, A. B. and C. D. as well on behalf of themfelves, as of
all and every other the creditors of E ?. late of, &c. de-
ceafed, who (hall come in and contribute to the exp^nce of
this fuit, that your orators did on or about term,
which was in the year exhibit their bill of compiaint
in this honourable court againft praying, {Jlate the
prayer verbatim.') And your orators further fhew, &c. that the
faid late earl of Derby having received your Lordfhip's letter
mifTive, and the other defendants having been ferved with
procefs otfubpoena, appeared to and put in theirfeveral anfwers to
the faid bill, &c. but before publication pafied, or any further
proceedings were had in the faid caufe, the faid earl departed
this life, and the faid fuit having become abated thereby,
it was afterwards in or about term, which was in the
year , duly revived againft the right honourable
Edward the prefent earl of Derby, the gr-mdfon and heir at
law of the faid late earl; and again It G H. and I. K. the fur-
viving executors named in the laft wil and teftament of the
faid late earl, and the faid caufe after publication had palled
thereon came on to be heard before the riemurrer of ? &c.
This defendant by proteflation not confeffing any of the
matters and things contained in the faid bill, to be true as
therein alledged, faith that he is advifed by his counfel, that
the complainant's faid bill is infufEcient, and to which, by the
r-ul
c«
DEMURRERS. 6n
-rules of this honourable court, this defendant ought not to
be compelled to make or give any anfwer, and for caufe of
demurrer thereunto, this defendant fheweth that it appears
bv the faid bill, that the fame is exhibited again !t this defen-
dant and J. S. for feveral diftindt matters and caufes, in many
whereof, as appears by the faid bill, this defendant in not in
any manner interefted or concerned, by reafon of which dif-
tinci matters, the faid complainant's faid bill is drawn out to
a considerable length, and this defendant is compelled to take
a copy of the whole thereof, and by joining this defenda.it
and diftinc~r. matters together, which do not depend on each
other in the faid bill, the pleadings, orders, and proceedings
will in the progrefs of the laid fuit be intricate and prolix, and
this defendant put to the unreasonable and unneceffary charges
in taking copies of the fame, although feveral parts thereof no
ways relate to or concern him ; for which reafon, and for divers
other errors appearing in the faid bill, this defendant doth de-
mur thereto, and he prays judgment of this honourable court
whether he fh.ul be compelled to make any further or other
anfwer to the faid bill, and he humbly pr.tys to be difmifTed
from hence with his reafonable cods, on this behalf fuf-
tained.
Note. As the defendants may combine together to defraud
the plaintiff of his rights, and fuch a combination is ufually
charged by a bill, it has been held that the demurrer mull fo
far anfwer the bill as to deny combination. Mitf. 147.]
[Conclufton of an Anfiver inffing that the Paintijf is not intitled
to Relief in hquity, and claiming the Benefit of tnat Defence as
if the Bill had been demurred to.
And this defendant fubmits to this honourable court that
all and every the matters in the faid compiamant's bill men-
tioned and complained of, are matters which may be tried and
determined at law, and with rcfpecl: to which the faid com-
plainant is not entitled to any relief from a court of equity,
and this defendant hopes he {hall have the fame btnelit 01 this
defence, as if he had demurred to the faid complainant's bill,
and this, defendant denies, &c»]
R r 2 [Plea
6 12 PLEAS.
\Plea of the Statute of Fraudi to a Barol Agreement, and Anfiuff
to Jupport the Plea.-
The Plea of A. B , Defendant, to Part, arid his
Anfwer to the Refidue of the Bill of Com-
plaint of C. D. Complainant.
This defendant by proteftation, not acknowledging or con>
feffing all or any of the matters or things in the faid bill con-
tained to be true in fuch fort, manner and form as the fame
are therein and thereby alledged, to fo much of faid bill as
feeks to compel th ; s defendant fpecifically to perform the
agreement in the faid bill mentioned to have been made, and en-
tered into between the faid complainant and this defendant for
fale by this defendant unto the complainant, of a certain meffuage
or tenement in the bill mentioned, or as feeks to compel this
defendant to execute a conveyance of fuch meffuage and tene-
ment unto the faid plaintiff, purfuant to any fuch agreement, or
as feeks any other relief relating to fuch meffuage and tene-
ment, or as feeks any difcovery from this defendant, of and
concerning any agreement made or entered into between the
complainant and this defendant for file by this defendant, unto
the faid complainant of the faid meffuage and tenement, and not
reduced into writing and figned by this defendant, or fome perfon
by him this defendant lawfully authorized, this defendant doth
plead in bar, and for plea faith that by act of parliament made
in the 29th year of his M.ijefty king Charles the Second, en-
titled an a£t for prevention of frauds and perjuries, it was
amongit other things enacted, that from and after the 24th
of June 1677, no action fhould be brought whereby to charge
any perfon upon any contract or fale of lands, tenements or
hereditaments, or any intereft in or concerning them,'unlefs
the agreement upon which fuch action fhould be brought, or
fome memorandum or note thereof fhould be in writing, and
finned by the party charged therewith, or by fome other per-
fon thereunto by him lawfully authorifed, as by the faid act
may appear ; and this defendant for further plea faith, that
neither he, this defendant, nor any perfon by him lawfully au-
thorifed, did ever fign any contract or agreement in writing
for making and executing any fale or conveyance to the faid com-
plainant of the faid meffuage or tenement, or any part thereof,
or any intereft thereof, or to any fuch effe£f, or any memo-
randum or note in writing of any fuch agreement, all which
matters and things this defendant doth aver to be true, and is
ready to prove as this honourable court (hall award, and there-
fore he doth plead the fame in bar, to fe much and fuch parts
of
PLEAS. 613
of the faid bill as aforefald, and humbly prays the judgment
of this honourable court, whether he fhall be compelled to
make any further and other anfwer to fo much, and fuch parts
of the faid bill, as are herein and hereby pleaded unto as atore-
faid : And this defendant not waiving his faid plea, but whol-
ly relying and infilling thereon, and in aid and fupport there-
of, for anfwer to the refidue of the faid complainant's bill
not hereinbefore pleaded unto, or to as much thereof as lie
this defendant is advifed it is in any ways material or necei-
fary for him to make anjfwer unto, anfwering faith, &c ]
[Plea cf the Statute of Limitations.
The Plea of O. P. Defendant, to Part, his An-
fwer to the Refidue of the Bill of Complaint
of S. P. Complainant.
This defendant, &c. to all the difcoveries and relief in and
by the faid bill fought from or prayed againft this defendant,
other than and except fuch parts of the faid bill as feeks a dif-
covery of or concerning the age of T. N. P. in the faid bill
named, or a difcovery whether the faid T. N. P. out of refpect
or affection for the faid T. P. his father, did not forbear or was
not unwilling to take or ufe any compulfory means for obtain-
ing a fettlcment of the accounts of the matters in the faid bill
mentioned, this defendant doth plead in bar, and for plea
faith, that by an ad of parliament made and paffcd in the 21 ft
year of the reign of James the Ffrft, entitled an act for limi-
tation of actions for avoiding of fuits in law, it was enacted
that all actions of account and upon the cafe, other than fuch
accounts as concern the trade of merchandize between mer-
chant and merchant, their factors or fervants, all actions
grounded upon any lending or contract without fpeciaky,
and all actions of debt for arrears of rent, or any of them which
fhould be fued or brought at any time after the end of the then
feffions of parliament, fhould be commenced and fued within
three years next after the end of the then fefTion of parlia-
ment, or within fix years next after the caufe oi fuch action
or fuit, and not after. And it was thereby further enacted
that if any perfon or perfons entitled to any fuch action or ac-
tions, fhould be at the time of any fuch caufe of action given
or accrued, within the age of 21 years, feme covert, non compos
mentis, imprifoned or beyond the feas, then fuch perfon or per-
fons fhould be at liberry to bring the fame action, fo as they
fhould take the fame within fuch times ?.s before limited, after
their coming to, or being of age, difcovert, of fane memory, at
R r 3 large,
6i4 PLEAS.
large, and returned from beyond the feas, as other perfons hav-
ing no fuch impediment, would have done. And this defen-
dant for further plea faith, that if the compl inant, either in her
own right, or as adminiftratrix of T. N. decenfed, or as
adminiftratrix of the perfonal eftate of the laid R. N. deceafed,
in the faid bill named, or otherwife, ev-^r had any caufe of ac-
tion or fuit againft this defendant, or againll the faid T. P. this
defendant's father, for or concerning any of the matters in
aforefaid bill of complaint mentioned, which this defendant
doth in no fort admit, fach caufe of action or fuit did accrue
or arife above fix years before the filing of the complainant's
bill of complaint, or above fix years before ferving or fuing
out procefs againft this defendant, to appear to and anfwer
the faid bill, nor hath the complainant at any time fince the
death of the faid T. N. P. been under any of difabilities men-
tioned or defcribed in the faid act. of parliament. And this defen-
dant for further plea faith, that neither he this defendant, nor
to his knowledge and belief the faid T. P. deceated, this de-
fendant's teftator, at any time within fix years before exhi-
biting the faid bill, or ferving or fuing out procefs againft this
defendant to appear to or anfwer to the fame promife, or agree
to come to any account for, or to pay, or any ways fa-
tisfy the faid complainant any fum or fums of money, for or
by any reafon or matter, tranfaclions or things in the com-
plainant's faid bill of complaint charged or aliedged ; all which
matters and things this defendant doth aver to be true, and
is ready and willing to prove as this honourable court fhaii
award, and he doth plead the fame in bar to the whole of the
faid bill, except fuch parts as aforefaid ; and doth humbly
demand the judgment of this honourable court, whether he,
this defendant, ought to be compelled to make any further
or other anfwer to fuch parts of the faid bill as he hath plead-
ed unto ; and this d fendant not waiving or relinquifhing, &c.
he this defendant anfwering, faith he believes the faid T. N. P.
attained his age of 21 years, in or about the month of Sept.
i"6c, and this defendant doth not know or believe that the
faid T. N. P. for any time whatfoever forebore, and was un-
willing out of refpecl and affeclion to the faid T. P. his fa-
ther, to take or ufe any compulfory meafures for obtaining
any fettlement of the account in the faid bill mentioned.]
iPlea
PLEAS. 6*5
[p'ea of Title in Defendant viz. by Matter cf Record and Non
Claim
The Plea of P. C. Gentleman, Defendant to
the Bill of S. D. Complainant.
This def nd-nt bv proteftatidn, nor ronfeffing any f x]\t
matters and things in the faid bill contained, r o be tru- j s
therein alledged, f i ys he is advifed th it the faid compl tin int, by
his faid bill claims a moiety of them inor, lands and hereditaments
hereinafter rhentloned, as gr n lion and heir of J. D. hereto-
f ore of B. in the county ^r b. yeoman, pledging himfelf to be
the fon and heir of S. D. therein named, his late father de-
ceafed, who is in the faid bill alledg-d to have been the fon
and heir of the faid J D. of B., to whom the faid moiety of
the faid manor and premifes, is in the f id bill alledged to have
be- n devTed bv J. D. heretofore of C. in the county of D.
efquire, deceafed, to which bill this defendant do h plead in
bar, and for plea faith that J. D the grand father of the faid
complainant, beinj feifed and in the poffeffion of the faid mo-
iety of the faid manor and premifes, by indentures o f leafe and
releafe, (recite them , co veyed to H. V. j PROOFS.
[To prove Goods fold and delivered, and Money lent.
Interrogatories to be adminiftered to Witneffes
to be produced, fworn and examined in a cer-
tain Caufe now depending, and at IfTue in His
Majefty's High Court of Chancery at \A< eft-
minfter, wherein H. H., J. A., and J. S. are
Complainants, and J. S., and R. P. are De-
fendants.
[On the Part and Behalf of the faid Complainants.]
i ft Interrogatory. Do you know the parties complainants
and defendants in the title of thefe interrogatories named, or
any, and which of them, and how long have you known them,
or any, and which of them refpeclively ? Declare the truth of
the feveral matters by this interrogatory inquired after, ac-
cording to the befl of your knowledge, remembrance and
belief.]
2d Interrogatory. Do you know of any goods having
been at any time, previous to the month of Sep. 1792, fold or
delivered by the faid complainant H. H. or by the faid com-
plainant J. A. to the faid defendant R. P.? if yea, fet forth what
goods were fo fold and delivered by the faid complainants H. H.
and J. A., or either and which of them, to the faid R. P. and
what was the value thereof, and at what time or times in
particular the fame were delivered to the faid R. P., and how
and by what means in particular you are acquainted with the
feveral matters aforefaid. Declare, &c.
3d Interrogatory. Do you know of any money having
been at any time previous to the month of Sep. 1792, lent or
advanced by the faid complainant H. H. or by the faid com-
plainant J. S. to the faid defendant R. P. ? If yea, fet forth
what fums of money refpedYively were fo lent and advanced
by the faid complainants H. H. and J. S., or either, and which
of them, to the faid R. P. and at what time or times in par-
ticular, the fame, and each of them were fo lent and ad-
vanced, and how and by what means in particular are you
acquainted with the feveral matters aforefaid. Declare, &c.
4th Interrogatory. Have you at any time, and when, heard
the faid defendant R. P. fay any thing refpe£ting any debt
due from him to the faid complainants H. H., J. A. and J. S.
or any of them, or refpe&ing the amount of the faid debts due
from him, or the nature thereof, or of any of them I If yea,
fet
PROOFS. 621
fet forth what you have heard the faid defendant R. P., fay or
declare refpe&ing the fame. Declare, &c.
[Note. The title of the interrogatories mufl be prefixed at the
top of the fheet as above ; The firft interrogatory contains ail
inquiry of the witnefs, if he knows the parties in the caufe ;
and it is ufual to add a concluding interrogatory, if the wit-
nefs knows any thing which may tend to the benefit of the
party, for whom he is examined.]
[To prove a Will.
Look at this paper writing now produced, and (hewn to
you at this time of your examination, marked with the letter
(X.) did or did not the f.ud W. R. the elder fign, feal,
publifh and declare the fame as and for his laft will and telta-
ment in your prefence, and whether or not alfo in the pre-
fence of the other perfons, whofe names are fubferibed as
witneffes thereto, or either, and which of them ? And did, or
did not you, and did or did not fuch other perfon or pefons, or
either, and which of them, fign and fubferibe his or their name
or names, as witnefs or witnefles thereto ? And whether or
not, in the prefence of the faid W. R. the elder ? Of whofe
hand writing is your name now appearing to be fubferibed as
a witnefs thereto ? And of whofe hand writing are the other
names now appearing to be fubferibed as witnefTes thereto ?
Was or was not the faid W. R. the elder, of found mind,
memory and uoderftanding ar the time of figning, fealing and
publishing and declaiing the faid writing as his will and tefta-
ment ? Declare, &c]
[To prove Copies of Record, Court Rolls of Manor, &c.
Look upon the parchment or paper writings, produced
and fhewn to you at this the time of your examination,
marked refpe&ively (Nos. 9, 10,) whether or not do or
doth the fame, or any or either, and which of them, contain
a true copy or copies of any, and what record or records, of
any and what court or courts, of any and what original or
•riginals of which the fame do, or doth purport to be a copy
or copies? Have you or not carefully examined or compared
the faid produced papers or writings, or either, and which of
them with fuch, if any, record or records, or other original
Qt originals, when, where, and with whom ? Declare, Sec.
in
622 PROOFS.
[To prove Copies of Regifers of Burial, Baptifms, tfc.
Look upon the feveral paper writings produced, &c. Are or
is the fame, or any or either and which of them, true copies, or
a true copy of any and what entries or entry in any, and what
regifter or regifters of any, and what parifh or primes ? And
did you or not ever, and when, carefully examine and compare
the faid produced writings, or any or either, and which of them,
with fuch refpecYive entries, and whtre and with whom are,
or is fuch regifter or regifters kept ? Declare, &c]
[To prove Inquiry after a Wiinefs ivho cannot be found.
"Whether or not have you by the order of any and what per-
fon or perfons, ever and when, and how often, made any and
what enquiry, and from whom, after or concerning any, and
what perfon or perfons, whofe name or names now appear to
be fubferibed or indorfed to, or on the faid now produced deeds
or writings, or any, or either, and which or them as a witnefs
or witnefles thereto ? Did you particularly enquire whether
fuch perfon or perfons were or was living or dead? And if
living, where he, (he, or they, then or laft did refide, or where
he, (he, or they, might be found and heard of ? What informa-
tion was on each of fuch applications given to you in relation
to fuch perfon or perfons, or either and which of them, and
by whom ? And did you believe fuch information, or any and
what particular thereof, to be wholly or in any and what re-
fpect true or falfe \ Declare, &c]
[Tj prove Notices.
Whether or no did you, at any time in or about the year
1780, and on or about what day or days in particular, deliver
to the (defendants), or cither and which of them, and where,
anv paper writing or writings purporting to be a notice from
the laid complainant, that (fate the fubflance of the notice), or any
fuch or to the iike effect -, and was or not the name of the com-
plainant fubferibed thereto, or to either and which of them,
of his own hand writing. Did you or not fee him fet or fub-
fcribe his name thereto, or to either and which of them, and
were both fuch notices or writings in the fame words or figures,
or in any and what refpeel: different from each other. Did
you or not keep a copy of each or either, and which of fuch
notices or writings ? Look upon the paper writings, &c. f
Is the fame or not a true copy of each or either, and which
of the notices or writings, which, if any, were or was fo deli-
vered I
PROOFS. 623
vered ? Did you or not ever examine and compare the faid
produced writings with the notices or writings fo delivered,
or with either and which of them ?]
[To prove Bonds , &c. ivhen the Witnejfes are living.
Look upon the feveral parchment or paper writings now-
produced and (hewn to you at the time of your examination,
marked refpecHvely with the letters (C. D. E.) whether or not
was or were the faid produced deeds or writings, or any or
either and which of them, ever and when figned, feai-
ed and delivered, or in any and what manner executed, by
any and what perfon or perfons, in your fight or prefence,
and whether or not in the prefence of any and what other
perfons as you know, or for any and what reafon believe ?
And whether or no is your name indorfed, fet, or fubfcribed
to or upon the faid now produced deeds or writings, as a wit-
nefs to the figning, fealing and delivering or execution thereof ?
If yea, of whofe hand writing is your name fo fet or fubfcribed
and indorfed, and of whofe refpedtive proper hand writing, are
or is any, and what name or names, or mark or marks, of any, and
what perfon or perfon fet or fubfcribed to or upon the faid pro-
duced deeds or writings as a party or parties thereto ? And
of whofe refpe£tive proper hand writing are or is any, and
what name or names, mark or marks, of any, and what perfon
or perfons indorfed or fet or fubfcribed to or upon the faid
produced deed or deeds, writing or writings, as a witnefs or
witneffes to the execution thereof, as you know, or for any
and what reafon believe ? Declare, &c]
[To prove Bonds, &c. where Witnejfes are dead.
Are you, or are you not acquainted with the character and
manner of hand writing of all or any, and which of the per-
fons whofe name or names is or are fet, fubfcribed or indorfed
as a party or parties, or as a witnefs or wifneffes to the feveral
deeds and writings now produced and (hewn to you, at this the
time of your examination, marked refpctlively with the letters
(A. B.), &c. or to any and which of them ? Of whofe hand
writing is or are the name or names of the perfon or perfons
fet, fubfcribed or indorfed as a party or parties, witnefs or
witncfl'cs to the faid deeds or writings, or to any and which
of them? And whether or no are or is iuch witneffes, or any^
o r either of them refpeclively living or dead ? If they, or any
or ei her of them, are living, where do or doth they, or any
or either and which of them refpectively live or refide, or are
6 or
624 PROOFS.
or is, they or any or either of them to be found or heard of ?
And if they or any or either of them are o- is dead, when and
where did they, or any or either and which of them refpec-
tively die, as you know, and for any and what reafons believe.
Declare, &o]
\To prove Entries in the Transfer Bool, of the Public Funds.
Look upon the paper writing produced, &c. and marked refpec-*
lively with the letters ( ), whether or not do or doth the faid
produced paper writings, or any or either and which of them
contain true copies, or a true copy of any transfer or transfers
in the transfer hook, for any and what particular fund or
funds, and where transferable r Did you or not carefully exa-
mine and compare fuch produced writings, of any or either
and which of them, with fuch, if any, transfer or transfers, and
when and where, and with whom and where, and in whofe
cuftody are, or is fuch transfer book or books from time to
time kept Q
{Inter rsgatorles for Examination of Creditors and Wltneffes on
behalf of Creditors.
Interrogatories to be exhibited before A. B. one
of the Mafters of this Honourable Court, for
the Examination of the feveral Perfons, Credi-
tors of R. B. late of, &c. and of the Witneffes
in their Behalf who (hall come in before the
Matter to prove the Debts due to thern from
the faid R. B. puffuant to the Decretal Or-
der made on hearing this Caufe, dated the
day of in the
year.
i ft Interrogatory. Was the faid R. B. deceafed, at the time
of his death really and juftly indebted to you, or to any and
what perfon or perfons, to whom you are executor or admi-
niftrator, and whom you do in and what other manner reprefentj
in any and what fum or fums of money, and for what in particu-
lar, or on what account and at what time or times, and in what
manmerwas fuch debts contracted ? Set forth in particular the
debts claimed by you. Are all and every the items and particu-
lars thereof, real, true and juft as you know, or do verily be-
lieve ? Have you or had you, or any and what perfon or per-
fons whom you in any and what manner reprefent, or had
ever any perfon in truft or for the ufe or benefit of you, or the
q perfon.
INTERROGATORIES. 625
perfon or perfons whom you fo reprefent, any and what fecu-
rity or fscurities for the payment of civ debt or fum of money
by you claimed, or of any and what part thereof; if yea, what
is, are or become of fuch fecurity or fecuritics refpectwely ?
fet forth the feveral matters.
2d Interrogatory. Hive, or hath you, or any and what
perfon or perfons on your account or for your ufe or benefit,
or by your order, or on the account, or for the ufe or benefit,
or by the order of your teftator, or the other perfon or p -rfons
whom you reprefent at any time or times, and when' had, ta-
ken, or received the fum or fums of money, debt or debrs by
you claimed as aforefaid or any and what part or parts thereof,
or any and what fum or fums of money, matters or things,
and of what nature, and to what value and amount, and in
what manner in or towards the difcharge, or on account thereof,
or of any and what parts or particulars thereof ? how much
money is and remains now really due from the eftate of the
faid R. B., and in what manner, particularly fet forth.
3d Interrogatory. Was or were you, or your teftator or
inteftate, or the perfon or perfons whom you fo reprefent, in-
debted to the faid R. B. deceafed, at the time of his death, in
any and what fum or fums of money, and on what account,
and for what particulars ? Set forth how and when the fame
became due, and on what occafions have you given credit, or
made any and what allowance for the fame, or any and what
part thereof? Had you or your teftator or inteltate, or the
other perfon or perfons whom you reprefent, at the death of
the faid R. B. or at any and what other time or times in your,
his, or her hands, cuftody or power, any and what fum or
fums of money, goods, chattels or effects, of or belonging to
the faid R. B. or his executors ? If yea, fet forth all the par-
ticulars or items thereof, and the true, full, and real values
of each part thereof, and what is become of each part thereof.
4th Interrogatory. D.d you at any time or times, and when,
for, or on your own account, or for or on the account of any and
what other perfon or perfons, and whom by name, fell and deliver
to the faid R. B. or for his ufe and when, any goods, wares and
merchandize, or do and perform for him any work and bufinefs,
and when and of what nature ? Look &c. ; do or doth the fame
or any and which of them, or any and what part thereof, or
of any and which of them contain a juft and true account of
all and any, and which particular or particulars of the goods,
&c. fo fold and delivered, or of the work and bufinefs fo done
and performed ? Are all the feveral prices, which are in fuch
Vol. I. b f refpec-
626 INTERROGATORIES.
refpective produced paper writings, charged for the fame the
loweft price at which fuch goods were ufually fold, aad for
which fuch bufinefs was ufually done and performed at the
time and place of rhe fale and performance thereof refpec-
tively ? And have or hath, or not, any and what fum or fums
of money be*en paid, and when and by whom, and to whom,
for or on account, or as part of the money which became
due, for all or any and what particulars of fuch goods, &c.
work or bufinefs.]
{The Title of Interrogatories for the Examination of a Party pro
interejfe fuo.
Between T W * A * J * A * C A ' P hintiffs >
Between | R g> w Q j R j T defendants.
Interrogatories exhibited before W. W P.
Efquire, one of the Mafters of the High
Court of Chancery, for the Examination of
W. O. a Defendant in this Caufe, pro in-
terejfe fuo t in certain Eftates in the Pleadings
in this Caufe mentioned, purfuant to an Or-
der made by the faid Court, bearing Date
the 27th Day of April 1795-]
[The Title of Interrogatories for crofs Examination of a Party
examined, pro interejfe fuo.
Between fW. A., &c. plaintiff,
\H. S., &c. &c. defendant.
Interrogatories exhibited before W. W. P.
one of the Mafters of the High Court of
Chancery, for the Crofs-examination of the
above named Defendant W. O. purfuant to
an Order made in this Caufe, bearing Date
the 27th Day of April 1795, whereby it was
ordered that the faid Defendant W. O.
be at liberty to go before Mr. P. one of the
Mafters of the faid Court, and be examined
pro interejfe fuo.~\
{Inter-
INTERROGATORIES. 627
[Interrogatories for the Examination of a Plain' 'iff Mortgagee, who
has filed a Bill for a Foreclofnre y and has been in Pffejfton of the
mortgaged Prcmifes,
In Chancery. Between { £ g S^ndant.
Interrogatories exhibited before R. T. Efquire,
one of the Matters of this Honourable Court,
to be administered to the Complainant in
this Caufe, purfuant to the Decree made
on the hearing of this Caufe.
1 ft Interrogatory. Are you or are \ou not in the pofTef-
fion and receipt of the rents and profits of the mortgaged pre-
mifes in the pleadings in this caufe mentioned, or any and what
part or parcel thereof? If yea. how and in what manner, and
at what time or times, and by what means, and on what oc-
cafion, did you get 'into poffeflion and receipt of fuch rents
and profits ?
2d. Interrogatory. Have you, or any perfon or perfons
on your behalf, or for your ufe or account, received or got
into your, his, or their hands, any fum or fums of money, or
any fecurity or fecurities for money, as for or in refpecl: of
the rents or profits, or otherwife on account or in refpe£t, of
the faid mortgaged premifes, which accrued due or become
payable fince the time when you entered into or got poffef-
fion of the mortgaged premifes, or for or in refpecl: of any ar-
rears of the rents and profits of the mortgaged premifes, which
were due and payable at any time before, or antecedent to your
entering into poffffion, or getting into the receipt of the faid
rents and profis of the mortgaged premifes ? If yea, fet forth
a full, true, and particular account of all and every fum or fums
of money, fecurity or fecurities for money, fo by you or by
any other perfon, or for your ufe or account, or in trufl for
you received, or got into your, his, or their hand, cuftody, or
power, and the refpettive times when the fame and every
of them were fo received, and from whom by name, and for
or on account of what particular, yearly, half, or quarterly por-
tion, and for what part of the faid eftate each and every fuch
fum or fums of money, fecur ty or fecurities for money fo re-
ceived or gotten, became due or was or were payable, and like-
wife a fud, true, and particular account of all and every fum
and fums of money which at this the time of your examina-
tion is and are due, and in arrear in refpeel, or on account
of the rents and profits of the faid mortgaged premifes, and
S f 2 a*
628 INTERROGATORIES.
at which particular time ^nd times fuch arrear and arrears of
rent became due and payable, and from whom by name, and
for what part of the faid mortgaged premifes.
3d Interrogatory. Is any fum or fums of money now due
and owing to you in refpeft or on account of the principal
mortgage money in the pleading in this caufe mentioned, or
for or on account, or in refpect of the intereft of the faid prin-
cipal mortgage money ? If yea, fet forth a full, true, and par-
ticular account of what you claim to be due or owing to you
in refpeci of the faid principal mortgage money, and in refpe£fc
of any intereft or arrears of intereft of the faid mortgaged mo-
ney refpe&iveiy.]
( 6*9 )
CHAPTER THE SEVENTY-NINTH.
Of the Proceedings upon a Commijfion of Lunacy (a),
THE method of procuring the commiflion of lunacy is first
by two or more perfons making an affidavit, fetting forth
the (late and condition of the lunatick, with fome few inftances
of his declarations and actions, to fhew their belief of his being
a lunatick, and incapable of governing himfelf or his eftate.
The Affidavit may be in this Manner.
E. F. of, &c. and G. H. of, &c. feverally make oath and fay,
that they, thefe deponents, for the fpace of one year laft paft,
have known and been well acquainted, and frequently difcourfed
■with C. D. of, &c. And thefe deponents further feverally
fay, that within the fpace of laft paft they have, by fre-
quently obferving the behaviour, words, and actions, of the
faid C. D., looked upon him to be a perfon deprived of his rea-
fon and underftanding in a very great degree ; and this depo-
nent E. F. faith, that, &c. (Set forth fome of the mojl notorious
acts, incoherences^ and irrational difcourfes.) And thefe deponents
further feverally fay, that they believe the faid CD. is no ways
capable of governing himfelf or his eftate.
E. F. Sworn the day of
G. H. at the public office before
Then you muft prepare a petition to the Lord Chancellor,
the form whereof may be as follows :
The Petition.
To the Right Honourable the Lord High Chan-
cellor of Great Britain.
The humble petition of A. B.
Sheweth,
That C. D. of, &c. (name the lunaticky with his addition) your
petitioner's fon (or ivhat other relation he is) now is, and for the
fpace of months laft paft and upwards, has been fo far
{a) For more ou the fubjeft of lunacy, vide page 370;
S f 3 deprived
630 OF THE PROCEEDINGS UPON A
deprived of his reafon and underftanding, that he is rendered
altogether unfit and unable to govern hirnfelf, or to manage his
affairs, as by the affidavit annexed appears.
Your petitioner therefore moft humbly prays
your Lordfhip will be pleafed that a com-
miffion in nature of a writ de luwtico
inquirendo may iffue out of this Honour-
able Court, to enquire of the lunacy of
the laid C. D. directed to fuch perfons as
your Lordfhip (hall think fit.
Ana your petitioner fhall ever pray, &c.
This petition, with the affidavit annexed, is lodged with his
Lordfhip's fecretary of lunaticks, who will get it anfwered for
you.
And if the commiffion is to be executed in the country, you
muft give in commiffioners' names to the fecretary, which lift
muff contain the names of five perfons, two or three of them
barrifters, and the others attornies, or fuch as the Lord Chan-
cellor will approve, of which the fecretary will inform you;
but if the lunatick lives in or near London, there are commif-
fioners for that purpofe appointed ; and when you have pro-
cured the petition anfwered, you carry it to ,
who officiates as clerk of the cuftodies, and he will
thereupon make out the commiffion, for which you pay him
3/. 7 s. 6d.
N. B. Where in the country, upon entering a caveat with
the fecretary, for which you pay 5^. with proper allegations,
the perfon again ft whom the commiffion is prayed will have
leave given him to prefent a lift of commiffioners as well as the
party applying. And jf>. whether he may not likewife pray a
fpecial jury, as in common cafes.
The commiffion being obtained, you appoint a place for the
execution thereof, which, according to Lord Chancellor's or-
der, ought to be near the place of the fuppoled lunatick's abode,
and then you prepare a fummons or precept, which is in nature
of a venire facias, .directed to the fheriff of the county in which
the commilfion is to be executed, as follows:
The Precept to the Sheriff.
By virtue of a commiffion in nature of a writ de lunatic*
inquirendo under the great feal of Great Britain, bearing date
at Wejlminjler, &c. (the date of the commijjion) to us, whofe
names are here under- written, and others in the fame commif-
fion named directed, to inquire whether C. D. of &c. be a lu-
natick or not ; Theie are therefore to will and require you to
1© caufe
COMMISSION 01^ LUNACY. 631
caufe to come and '.ppear before us twenty-four honed and
lawful men of the city and liberty of TVeflminJhr, on the 2$tb
day of May next, by ten of the clock in the forenoon of the
fame day, at the houfe J. K. fituate in a certain Jtreet or place
there, called Piccadilly, and commonly called or known by the
name or fign of the Gun Tavern ; then and there upon their
oaths to inquire of the lunacy of the faid C. D. and of all
fuch other matters and things as fhall be given them in charge
by virtue of the faid commifiion ; and thereof fail not at
your peril. Given umler our hands and feals the 30^ day of
April in the 17th year of the reign of our Sovereign Lord
George the Second, by the grace of God, of Great Britain^
France and Ireland King, Defender of the Faith, &c. and in
the year of our Lord 1744.
To the Sheriff of the County of Middlefex,
or his Deputy.
This you carry (having put three feals thereto) with the
commiffion to fuch three of the commiffioners as you fhall
think proper, who will fign and feal it, for which you pay
them one guinea each, and then lodge it at the fheriff's office ;
and the jury ought to be of the town or neighbourhood where the
lunatich lives.
If the lunatick is in cuftody of any perfon, who you are
apprehenfive will not voluntarily produce him (for he muft be
prefent and examined by the jury viva voce) then you, .make
out a warrant for that purpofe, as follows :
A Warrant to produce the Lunj.tick.
By virtue, &c fas before to) Thefe are to will and require
you to produce before the faid C. D. at the execution of the
faid commiffion on, bfc. (as in the funitnoni) there to be
examined touching the m&ttters aforefaiu, and you are to give
him notice of it accordingly ; as alfo to any other perfon or
perfons who are guardians of him, or* truftees of his eftate,
that they may appear in his defence, if they fhall think fit,
Given under our hands and feals, is'c.
To Mr. L. M. or fuch other perfon
or perfons as now have the faid
C. D. in their cuilody or power.
The commiffioners fign and feal this warrant without any
fee, and then you are to make copies thereof, and ferve it
upon fuch perfons as you believe, or can make appear, have
the cuftody of his perfon, or the direction and management
S f 4 *
632 OF THE PROCEEDINGS UPON A
of him or his eftate ; at the time of fervice (hewing the on-
ginal.
But, in order to make the perfon who has the cuftody of
the fappofed lunatick liable to a contempt, and to enforce the
producing of the perfon of the fuppofed lunatick to the com-
nvflionrrs and jury, it is bed to apply to the Lord Chancellor
for an order for that purpofe.
Alfo if you apprehend the witneffes, or any of them, will
not voluntarily attend, you make out a fubpoena as follows :
The Subpoena for Witneffes.
Ty virtue, tsfc. fas before to) Thefe are to will and require
you, that you perfbnally be and appear before us on, &c. far
in the fummonsj then and there upon your oath to teftify the
truth according to your knowledge touching the lunacy of
the faid C. D. and of all fuch matters and things as fhall be
demanded of you by virtue of the faid commiflion. Hereof
fail not at your peril. Given under our hands and feals,
tsfc.
To A. B. C. D. &c.
This the commiflioners alfo fign and feal gratis, and then
you make copies thereof, and ferve them upon the witneffes,
fhewing them the original.
Note, That the precept, warrant, and fubpeetia, need not be-
upon (lamped paper or parchment.
Upon the day of executing the commiffion, you mult take
care to have your witneffes ready, and the lunatick, attending
the commiflioners; and the jury being all fworn, then you
proceed to take the inquifition thus, viz.
In the firft place, you muft read over the commiflion, and
then the commiflioners will proeeed to examine the witneffes,
and afterwards the lunatick (if neceflary) ; but the lunatick
may infift on being examined, the commiflioners and jury only
being prefent.
Having gone through with the proofs, the chairman, or
firft commifiioner, fums up the evidence and facts to the jury,
who thereupon give their verdict as in other cafes, and after
the jury have given in their verdict, you will fill up the blanks
of the inquifition, (which, for expedition fake, is generally
prepared before hand with large blanks) according to the in-
queft, and then you read it over to them for their confent,
which is to be figned both by the commiflioners and the
jury.
Note;
COMMISSION OF LUNACY. €33
Note; Counfel may attend at the execution of the com-
miflion.
The Form of an Inquifition (b).
M'dd IT \ ^^ inquifition taken at the houfe J. K. fituate
' \ in a certain ftreet or place there called Piccadilly^
and commonly called or known by the name or fign of the
Gun Tavern in the county aforefaid, the 25th day of May in
the 17 th year of the reign our Sovereign Lord George the Se-
cond, by the grace of God, of Great Britain, France and
Ireland King, Defender of the Faith, &c. and in the vear of
our Lord 1744, before L. M. N. O. efqrs. and P. Q^ gen-
tleman, his (aid Majefty's commifliioners, by virtue of a com-
miffion in nature of a writ de lunatico inquirendo under the
great feal of Great Britain, bearing date at Wejlminfler the
12th day of April laft palt, to them the faid commiffioners
and others in the faid commiflion named directed, to inquire
(amongft other things) of the lunacy of C. D., of, &c. upon
the oaths of T. U. &c. (infert the names of all the jurors')
good, honeft and lawful men of the faid county of Middle-
fex, who being fworn and charged upon their oaths fay, that
the faid C. D. is at the time of taking this inquifition a luna-
tick, (or of an unfound mind) and doth not enjoy lucid inter-
vals fas the jury find him) fo that he is not capable of
the government of himfelf, his manors, mefuiage?, lands, te-
nements, goods and chattels, and that he hath been in the
fame ftate of lunacy for the fpace of lift pari,
and upwards; but how or by what means the faid C. D.
fo became lunatick the jurors aforefaid know not, unlefs by
the vifitation of God: And the fame jurors upon their oaths
further fay, that they do find that the laid C. D. at the time
of taking this inquifition, is feifed of or intitled unto one
mefluage, &c. (the premifes he is found feifed of or intitled
unto) which defcended to him as, &c. And alfo that the faid
C. D. hath not alienated any of his lands or tenements during
his lunacy aforefaid, to the knowledge of the fame jurors.
And the fame jurors upon their oaths further fay, That the
faid C. D. is at the time of taking this inquifition, alfo pof-
fefTed of or intitled unto (Jet forth what perfonal eftate.) And
laftly, the fame jurors do find, that G. H, of, &c. is brother
and neareft heir to the faid C. D. and that the faid G. H. at
the time of taking this inquifition, is of the age of
{b) A commiflion of lunacy muil be found mad, or not mad,
mwft aotbe fpesially returned ; he S. C. Chan. 47.
or
«34 OF THE PROCEDINGS, &c
©r thereabouts. In teftimony whereof, as well the faid com-
miflioners, as the jurors aforefaid, have to this inquifition fet
their hands and feals the day and year flrft above written.
This inquifition is generally writ fheet-wife on undamped
paper, and is figned by the commiflioners and all the jurors,
&c. on which you pay to the commiflioners, if in town, two
guineas each, and the jury half a guinea a piece, to the fheriff
two guineas, and to the fummoning bailiff" one guinea; but in,
the country it is ufual to give more, and pay the fheriff" the
fame as you do the commiflioners.
Then you muft prepare an ingroflment of the inquifition
upon parchment, (lamped with a treble fixpenny (lamp, and
annex it to the commiflion, which you return, on the back
writing thefe words, " The execution of this commiflion appears
" by the inquifition hereunto annexed", which the commiflioners
fign, and then fixing labels and feals to the bottom of the in-
quifition, three for the commiflioners on the left hand fide, and
likewife one for every one of the jurors, you carry it with the
commiflion annexed, and the inquifition (which was figned by
the commiflioners and jury at the time of taking) to the com-
miffioners who will fign the return of the commiflion, and
fign and feal the inquifition, for which you pay them one guinea
each ; but there is no occafon for the jury to fign this ingroff-
ment.
When you have thus compleated your inquifition, you muft
carry it to the petty bag office to be filed, where they make you
an office copy of the commiflion and inquifition upon double
fixpenny ftamped paper, which you make ufe of on all occa-
sions, either in court or otherwife ; for which you pay the
following fees, viz. filing 2s. 6d. copying &d. per fheet, and
figning the copy 2s.
THE RETURNS.
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6 2 S TABLE OF THE DAYS OF HEARING
A Table of the Days of hearing Caufes > Motions, &c. before the
Lord Chancellory and the Mafler of the Rolls,
Term. Time. Before the Lord Chancellor.
In Term time, every Monday, Tuefday, and Friday are
days for hearing caufes at Weftminfter by the Lord Chan-
cellor.
Every Tuefday, Thurfday, and Saturday in Term time, are
feal days.
The firft and laftdays of the Term are days for fealing writs
and motions only.
(Wednefday is a day for pleas, demurrers, exceptions, further
directions.)
Every Thurfday in Term is a day for fealing and motions only,
(except it happens to be the fecond day of the beginning, or
the hit day, fave one, of the end of the Term.)
All the days in Term, when the court fits, are days for
common motions, which are made upon the rifing of the
court.
Saturdays in Term are days for appeals and re-hearings ; and
frequently bankrupt-petitions are taken on chofe days.
Vacation. Before the Lord Chancellor.
[In the vacation, the Lord Chancellor appoints particular
days for the general feal days, on which motions only are
heard. His Lordlhip holds two general feals before Hilary
Term, and four after that Term ; two between Ealler Term and
Trinity Term ; four after Trinity Term \ tv o before Michaelmas
Term, and four after that Term. His Lordfhip holds thefe
general feals. in Lincoln's Inn Hall, where, likcwife, after each
feal, (excepung the feals between Eafter and Trinity Terms), he
hears, accoriing to their appointed courfe, fome of thefe feveral
matters viz. ; farther Directions, Exceptions, Appeals, Re-hear-
ings, Caufes, Pleas, Demurrers, Caufe-pethions, Lunatick-
pctitions, and Bankrupt-petitions.]
At the Rolls. — Term Time.
In Term time, every Monday, Tuefday, and Thurfday are
days for hearing caufes at the Rolls in the evening. His Ho-
nour fits at fix.
After
CAUSES, MOTIONS, &c. 63 9
After Term.
The Matter of the Rolls fits at the Rolls every Morning on
caufes from the firft day after Term to the firft feal. After the
firft feal he fits generally every Evening on caufes till the fourth
leal.
There are days for petitions appointed by his Honour.
The next morning after the Term, motions are made at the
Rolls.
The Mailer of the Rolls likewife, both during and after
Term, hears confent caufes in the morning at nine o'clock.
The new Table of Fees and Co/is in the Court of Chancery com-
mencing from the 2.6th of February 1807.
Fees of Clerks in Court.
SCHEDULE.
£> s> J.
For entering in the office and clerk in court's books,
the parties' names, and filing every bill, exclufive
of Term fee 074
For an attachment 012 2
For an attachment with proclamations or dif-
tringas o 13 n
For a commiffion of rebellion 1 710
For a fequefiration 12 2
For a tie exeat regno I 2 C
For a habeas corpus I 1 7
For a dedimus to take an anfwer o 16 11
For every fpecial dedimus by order of court 137
For drawing, ingroffing, and filing a replication o 12 8
For a commiffion to examine witnefies with the fche-
dule of oaths 160
For joining in commiffion on behalf of the plaintiff
for the examination of witnefs, if with more
clerks in court for defendants than one 068
And for the defendants each fet who fhall join
therein* 068
For every fpecial commiffion for dividing land's 1 610
For every common injunction I 14 10
For every fpecial injunction more than the corn-
won, when the fame does not exceed 20 folios 068
For
640 FEES OF CLERKS IN COURT.
For drawing and ingroffing fpecial injun£tion and
docquet, when the fame exceeds 20 folios, exclu-
five of parchment and duty, &c per folio 014
For every Term the caufe is in agitation, a Term
fee of 068
For entering the appearance of every defendant who
appears feparately, exclufive of the Term fee 068
For entering the appearance of more than three de-
fendants, then at the rate of 6s. ?J. for every
three defendants (exclufive of the Term fee) 068
For office-copies of bills, anfwers, exceptions, de-
positions, and other records, including duty and
paper, per folio O 1 2
For riling every joint or feparate plea, anfwer, or
demurrer (exclufive of the Term fee) 034
For giving and entering every rule, exclufive of
duty ' o 7 8
For every day a caufe is in the paper for hearing 034
For every day a caufe, appeal, rehearing, or fur-
ther dir^&ions {hall be in hearing, or in the
paper after part heard 068
For every day a plea, demurrer, or exceptions (hall
be in hearing, or in the paper after part heard 068
For every other attendance in court, when required
by the proper client or folicitor, but not other-
wife ° T 3 4
For entering an appearance for the parties, with
the regifter according to any order of court 068
For figning a confent to any petition, agreement,
election, or to enlarge publication, or to pafs
fame 068
For every certificate to be figned by the fix clerk 034
For examining all copies with the records, in order
for evidence, for each examination, if 4c meets
or under ° 6 S
But if more than 40 fheets, then for examining
each fheet ° ° 2
For the exemplification of every record, per fkin,
(exclufive of vellum, parchment, and dutv), &c. I 13 4
For drawing and ingroffing the docquet and mat-
ter's certificate o 8
For every writ of affiftance to put the party into
pofftffion, purfuant to decree, &c. 166
For copies of all deeds, writings, papers, letters,
and accounts left with the clerk in court, pur-
fuant
o
6
i3
10
13
4
6
8
FEES OF SOLICITORS. 641
£> '• d -
fuant to an order of court, or referred to in any
of the pleadings, for each fheet O
For every certiorari, procedendo^ or fuperfedeas o
For every attendance at Weitminfter on the ap-
pointment of a guardian O
For every attendance at Lincoln's Inn Hall, or
the Roils, for the like purpofe o
For taking off the hie purfuant to order any record,
and for attending with the fame in court at the
Rolls or the Mailers, &c. © 13 4
For attending with the fame in any other court
or place in London or "Weftminller, per day 2 2©
For every attendance with the fame in the coun-
try, at the rate of two guineas per day, exclu-
sive of expences 2 2
For amending the record of a bill where the fame
is not a new ingroffinent 013 4
For amending every office copy of a bill 068
For every other fee not mentioned, as heretofore,
ERSKINE, C.
W. GRANT, M. R.
Fees of Solicitors in Chancery.
SCHEDULE.
Drawing warrant to profecute and filing up fame
on a 5/. ftamp, each 026
Drawing pracipe ioxfubpeena and attending to leave
fame at fubpoena office, and afterward for
fame o 6" 8
Attending taking inftru£Hons for bills, anfwers,
interrogatories, and examinations, each o 13 4
Attending taking inftructions for fpecial affi-
davits 068
For drawing bills, anfwers, interrogatories, and
affidavits, per folio of 90 words, including fair
copy © I e
For ingroffing fame on parchment 006
For ingroffing affidavits on paper 004
For fair copies of all pleadings upon record of 90
words, per folio. ■ 004
For abbreviating the fame, per folio © © 4
Vol. I. T t For
64* FEES OF SOLICITORS.
£- '• d -
For fair copies of all briefs o 3 4
For attending each counfel with briefs, for hear-
ing of a caufe, and on fpecial petitions and mo-
tions 068
For attending counfel with inftru£lions, and the
regifter to draw up order, and entering on com-
mon petitions and motions of courfe 068
For attending Lord Chancellor or the Mafter of
the Rolls's fecretary, to prefent every fpecial pe-
tition, and afterwards for fame o 6 S
For attending the court every day on which a
caufe or petition (lands in the paper o 10 o
Attending when heard o 13 4
For attending tht court on every fpecial motion,
each day o 13 4
For fervice of every order or petition on a clerk in
court 020
For copy and fervice of every Matter's warrant or
fummons on a clerk in court 016
For perfonal fervice of ditto on a party o 10 o
For fervice of ditto on a folicitor, where no clerk
in court 026
For attending defendants on their being ferved
vjxihfubpaetiar, and taking inftructions to appear 068
For drawing every warrant to defend 026
For attending at the public office to get meffenger
fworn upon the return of all eommiffions 068
For attending every witnefs to be fworn and exa-
mined in town before examiner 6 8
Attending with defendant or deponent to get an-
fwer or fpecial affidavit fworn 068
For attendance on every Mailer's warrant or fum-
mons 068
For every attendance on the regifter, for direc-
tions to the accountant-general to fell or tranf-
fer ftock a 6 8
For drawing requeft to the accountant-general to
lay out cafh on each fund 026
Attending on accountant-general to lay out ditto 068
For every attendance at the Bank, to pay in mo-
ney, and afterwards on accountant-geaeral to
file cafhiers receipt o 13 4
For attendances on the regifter, to fettle minutes
of decrees and decretal orders o 13 4
For
o
3
6
o
6
8
o
6
S
FEES OF SOLICITORS. 643
£• '■ *>
For attending the regifter, on fettling decrees,
examining and palling fame, and orders on fur-
ther directions 013 4
For attending the regifter, on palling all other
fpecial orders 068
For attending to leave decrees and decretal or-
ders to be entered, examining and taking fame
away o 6" 8
For attending to file fpecial reports at the report
office and afterwards for the copy 068
For attending to join and ftrike commiflioners
names, for the examination of witnefTes, for the
folicitor who has not the charge of the com-
miflion 068
For attending to befpeak every fpecial writ or
fpecial commiffion that ifiues in a caufij (except
fubpeenas) 068
Drawing notice of taking anfwer or examination
and copy
Attending two commiflioners to fign the fame
Service thereof not exceeding two miles
Ditto at a greater diftance than two miles, is. per
mile, but not to exceed 110
For attending to take anfwers or examinations,
each commiffioner o 13 4
For attending the execution of commiffions for
the examination of witnefles, each commiflioner
and each folicitor per day 2 2 O
For each commiflioner's clerk, as ingroffing clerk 015 o
For attending to read over engrofTment of anfwers,
or examination, previous to being fworn, if
the fame does not exceed 20 folios 068
For every additional 50 folios 068
For attending the Mailer for every certificate to
be figned by him, and for filing fame 068
Drawing inftruttions for all advertifements to be
figned by the Matter, and afterwards for fame 068
Attending to get fame inferted in Gazette 068
For drawing out caveat againft figning and en-
rolling every decree and order 026
Attending entering caveat, with fecretary of de-
crees, &c. 068
For perufing abftradls every three brief (beets 068
for perufing the draft of every deed for each fkin 050
Tt 2 For
644 FEE 5 OF SOLICITORS.
£' '* *
For examining the ingroflments, with the draft
for every three fkins o 10 o
For making all attefted copies, examining and at-
tefting fame, per folio 006
Inftru&ions for every fpecial petition 068
Drawing fame, per folio, and fair copy 9 1 9
Ingrofling 004
Copies to ferve 004
For drawing fpecial notices of motion 020
Copy and fervice on every clerk in court, each e 2 •
For drawing charges and difcharges, Mate of fa£ts,
and bills of cofts, and fair copy for mafter, per
folio o o 8
Term fee (excluGve of clerk in court's fee) o 10 o
Letters and meflengers per term 050
N. B. The fame fees and allowances, as above fpecified,
to be made and allowed in all matters of lunacy and bank-
ruptcy, except the fee for attending the court upon bankrupt
petitions, whilft in the paper, which is to remain as heretofore,
namely, 6s. $d. per day, till the day the petition heard, and
on that day 13J. 4c/. to be allowed.
ERSKINE, C.
W. GRANT, M. R.
( 645 )
AN
INDEX
TO THE
PRINCIPAL MATT E R S.
ABATEMENT,
by death, 71. 73.
by marriage, 71.
quaere, whether a fuit abates by bankruptcy ; 68.
not by releafe of a joint tenant, 72.
Sequeftration, as mefne procefs, abates by death ; 145.
not, where it is for performance of a decree; 145.
See titles, Supplemental Bills, Bills of Revivor, and Infor*
motions.
ACCOUNTANT GENERAL, his office and duty, 22, 23.
ADMINISTRATOR,
letters of adminiftration relate to the time of the death of
the intcftate, 24.
See title Parties to a Suit,
AFFIDAVIT,
what, and for what, 398.
what to contain, 39S, 399.
the requifites in an affidavit of notice of motion, ^gg.
by feveral petfons, 399.
when to be filed, 400, 40 1.
referring affidavits for fcandal and impertinence, 40 1.
Form of affidavit, that the plaintiff has not the deeds in-
quired after, to annex to the bill before it is filed, 40 1.
to be annexed to a bill of interpleader, 402.
that the plaintiff had writings but has loft, them, 402.
for a ne exeat regno, ^02.
of having committed wafte, 402.
to be made by perfons feeing creditors fubfcribe their
names under a petition to fupetfede a commiffion of
bankruptcy, 403.
u of poverty, 403.
to a certificate of a perfon's being of age, 403.
Tt 3 of
6 4
487.
B.
BANKRUP' r CY. 68.
BILL IN EQUITY,
natuie of, 41.
prays procefs of fiihpccna, 41.
exct-pt in caff of peer and Attorney General, 41.
prayer for general relief. 41.
charge of combination, 41.
the mode in which bill mull be drawn, 42,
where Chancellor, plaintiff, it mull be addrefTed to the
king, 42.
bill mull be figned by counfel, 42.
otherwife taken off the file, 2.
the courfe where bill is fcandalous and impertinent, 43.
bill cannot be referred for impertinence, after anfwer, 43.
but for fcandal at any time, 43.
courfe, upon bill being reported impertinent, 43.
bills not to be antedated, 43.
bills of interpleader, 45.
bills of certiorari, 49.
bills to perpetuate the teftimony of witneffes, 52.
bills of difcovery, 57.
bill;- amended, 6o.
bills fupplemental, 66.
bills of revivor, 71.
bills ctofs 81.
bills of review, 84.
bills impeaching decrees on ground of fraud, 91.
bills to carry decrees into execution, 93.
bills pro confejfo, 152.
of filing bills, 97.
the form of bills, 44. 564..
bill againft the heir by devifee to prove the will, 564.
bill to compel the payment of a legacy, &c. 56-.
bill by one of next of kin of an inteftate againll the ad-
mim'ftrator for an account, and for his fhare of tlae
refidue, 571.
bill by bond and fimple contract creditors on behalf of
themfelves and other creditors for fatisfadlion of their
debts out of the teitator's real and perfonal eftate, 575.
bill by fimple contract creditors of inteftate to be paid
their debts, and to have affets marfhalled, 580.
bill to foreclofe a mortgage, $84.
bill to redeem a mortgage, 5S8.
bill for the fpecific performance of an agreement, 502,
prayer of bill for fpecific performance by vendee, 594.
12 bai
$5* INDEX.
BILL IN EQUITY,
bill by executor to afcertain the rights of feveral claimants
to the refidue of perfonal eftate of teftator, 593.
amicable bill by infants again ft. truflees for maintenance,
and for an account, 597.
the form of a bill of interpleader, 60 J.
bill of revivor, 603.
fupplemental bill, 604.
bill of revivor and fupplement, 605.
CAVEAT,
when to be entered, 327. 341.
CERTIORARI,
bill what and form thereof, 49.
what is to be done by plaintiff upon applying for cer-
tiorari, 49.
Defendant only in inferior court can remove proceedings
by certiorari, 5 1 .
where a certiorari will be granted, 51.
what is done, where certiorari is brought to a hearing, 51.
certiorari writ of, ^60.
CERTIFICATES,
what, 494.
certificate of fix clerk touching matter of praftice cannot
be excepted to, 494
certificate of no proceeding, when motion is made to dif-
mifs for want of profecution, 495.
of pleadings bein^ filed, in order to fet down a caufe, 496,
the maftet's certificate for a commiffion, 496,
forms of different certificates, 497.
CHANCERY,
its divifion into two courts, I.
fee titles Petty Bag, Jurifdiclion.
CHANCELLOR,
how conftituted, II,
his title and jurifdi&ipn, 12.
difference between lord chancellor and lord keeper, n.
commiflioners to execute the office of chancellor, 13.
CHAPG and difcharge, 576,
CLERKS IN CHANCERY,
fix clerks appointed by matter of the rolb, 15.
their office, 18, 19
fwan or waiting cltrks, 19.
their office, 1 q, 20.
cltiks in the petty bag office, 23, 24.
clerk of the chapel of the rolls, 2 {,
clerks of other defcriptions, 24.
COMMISSION to examine witneffis.
where the examination of witneffea is by c-ommiffion, 24?.,
joinder
INDEX. 65$
COMMISSION,
joinder in commiflion, what and how tffe&ed, 244.
who entitled to the carriage of the commiffion, 24.5,
to whom to be lent, 24O.
notice of executing commiffion, by and to whom to be
given, 246, 247.
form thereof, 747.
two of plaintiff's commiflioners may proceed, though de-
fendant's do not attend, 2 ,7.
the expediency of having a duplicate of commiffion, 247.
one commiffioner on each fide is fufficient, 24.7.
where commiffion is loft, by party's commiflioners going
away, who pays the coll?, 247, 24.8.
examination of witneflts without having the commifllon,
2. + 8.
where commiffion is loft, for want of adjournment, 248.
adjournment 268.
new commiffion when granted, and upon what terms, 248.
where commiflioners cannot agree, 250.
the return day of commiffion, 250.
where commiffion was loft, after being executed, 250.
commiffion to examine witnefles abroad, 250.
how obtained, 50,251.
the return day thereof, 251.
the order for this commiflion, what dire&s, 25X.
where to be executed, 252. 276
this commiffion not granted before hearing, in account,
commiflion for examination of witnefles, de bene ejje, when
obtained, 252.
the fees of commiffioners, folicitor, and clerk under a com-
miffion, 253.
the commiflioners' oath, 254.
clerks oath, 255.
the mode of executing a commiflion, 266, 267, 26?, 26",
the commiffioners' fummons for witnefles, 268.
exhibits, 271.
the return of the commiffion, 271, 272.
the return thereof, when executed abroad, 272.
the form of a commiffion to examine witnefles, 25?.
commiffion to examine witnefles abroad in a
foreign language, 255.
a commiflion to examine a defendant touching
a contempt, 257.
a commiffion to take a defendants examina-
tion on interrogatories, 257.
See titles Examination of IVitne/Tes. Deto/itions.
COMMISSION of Rebellion.
to whom directed, 129.
what is to be done by commiffioners when the perfon h
taken, 129, 130.
condition of bond* 130.
where
654 INDEX.
COMMISSION,
where the commiffioners let defendant efcape, 130.
irregularity in executing commiflion cognizable only in
Chancery, 13L
may be executed on a Sunday, t%\.
commiffioners compellable to make return, i^ 1 .
the form of commiffion of rebellion, 132.
the docquet thereto, 132.
the period betwe n the tejfe and return, 133.
where commiflion iflued without previous procefs, 133.
commiffion, the form of, to take an anfwer, 172.
to take a quaker's anfwer, 173.
to take the anfwer of a corporation, and the
anfwer of other defendants. 174.
to take anfwer, plea or demurrer, 175.
to affign a guardian only, 369.
to affign a guardian, and to take the anfwer by
fuch guardian, 370.
to affign a guardian, and to take the infant's an-
fwer, and the anfwers of other defendants,
37'- . ,
to take the infants anfwer by his guardian al-
ready affigned him, and the anfwer of another
defendant, 372.
to affign a guardian for an infant, the guardian
formerly affigned being dead, 373.
to take a lunatic's anfwer by his committee, 381.
CONTEMPT,
different forts of contempts, 157.
paiticular intlanc*s of contempt, 157, 158.
where any fuitor is arrtUed, in going or coming to attend
his caufe, 1 58.
proving a contempt, 159.
the mode of proceeding on a conterr-pt, 160.
the court will haften filing interrogatories, 16 r.
the profecutor may take out commiffion to prove the con-
tempt, 161.
commiffion granted, where party in contempt is unable to
travel, 161.
the mailer to whom the contempt is referred may affefs
the colts, 161.
within what time plaintiff entitled to his difcharge, if no
fleps taken, 60-
the party appearing, not to depart before examined, 162.
if found in contempt, mull pay colts before difcharged,
162.
where a party is taken upon irregular procefs, 162.
the terms upon which attachments on procefs fhall be dif-
charged, 162.
defendant in cuftody for non-payment of colls, entitled to
his difcharge after anfwer fc>ut in, 162.
u apnfoner
INDEX. 6 55
CONTEMPT,
a prifoner in Fleet for a contempt, not committed as a
clofe prifoner, i6z.
contempts mud be cleared before parties heard, iGz.
where plaintiff may proceed ngainit defendant in contempt
for not anfwering, he has time to anfwer, 163.
See Attachment, Proclamation, Commijfwn of Rebellion, Ser-
jeant at Arms, Sequejlration, Dijlringas, Bills pro confeJfo t
Co/is, Habeas Corpus,
CORPORATION,
anfvver under their common feal, 170.
where their officer and individual members mull anfvver,
170.
Vide Dijlringas, Sequejlration, Service of Subpoena, Parties to Suit.
COSTS,
difcretionary, though he who fails, prima facie liable to
cofts, 354.
inilances, where the fuccefsfui party not entitled to his
cofts, 354, ?55<
truftees are entitled to their cofts, 355.
exceptions thereto, S55 357-
in a bill to fecure a contingent intereft under a will, coils
paid out of the eftate, 3^-5.
fo, where the queftion is, whether the bulk of the eftate is
to anfwer the legacy, &c. 355.
but not where the queftion is on property fevered from
the bulk, 351.
cofts of proving a debt before mailer not allowed, -156.
mortgagee in general entitled to his colls, 356.
exceptions thereto, 356.
heir at law, in a bill to perpetuate teftimony of witneffes,
entitled to cofts, 356.
unlefs he examines witneffes againft the will, 356.
where heir is favored with refpeel to cofts, 357.
relators often entitled to cofts, beyond taxed cofte, 357.
where infant pays cofts, 3^7.
prochein amy not entitled to cofts beyond taxed cofts,
357-..
on partition, no cofts on either fide, 357.
on affignment of dower, no cofts, 357.
po cofts to lunatic's relations for attendance before maf.
ter, 357.
cofts at law to the party for whom material iffue found}
357-
cofts for not going to trial to be moVed for in chancery,
P 357-
folicitor ordered to pay cofts, on grofs negle6t, 358.
cofts where caufe is fet down on bill and anfwer, 338.
fecurity for colls, where plaintiff is beyond fea, 358.
but it mud be applied for, before anfwer put in, 358.
that the plaintiff is gone abroad, not fufficient, 359.
the
656 INDEX.
COSTS,
the amount of the fecurity not increased unlefaon terms,
359- .mi • r
the mle that appeal will not lie for cofts when difpenfed
with, 359.
a joint order for cofts rcny be proceeded in, though one of
the parties abfeonds, 359.
the courfe for taxing cafts, 359.
to enforce payment of them, ^59.
no exception to a report of taxing cofts. 359, 360.
the court fometimes orders cofts upon hearing, fometimes
referves them, 360.
table of cofts, 63,9.
CROSS BILLS,
for what purpofe brought, 81.
when to be brought, 81, 82.
both caufes commonly fet down together, 82.
where defendant in crofs caufe is in contempt for not anfwer-
ing, courfe is to enlarge publication in original caufe,
82.
defendant to original bill muft anfwer before defendant to
the crofs bill compellable to anfwer, 82.
but plaintiff in original bill may lofe his priority by amend-
ing his bill, 82.
the form of a crofs bill, 83.
CURSITORS, 23.
D.
DECREE, what, 321.
drawing up the decree, 321.
when decrees to be drawn up, figned, and enrolled, 322.
minutes of decree re&ified, before decree paffed, 321.
but decree cannot be altered but by rehearing, 322.
exceptions thereto, where decree was reftified upon motion,
322.
decree either final or interlocutory, 323, 324.
the reafons why the firft decree generally is not final, 323.
where the court direfts an inquiry, 324.
who bound by the decree, 324.
from what time the decree binds, 324.
a decree preferred to a judgment at law if prior in time,
3 2 4*
but it muft be a decree afcertaining the quantum of plain-
tiff's demand, 324.
DECREES, figning and enrolling of,
the ftep preparatory to Sgning and enrolling decree, 325.
the docquet by whom to be figned, 325, 326.
inrolling the decree, 326.
a decree may be inrolled notwithftandxng death of defen-
dant, 326.
11 a caveat
INDEX. C57
DECREES,
a caveat Maya the (ignJng and inrolling 2S days after pie-
fenting decree to Lord Chancellor, 327. 341.
the form of caveat, 327.
the form obferved in drawing a decree, 327.
a form of a decree made upon a bill and anfuer, the defen-
dant making default at the hearing, 329.
words before anfwer, 329.
before the order for hearing, 320.
preceding the order to confirm the report njjt, 3 -jo.,
preceding the order to confirm the report abfoiute,
•230.
preceding the order to make the decree abfoiute,
33°-. n ,
preceding a matter s report, 330.
DECREES, execution of,
it mult be iinr figned and inrolled, 331.
the mode of ferving a writ of execution of a decree for
payment of money, 33 1 .
fervice of writ of execution in general perfonal, 331.
but may be difpenfed with, 332.
as where the defendant was prefent in court when decree
made, 332.
or where he conceals himfelf, 332.
if party's clerk in court be dead, afulpana adfaclcnd. attbrnat.
mult be taken out, &c. before decree enforced, 332.
the mode of proceeding on a decree to produce deeds and
writings, "32.
the courfe to be purfued if a decree is not obeyed, 333.
what, if the decree is for land, 333.
what things may be taken under a fequeSration on a decree,
3 33, 3 4.
the words of courfe of a writ of execution of an order, 334.
of a decree, 3 .4.
fhort writ of execution of a decree, 335.
DECREES, exemplifying of,
exemplification what, 336.
DECREES, reviving- of, 336.
DEEDS AND WRITINGS,
where the court will order deeds to be left in hands of
clerk in court, q 30.
qua: if court will order plaintiff to give copy
of deed mentioned in plaintiff's bill to be in his polTeffiou,
530.
on a reference to a deed in depefuion, court will not order
plaintiff to produce it, 530.
the court will at the fuit of remainder-man take deeds out gf
hands of tenant for life to be left jn court, 530.
but not where tenant for life is father to remainder-
man, 53 i-
Vol. I. Uu tenant
6 5 3 INDEX.
DEEDS,
tenant in tail entitled to production of deeds by which his
title is barred, 531.
but defendant not obliged to difcover his title deeds, 531.
production of deeds to aid a trial at law. after a bid filed for
relict as well as difcovery, granted only on decretal order,
531-
where defendant compelled to produce deed at trial, 531.
DEMURRER,
what, 2to.
the grounds of demurrer to relief, 2 10.
grounds of demurrer to bill for difcovery only., 2IO, 21 1.
demurrer mull be figned by counfel ; is not on oath, 211.
fo much of bill as demurrer extends to taken for true, 211.
a demurrer mult expvefs caufes of demurrer, 211.
but another caufe ot demurrer may be afugned ore tenus, 212.
but defendant cannot demur ore tcnus having pleaded. 212.
defendant does not pay cofts of demurrer on record over-
ruled, where demurrer at bar allowed, 212.
a demurrer cannot be good in part and bad in part, 212.
a general demurrer, if any part oi bill ought to be anfwered,
overruled, :i;.
a plea or an anfwer to the fame part of the bill, overrules
the demurrer, 213.
a general demurrer to a bill for difcovery and relief, where
plaintiff is entitled to difcovery only, allowed, 2 1 3.
but not where the prayer is merely for general relief, 21?.
but defendant may demur to the relief and anfwer to the
difcovery, 213.
defendant cannot demur after order to anfwer only, or de-
mur alone, after order to plead, anfwer or demurrer,
214. 167. 177.
no demurrer to anfwer, 214.
a demurrer on account of the fmallnefs of demand, 214.
but a bill may be difmiifed on that account without de-
murrer, zi 4.
in a cafe of charity, or where bill is brought to eftablifh
a right, the value immaterial, 2 14.
g, demurrer within what time may be filed, 214.
cannot demur after anfwer, 214, 215.
when to be entered with the reghter after filing, 215.
filing and entering demurrer, 215.
order to fet down the demurrer and fervice thereof, 215.
within what time fuch order to be brought to the regis-
ter, 216.
cofts on ovet ruling or allowing demurrer, 2 1 6.
a demurrer, though fet down, may be withdrawn on colls,
3 16.
after allowance of a demurrer to whole bill, it is out of
COUIt, 2l6»
but
INDEX. 659
DEMURRER,
but liiil the eaufe has been fet on foot again, 217.
amendment after demurrer, 2 1 6.
DEMURRER, forms of, 609.
a general demurrer for want of equity, 607.
2 demurrer for want of equity, 607.
demurrer for want of parties, I oS.
demurrer becaufe the difcovery fought may fub-
jefl the defendant to penalties, which the plain-
tiff has not waived, ^08.
demurrer and anfwer, 609.
demurrer to a bill of interpleader for want of the
ufual affidavit, that the plaintiff does not col-
lude with any of the defendants, 610.
demurrer to a bill relating Jo dill in£t matters, 610.
conclusion of an anfwer claiming the benefit of
the defence, as if the bill had been demurred
to, 611.
DEPOSIT, See Exceptions, Plea, Appeal, Re-hearing,
DEPOSITIONS,
how to be kept, 294.
no copies to be read unlefs taken out of the proper office,
and finned for p. rty for whom to be read, 294, 295.
depofitions may be referred tor fcandal 297.
in' ances where depofitions have been iuppreiled, 297.
depofitions taken upon interrogatories, reported to be lead-
ing, fcandalous or impertinent, fuppreffed,- 296.
the depofition on that interrogatory only reported leading,
fupprefftd, 2Q7.
amending depofitions, in what cafes allowed, 29S.
where depolitions taken in one caufe may be read in ano-
ther, 298, 2^9.
an order mu!t be firit obtained for that pur;.ofe, 299.
if a witnefs dies before he has figned his examination, it can-
not be uftd, 299.
but exception thereto, 300.
the courfe to be pnrfucd when depofitions are taken in a
foreign language, 30 1.
words of courfe preceding depofitions taken in the exami-
ner's office, -500.
taken by commiffioner, ,30 T .
See titles, Commjjfwn for Examination of Witv.cjfesy Examination of
Witneffes.
DEVISEE,
a will may be delivered to a devifee to be produced at conv
million on proper fecurities, 276.
See Revivor.
DISCLAIMER, what, 2.35.
what defendant may do upon a difclaimer, 2 ^5.
where the court will give fuch defendant colts and when,
335, 23b.
U u 3 difen-
66o INDEX.
DISCLAIMER,
defendant cannot get rid of a difclaimer but on a ftrong cafe,
235,236.
no replication if defendant difclaims, 2 3 J .
but otherwife if difclaimer is only to part, and anfwer to
other part, 2 "5.
DISCOVERY, bill of,
what, ;7.
where it lies, 57.
defendant not obliged to difcover whether he is papift,
57-5^-
or todiicover matter which may fiibject him to felony, 58.
qua : whether the uatute of limitation can be pleaded to a
bill for a difcovery, 58-
where perfons are entitled to difcovery of title deeds againll
heir, t;8.
bill for difcovery not difmiffed, but ordered to be ftruck out
of paper, 58.
it cannot he dif miffed for want of profecution, ^8.
when affidavit muft be annexed to bill for difcovery of
deeds, 58.
where not, 58.
plaintiff mull pay colls of difcovery, 59.
cods of difcovery not to be paid till return of commiffion
if commiffion prayed, -9.
defendant not to have colls if he examines in chief, ^9.
in abatement by marriage of female plaintiff after anfwer,
no cofts, 59,
DISMISSION,
what and in what cafes, 3 I 3 •
difmiffion of bill for want of replication, 313.
what to be done if plaintiff wilhes to keep caufe in court,
313,
■ after bill amended, defendant cannot apply again till three
terms after filing anfwer to amendments. 314.
difmiffion of bill after replication put in, 314
mode to prevent the effect of fuch motion, 3 14.
ler by motion to withdraw replication and amend bill,
or by undertaking to fpeed caufe, 314, 315.
tat is to be done if plaintiff negle&s to proceed, 314,
315.
the only anfwer to motion to difmifs bill, &c is the ufual
undertaking, 315.
order to difmifs regular though certificate appeared on order
to be of fubfequent date, 315.
qua : whether one defendant may not difmifs for want of
profecution, though the other defendant has not anfwer-
ed, 316.
where there is demurrer or plea, defendant cannot move to
difmilo till demurrer or plea difpofed of, 3 16.
defen-
INDEX. 66\
DISMISSION.
defendant cannot move to dlfmifs a bill for difcoYcry only,
316.
a caufe may be di'fmi'{Ted' by reafon of a double proceeding
in law and equity, 3 t6,
plaintiff may move to difmifs his own bill, 3 1 8.
but in no cafe without cods, 318.
co-plaintiff entitled to make this motion without con feat of
the other, 3 19.
where a perfonis made co-plaintiffwithnut his confent,he may
move his name may be ft ruck out of ingroffment, 3 19.
if plaintiff pendente lite enter into the lands in queilion, the
bill mall be difmiffed, 3 rq.
after decree, bill cannot be difmiffed by confent, 3 19,
exceptions thereto, 320.
difmillions on other accounts, 320.
difmiffion for want of parties, in what cafes, 320.
difmiffion may be pleaded to a new bill, \i\.
if a bill be depending here, and fecond brought for the
fame matters, a reference to the matter to fee if they are
the fame, 317.
See titles EkP.lon, Decrees*
DISTRINGAS,
the firft procefs againfl a corporation, 141,
the form of dijhingas, 150
the proceeding thereon, 150.
the levies upon writ of difiringas, 1 50.
on whom dijiiingns may be fcrved, 1$ r.
E.
ELECTION.
if the pla'ntiff is proceeding at law and in equity for fcjie
fame thing, he will be put to his election, 3 .6.
the defendant may move for fuch order, but mud firft
anfwer the bill, 3 16.
plaintiff has eight days to fhew caufe againfl; the order, 3 iS.
if the bill be for n difcovery merely, no election, 317.
an order for election discharged, becaufe defendant had
pleaded, and plea not argued, 317.
there may be a general or a fpecial election, 317. /
the order for making the election, 3 18.
EVIDENCE, fee titles Examination of Witneffes t Depofiiions.
EXAMINATION of Witneffes,
the mode in tquity 259.
a witnefs may ufe (hurt notes to affift his memory, 267.
examination in the examiner's office, 260.
'he rule 10 produce witneffes, 200.
the oath admiriiftered by the examiner's clerk, 260.
before witnefs examined, to be produced at feat of adverfe
clerk in court 261.
IT u 3 depo-
66 2
INDEX
EXAMINATION of Witneffea,
depositions to be read to witnefs, before he Tigris them,
261.
fteps to be taken for the purpofe of croft-examination,
261.
party not bound to produce his witnefs again For purpofe of
crofs-examination, 261.
the mode in which examiner is to examine deponent, 261.
if witnefs will not attend voluntarily, recourfe muit be had
to compulfory prJacefs, 62.
precipe for the fubpana., 62.
notice on a witnefs appointing time and place of examina-
tion, 2 '4.
if witnefs refufes to a. tend to be examined, the (leps to
betaken, .164,
the courfe to he purfued if witnefs be confined in prifon
within ;o miles of London, :6".
or where the witness hy ficknefs is incapable of attending
the examiner's office, 26^.
if a party examines fame witneffea in town, and others by
commiffion, he is not obliged to file a whole fet of inter-
rogatories in examiner's office, 273
a witnefs cannot be re-examined without the order of the
court, >'73- 262.
but with fuch order, the fame or new witneffes may be
examined upon new interrogatories, 273.
even after publication, to correct a miitake, 27,3.
the matter will be ordered to fettle interrogators s, 271.
on a reference to a mafter, if neceffary, whneffes may be
examined before liim, or by commiffion, 27 <..
in a contempt, interrogatories not to be extended beyond
the matter in the affidavit, 274.
a commiffioner may be a witnefs before fworn, 274.
fo may clerk, before fworn, 27^.
a plaintiff mcy examine a defendant as a witnefs, by order,
275
fo may a defendant a co-defendant. 279.
the order mud be produced at the commiffion or at the
examiner's office, 275-
,if the plaintiff has replied, he muft amend the replication
by' (hiking out the defendant's name, 275.
a plaintiff cannot examine a co-plaintiff, 275
nor a defendant a plaintiff, but he may iprochien amy, 276.
the courfe, where witnefs demurs to examination, zj6.
where witneffes are foreigners, 276.
the examination of witneffes abroad, 276.
the formalities, 2-76.
the examination of witneffes to perpetuate teflimony, 277.
to prove a will in chancery, 277.
a commiffion to examine witneffes in order to perpetuate,
granted, though no anfwer put in, 277.
ordi-
INDEX. 662
EXAMINATION of Witnefles.
ordinarily the depofitions not to be publilhed in life of
witnefles, 277.
examination of witnefles de lene ejfe, C78
on the ground of age, going beyond fca, ficknefs, or there
being only one witnefs to the material fact, 278, 279.
the motion in general requires notice, 279.
defendant may crofs examine fuch witnefles, 279.
after anfwer but not before, defendant may examine de lene
ejfe, 279. _
fuch depofition not to be published without affidavit of
witnefs' death, and that he could not be examined in
chief, 2 to.
the courfe where the commiflion under which the witnefs
was examined de bene ejfe, was loft, 280.
a witnefs having been examined on going abroad, being
afterwards in Ireland, in 11 ft hi examined in chief, 280.
the examination de lene ejfe, the fame as examination in
chief, 280.
the examination of witnefles viva ,
if bill be difmiffed on bill and anfwer, it is with 40s. cofls
apart; cr plaintiff may be admitted to r::ply, 509.
where plaintiff obtains a decree niji againft defendant on de-
fault, -,:o.
what muft be dene by defendant before he is permitted to
(hew caufe,
fubpeena againft defendant to fhew caufe againft decree,
3'o.
return
INDEX. C6 1
HEARING,
return day thereof and fervice, 310.
where defendant fubnuts to decree nifi, 3 'O.
upon decree taken by default, evidev.-e not entered as
read, 3 I I.
the courfe when defendant intends to mew caufe, 3 r j.
where, upon hearing, the plaintiff does not appear, w\.
0rofs caufes Hi, ill be brought ?o a hearing together, 311.
where defendant in crofs caufe is in con'empt for riot an-
fwering, plaintiff fhould move to enlarge publication,
3' 2 - . ...
the courfe where a crofs caufe has acquired a priority in,
p;. per of caufes, 312.
if a plaintiff is not ready at the day, hut wiflics caufe to
ftand over, he mull ordinarily pay 5!., the colts of the
day , 7 12.
table of days for hearing caufes, &c. 638, 639.
fee Cojls, Deere?, Difmi/Jioti.
HEIR, fee Re ivor, Partes.
HOMiNE REPLEGIAN DO, writ of.
in what caufes it iiTues, 562.
I.
IMPERTINENCE, fee Scandal and Impertinence.
IDIOT, fee Lunatics.
INFANTS,
who are, 361.
an infant fues by prochein amy; but defends by guardian,
3 6l \
next friend of infant cannot be examined as a witnefsj but
his name mnft be (buck out of bill, 361 276.
where the court directs an inquiry, if fuit is for benefit of in-
fant, -561.
if two fuits by different perfons for infant, inquiry which
fuit is mofl for his benefit, 362.
where next friend liable to coils, 362.
the mode of appointment of guardian for infant to defend
fuit in town caufe, 362.
the courfe where infant does not appear, or anfwer bill,
3 6 3- . . . . . r
the mode of appointing a guardian only for infant defendant
by commiffion, 364.
if guardian refide in town and the infant in the country, a
comnvfiim toafiign a guardian only, fufficient 3' 1 4-
the guardian's oath to infant's anfwer, when difpenfed with,
the courfe where infant and guardian refide in the country,
and at a diflance from each other, 365.
how to proceed by commifliou to appoint a guardian, and to
take anfwer by fuch guardian, 365
caption
«« INDEX.
INFANTS, _
caption and certificate, 366.
infant's anfvver not evidence agaiiiil him, 366.
exceptions will not lie to infant's anfwer, 367.
bnt query, whether an anfwer to a bill, brought by in-
fant who does not reply, is not to be taken to be true.,
3 6 7 ■
an infant cannot be foreclofed without a day 367.
but only entitled to fhew error in decree, 367.
decrees again/! infants are but i:jf, 36^.
except on partition, -67.
infant aggrieved by decree, not obliged to flay till of age,
367, 368. _
infant on coming of age may put in new anfwer, 368.
fuch new anfwer is caufe why electee fliould not be made ab-
folute, 368.
time enlarged for infant's {hewing caufe, 36S.
fuit not abated by infant's coming of age, 368,
parol may demur here as at law, .68.
infant trufteesor mortgagees may convey, 3^9.
infant trullee may convey an eflale in Calcutta and Ireland,
3 6 9-
infant trullee never ordered upon petition to convey upon
trulls to be executed, 369.
colls of infant trullee allowed, 3^9.
the order for the reference, as well as to convey, mull be on
petition, .369.
guardian may be appointed, and maintenance allowed on
petition, 4 18.
See title Petition, Report.
INFORMATIONS, parties to, 2 j. f
the form of, 97, 96.
abates only by death of defendant, 95,
but if all relators die,. order mud be obtained foi liberty to
infeit name of new relator, 9J.
See Parties to a Suit.
INJUNCTION, writ of,
what, and in what cafes granted, 539, 540.
not granted till right eilablifned at law, 540.
all injunctions commonly granted upon motion, but in the va-
cation, in walk, upon petition, 541.
notice of motion, 541.
common injunction to Hay proceedings at law, in what cafes
granted, 54!, 542.
thefe injunctions, if granted before declaration, flay every
thing ; it after declaration, only execution, not trial,
540, 541. 546.
but injunctions are granted in fome cafes to flay trial till
anfwer, 546.
but tde common injunction muft be fir ft obtained, 5<\6.
how to obtain common injunction, 541.
common
INDEX. 669
INJUNCTION 1 , t
common injunction granted for want of anfwer to amende
bill, 5-42.
but not where injunction diffolvcd upon merits, &c 542.
but injunction may be moved for on the merits or grounds
difcjofed in fecond anfwer, '42.
a fpucial injun Aion is not gone of courfe by amending bill,
nor a common injunction by amending bill after anfwer
reported infufficieht, 542.
but if defendant put in further anfwer before order to amend
obtained, the anfwer mull ftand or fall upon original bill
and anfwer, ^47.
plaint itT generally cannot, by amending bill, after anfwer to
which he has not excepted, have injunction upon amend-
ments, $43.
common injunclion does not ftay proceedings in the fpiritua!
court, nor Admiralty', 1,43.
the cales where the court grants an injunction upon filing of
the bill on affidavit, $43, 544.
where, although no bill be actually on the file, 544, 54c.
do injunction 5 pending demurrer or plea, 545.
in bills for injunctions to Hay walle, or a fuit at law a fal-
pana before bill filed, 545.
fervice of injunction, 54.5, 54^.
where perfonal fervice difpenftd with, C46.
plaintiff at law, abroad, in an injunction bill, ordered that
fervice of fubpana upon his attorney good fervice, 546.
but there mu't be affidavit of the truth of the bill, 1546.
what proceedings are prevented by an injunction, 547, c-46,
540, 541, ^43. _
motion to difiolve injunction, 547.
vifi in the firit inftance, 547.
at the latt feal after Trinity term, plaintiff not allowed to
the next day of motions to fhew caufe on merits, 547.
cauft may be fhewn on the merits, or txception may be
fhewn for caufe, 547.
in the latter cafe, plaintiff ufnally ordered to procure mas-
ter's report in four days. 547.
mere allegation that anfwer is infufficient, not a ground for
continuing injunction, $47.
but a reference of anfwer for impertinence is caufe, C48.
fo if one of two defendants has not anfwered, 548.
or unreafonable delay, (,'48.
on crofs bills, when injunction diffolved, 54S.
plea or demurrer allowed, generally an end of imun£tfon
548.
but not always, 54^.
the terms which the court impofes in granting injunctions,
5+ t? » 549, 5'°-,
caies where affidavit may read again!! anfwer on motion to
diffuive injunction, 550.
6 7 o I N D E X,
INJUNCTION
perpetual injun&ion, where granted, 551.
mode of proceeding iu cafe of breach or injunction, 551.
how to proceed when injunction is irregularly obtained.
5 2 553- .
a:i order For an injunction on demmut, 5JZ.
doequet upon an injunction on a delimits, 553.
order for an injunction on an attachment, 5.4.
Pecquet foi an injunction on an attachment, 5^5.
the form of a common writ of injunction, 55.-;, 556".
an injunction to (tay walte, 5:-.
a fpecial injunction to May execution till heating, 557.
afpecial injunction to 'lay defendant from copying, &C.558.
a writ of iijuid'on for defendant to deliver tippoffefuon, 559.
INQUIRY, where granted, 124.
INTERROGATORIES,
to be figned by counfel, 2^9
and mult riot be leading, fcandalous, or impertinent, 2.9,
2 9^
the proper time to refer them, 256.
the mailer's certificate with refpect to them needs no confir-
mation, or.
what, if mailer certifies them leading, fcandalous, or imper-
tinent, 2 .6
the court not over curious ia thefe matters on exception to
the mailer's report, 29').
new interrogatories ordered on fuopreffing the old, 296.
when a mailer is ordered to fettle interrogatories, 274.
INTERROGATORIES, the form of, 6zo.
to prove goods' fold and delivered, and money lent, 620.
to prove a will, ^21 .
to prove copies of record, court rolls of manor, 6zi.
to prove copies of regifters of burial, baptifpis, &c. 622.
to prove enquiry after witnefs who cannot be found, 622.
to prove notice, 62a.
to prove bonds, &c. when witneffes are living, 623.
when the witneffes art dead, 623.
to prove entries in the transfer book of the public funds,
624
for the examination of creditors and witneffes on behalf ot
creditors, 624..
title of interrogatories for the examination of a party pro in-
ter tjfs fuo, 626.
title of interrogatories for crofs examination of a party ex-
amined pro intereJJ'e fuo, 626.
interrogatories for the examination of a plaintiff mortgagee
who has filed a bill of foreclofure or been in poffeflion,
627.
See Commijion to examine Witnejfes, Contempt* Depofilions, Examination
of Witneffes , Publication .
J M INTER^
INDEX. 671
INTERPLEADER, bills of,
what, .15.
plaintiff commonly offers to pay money into court, 46.
muft bring money into court befc ion, 46.
plaintiff bound to pcofecute Co far as to fuc out fubpana to
rejoin. 46.
if caufe has been heard upon bill of interpleader, and trial
directed, an end ol (uit as to plaintiff, 46.
the cafes in which bill of interpleader will or will not lie,
47-
colts of b;ll of interpleader, 4.8.
an interpleading bill upon footing of bill of injunction to ftay
wafte, 48.
an affidavit muft; be annexed to bill that plaintiff does not
collude, $cc. 45.
JOINING IN COMMISSION,
what, 244.
(Inking commiiTior-ers' names, 24.1.
where defendant, having joined, refufes to ilrike comtmf-
fioners' name, 2^4.
where a comutiffion may be taker! out ex parte, 244.
ISSUE AT LAW, in what cafes grauted, 508.
the form thereof, 508.
after trial, caufe fet down on equity referved, 508.
court may be moved for a fpecialjury, 508.
if plaintiff gives notice of trial without countermanding it in
time, tlie court gives cods, 509.
not ufual to enter up judgment, 5:9.
application to this court for a new trial, 509.
in what cafes the court will grant a new trial, 509.
coftsof the iffue, 509, 510.
bee Cojis.
JUDGMENT, fee Subpmna to bear Judgment.
JURISDICTION,
the divifion of Chancery into two courts, r.
general outline of jurifdi&ion of Chancery proceeding ac-
cording to equity, 3.
where the court entertains the fuit though fubject-matter of
fuit is abroad, 4, 5.
jurifdiclion of Chancery with refpeel to inferior courts, 0,
h 8, 9-
with refpeel: to charities, 10.
Chancery will not generally entertain a fuit under rol. 10.
LAnELS, fee Subpena.
LEGATEE, fee Parties to a Suit.
LETTER MISSIVE,
the Lord Chancellor's letter to a peer a defendant, 10 (.
Lifli peers entitled thereto, 101.
the mode of obtaining fame, 101.
the form thereof, 432.
fervice thereof, 102.
14 LUNAT.CS;
072
I N D E X.
LUNATICS,
who are, 379.
the cuftody of them and then- eftates, the peculiar jurifdic-
tion of great feal, ,379.
lue by their committees, 579.
and defend by their committees, who are appointed
for that purpofe by court, 379
one in condition of lunatic, though not found one, m.iy an-
fwer by guardian, 370.
the mode of obtaining fuch a guardian, 380.
the certificate of appointing fuch a guardian, 3P0.
committee appointed guardian to defendant without commif-
fion, 380.
committee of eftate of lunatic mull be made defendant with
lunatic, 27.
how mfvver of guardian is taken in town and country caufes,
385.
coromiffioners of lunatics may fummon witnefTes, 382.
lunatic to be pment at execution of commiflion of lunacy,
lunatic being abroad, commiflion ordered to be executed in
county where his mention was, 382.
return to a commiflion of lunacy, 382, 383.
where inquiiition may be quafhed, 382.
traverfe to the return of inquiiition a wght. 382.
the mode of proceeding to fuperfede commiflion, 3^3*
who may traverfe inquifition, 383.
the mode of obtaining the care and.cufl.ody of lunatic's per-
fon and eftate, 383, 3^4.
the form of the petition, 384..
the proper proceedings thereon, ',85, 386*
committees mult account annually, 386.
form of petition to pafs his accounts, 3 85, 387.
cofts refufed becaufe he had not accounted annually, 387.
repairs made without previous order, not allowed, 387.
where no one could be procured to be committee, a receiver
appointed, 387.
committees may afiign trufts and mortgages by order of Lord
Chancellor, by 4 Geo. 2. 387.
one found non compos by a competent jurifdi&ion abroad,
may be coniidered lunatic,
when truftees of ftock arc lunatics, &c. the court may or-
der transfer of Hoc!; into name of Accountant General, by
flat. 36 Geo. 3. 388.
' truftec of unfiound mind, though no commiflion iflued, hav-
ing refufed to transfer, within the flat. 38'.
but noc a lunatic abroad, under a judicial proceeding there,
the affidavit to obtain a commiflion, 6zg.
the petition for one to the Lord Chancellor, 629.
lift oi commiflioners' namer. 630.
the
INDEX. 6 7i
the precept to the fheriff, 630.
warrant to produce the lunatic, 631.
the Subpana for witnefles, 6? 2.
the form of an inquifition, 633.
See Parlies to a Suit
MAINTENANCE, vide Infant, Report.
MASTER OF THE ROLLS,
his tftle, 13.
appointed by letters patent, 13.
the duties and prerogatives of his office, 14.
has the appointment of the fix clerks, clerks of petty bag,
examiners, mailers extraordinary of Chancery, &c. 15.
order on motion of courfe before lord chancellor or order «e
parte, may be difcharged before Mailer of the Rolls, 1 ^.
petition to Lord Chancellor, which has been difmiffed by
his Honour, 15.
MASTERS OF CHANCERY.
their number, and by whom appointed, 15.
their duties, 16, 17.
their falary, 17.
a reference may be removed from one office to another on
ground of infirmity of mailer, 17.
MASTERS EXTRAORDINARY,
their office, 17.
the certificate necefTary to this appointment, 17.
the proceedings thereon, 18.
not to aft within twenty miles of London, 18.
MASTER OF SUBPOENA OFFICE, 23.
MEMBERS OF PARLIAMENT,
See PrivileJge, Letter Mi/live.
MESSENGERS,
when defendant taken upon procefs of contempt, and a apt
corpus returned, a mefitnger ordered, 136.
where refufed, 136.
See Attachment.
MONEY,
paying and receiving money in court, 1:2 4..
fuch money muit be paid into bank with the privity of the
accountant general^and placed to the credit of the caufe,
524.
the proceedings on paying money puifuant to fuch order,
524.
the proceedings in order to obtain fuch money by the per-
fons to whom it belongs, 525.
the courfe where the money belongs to infants, 526.
the proper certificate upon a motion for application of mo-
ney paid into the accountant general's hands, 526.
court will not keep money after parties entitled to it, 527.
order to pay money into court not to be difpenfed with, 527,
Accountant General bound to receive money, directed by ac"t
of parliament to be paid to him, 527.
Vol. I. X x MONEY,
674 INDEX.
MONEY, .
conrt orders money, admitted by defendant to be in his hands
of teftator's property, or afcertained by report to be
paid into court, 527.
the affidavit muftfpecify the amount, 527.
where court erden'd money to be paid in before anfwer, 527.
affidavit of accountant of balance from documents not part
of the anfwer, will not be fufficient for paying money into
court, -28.
but if fchedules and books are part of anfwer, they may fur-
nifh a fufficient admiffion, 528.
the terms of the order, C28.
ordersof 2d July 1793, and ift Auguft 1741* touching mo-
ney belonging to the fuitors of the court, 528, 529.
prerogative probate neceffary where the fum exceeds 30I.
in order for accountant-general to pay money out of
court, 529.
MORTGAGE. See Parties, Report.
MOTION,
what, 464.
motions of courfe, 464.
other motions rarely granted without notice. 464.
affidavit of notice muff be filed, and copy produced, 464.
court will not ordinarily extend order beyond notice, 464,
' 465-
fervice of notice of motion, on whom and when, 465.
notice of motion thrice given and not moved for, plaintiff
not entitled to move fourth time without paying cofts,
4 6 S-
day* for motions before the Chancellor and at the Rolls in.
term and in the vacation, $65, 4' 6.
Form of notice of motion by a purchafer of an eft'ate be-
fore a matter, to be at liberty to pay inhispurchafe mo-
ney, 466. t m
motion to invelt alum of money in the 3 per cent-
annuities, and to appoint a receiver of arrears
of rent, 467.
plaintiff's motion to difcharge order for three
weeks further time for defendant toanfwer, 468.
motion for a commitment for breach of the writ
of execution, 468.
plaintiff's motion to amend original bill and bill of
revivor by ftriking out co-plaintiffs and making
them defendants, 468.
defendant's motion for a feparate report, 469.
plaintiff's motion to difcharge order to enlarge pub-
lication 469.
defendant's notice to difcharge a«£ exeat, 4^9.
plaintiff's motion for commiffion de bene ejfe after
appearance, 469.
motion that a fum may be paid into the bank,
MOTION,
JO
l 4 - N D E X. 675
MOTION,
laid out, &c. and that the mafter may make a
feparate report, 470.
motion that depoiitions taken againft A. B. may
be read againft C. D. at hearing of caufe, 470.
motion to ftay proceedings in ejectment, 470.
motion for a receiver to pay balance into bank,
ferjeant at arms' motion that defendant's fohcftor
may pay his bill of fees and difourlements, 47 1.
motion to withdraw publication and amend bill,
471.
N.
NE EXEAT REGNO, writ of,
what, 533.
formerly applicable to ftate purpofes, now granted to fub«
'jects, 533. 535.
at what time and for what granted, 533.
not granted where demand is entirely at law and there may
be bail, 533.
the exceptions thereto, 533.
the writ lies to reftrain one from going to Scotland, 534.
but not an Irifh member from going to Ireland, 534.
or a perfon from going to a place fubject to laws of En-
gland where his effects are, 5 ^4.
never granted but on clear certain demand, 534.
the affidavit for the ne exeat muft be pofitive as to the equi-
table debt ; information and belief will not do, except in
matters of account, 534.
a ne exeat iffues in cafe alimony for fums actually due, 535'-
affidavit of wife for this writ againft her hufband, not aci-
ni iffible, 535.
where the court discharged the writ on giving fecurity to
abide the decree, 535.
the writ not granted where fuit muft be difmiffed for want
of parties, 535. >
the court feels a delicacy in granting this writ as againft fo-
reigners, 535.
the writ difcharged on paying into court the fum for which
endorfed, 535.
not difcharged on affidavit denying intention of going;
abroad, 536.
the affidavit for the writ muft be pofitive that defendant is
going abroad, orto fome declaration by him that heis, 536.
the writ directed to the fheriff, 536.
the back of the writ marked with the fum for which bond
- {hall be, 536.
bond by defendant to mafter of the Rolls, 536.
bond io abide the order on hearing, $$ji
X x 2 NE
6;6 INDEX.
NE EXEAT REGNO,
what is an abufe of this writ, $37.
the form of the writ of ne exeat.
NOTICE, See Motions.
O.
OEFICINA BREVIUM, See Petty Bag.
OFFICERS OF THE COURT OF CHANCERY, 11.
ORDERS,
order of com fe or fpecial, 511.
mode of drawing and amending orders, 511, 512.
the difference where order is drawn up on petition, and
where on motion, 512.
where court will discharge an order, 512.
in motion to make order nifi abfolute, party has all day
during fitting of court to fhew caufe, 512.
affidavit of ferviee of fuch order neceffary, 512.
the method of ferving an order, 513.
where the writ of execution of fuch order muft be ferved,
513.
in cafe of a folicitor, bare ferviee of order fufficient, 513.
party may be committed for not obeying an order, 513.
mode of enforcing orders for payment of colts, 513.
order not to be drawn up, unlefs affidavit filed, 514.
a miftake in the title of an order amended, 514.
affidavit on which order n'ifi founded, need not be mentioned
in the order, 514.
if party does not draw up order, ordinarily he cannot have
beneritofit, 914.
order that caufe mould (land over indefinitely, does not
mean till next term, 515.
to enter an order nunc pro tunc, a motion of courfe, 5 re-
form of an order to make an election, 511;.
toferve a fubpezna upon an attorney, 515.
to add a defendant to a bill, 516.
to affign a guardian, 516.
to fet down a demurrer, 5 1 6.
to overrule a demurrer, 516.
to diffolve an injunction unlefs caufe, 516.
to examine the regularity of an attachment, See,
517-
to examine into the irregularity of returning a
a proclamation, 517.
for the fix clerks to certify the due taking of the
defendant's plea, anfwer.or demurrer, 517.
for a habeas corpus, 518.
to refer a fecond anfwer, 518.
for a commiffion to examine de beneejfe and to re-
fer exceptions, 518.
to renew a commiffion, 518.
ORDERS,
n
INDEX. 677
ORDERS,
to ftay proceedings on exception to report, 519.
to confirm a report unlefs caufe, ^19.
for a fuperfeJeas upon an arreft, 519.
to difmifs a bill for want of a replication, 520.
for a Jul poena duces tecum, 520.
for a Jubpcena duces tecum, 5*0.
for a ferjeant at arms, 520.
to examine viva voce, 521.
for a Julpccna in nature of a Jc'irejacias, {[21.
to ftay proceedings on a decree upon filing a bill
of review, 521.
to ftand committed for not performing a decree,
for an injunction to put and quiet the plaintiff in
poffeilion, according to a decree, 522.
P.
PARTIES to a Suit,
parties to an information, 2?. 27, 28. 33.
perfons under legal difabilities to fue, 26.
a corporation may fue, 26.
in a fait againft it, individual members or officers may be
defendants, 27.
fuits againft infants, married women, lunatics, 27.
where relief may be obtained againft the crown in the ex-
chequer, 2S.
original mortgagee in bill to redeem againft aflignee, not a
neceffary patty, Z9.
unlefs the bill fuggeits that mortgage has been paid, 29.
fufficient to bring the perfon who has the firft vefted eftate
ot inheritance before the court, 29.
in a bill to redeem by devlfee, heir at law not a neceflary
party, 29. J
in a bill by fccond mortgagee to redeem firii mortgage
mortgagor muft be a party, 29.
but his perlonal reprefentatives need not, 29.
nor in a bill of foi eclofure, 30.
but muft in a bill for fale, 30.
in hill to foreclofe againft original mortgagor by aflignee
the origmal mortgagee mult be a party if he had a right
to redeem, zg f
but not whete the alignment was abfolute, 29.
where debt is joint and feveral, each of the debtors muft be
before the court, ^o.
exceptions thereto, 30.
original obligee in a fu?t or bond by aflignee againft obhVor
muft be before the court, 31.
perfon having the legal eftate muft be in general parties
X x 3 PAR.
6 7 8 INDEX.
PARTIES,
exceptions thereto, 31.
in a bill by fimple contract creditors for a fale where lands
are devifed to pay debts, heir muft be a party, buf other-
wife in a truft by deed, 31, 32.
in a creditor's bill againil affigneee of devifee, heir muft be
a party, 32.
a legatee of a term cannot fue for it, without executor, 32.
on bill againft heir to perform a perfonal contract, executor
muft be a party, 32.
executor durante minor e state, if he has collected effects, muft
be before the court, 33.
in a fuit for refidue of teftator's perfonal eftate, his perfonal
reprefentative muft be before court as plaintiff or de-
fendant, 33, 34.
executor fuftains pcrfon of teftator to defend eftate for him,
legatees and creditors, 34, 35.
but there may be cafes where a creditor or legatee may be
added, 35.
truftees and cejluiques trujl muft be parties, 3^.
in what cafes one may fue on behalf of himfelf and others in-
terefted in the fuit, 36.
in bill by vicar to eftablifh a penfion out of particular landSj
occupiers not neceffary parties, 37.
but owners muft.
cafes where general rule that all perfons interefted muft be
parties, diipenfcd with, 37-
rule that no one need be a party againft whom no decree
can be made, 37.
cafes where perfons not interefted may, 38.
what a fufheient reafon for not bringing a neceffary party
before the court, 38.
the time for making objection for want of parties, 39.
caufe may ftand over for want of parties after being heard,
39-
where court decreed againft fome defendants, others not ap-
pearing, 40.
PAUPERS,
both plaintiff and defendant may fue and defend in forma
pauperis, 389.
the privilege of fuing as paupers extends only to perfons
fuing in their own rights, 389.
the method of obtaining permiffion to fue a defendant in
forma pauperis, 389,390.
after fuch admittance no fee to betaken, 390.
a party may be afterwards difpaupered, in what cafe, 390;
plaintiff, a pauper, having a decree for cofts, what cofts be
allowed, jgi.
a pauper liable to precedent cofts, 391.
in an iffue directed, party muft be admitted pauper in the
court in which tire iffue is to be tried, 391.
PAU-
INDEX. c :9
PAUPERS,
plaintiff" pauper not to amend nor to difmifs his bill without
paying cofts, 391.
he mult pay colts of fcandal, 391.
PEERS, See Letter miffive^ Privi/edge. Scquejlration.
TO PERPETUATE teftimony of witneffes, Bills,
the proper form of fuch bill, 52, ;6q..
it lies only in the cafe of a perfon in poffcflion without dif-
turbance, 52, 53, 54.
at where the evidence of a material witnefs is likely to be
loft, $3, 53.
the necefTary affidavit in the latter cafe, 52.
after bill filed, fuch a witnefs may be examined de bene ejfe y
.S3-
bills to perpetuate, &c. were formerly difliked, «.
bill lies not to perpetual teliimony of witneffes to lunatic'*
will in his life time, 5 3 .
lies to perpetuate teliimony on ufurious contract, c-
to perpetuate the legitimacy of plaintiffs, 55.
how bill may be revived, 5;;.
it mull not pray relief, not even general relief, 56.
it maybe difmiffed for want of profecution, 56.
plaintiff mull not fet down caufe, 56.
See Commiffion for Examination of Witneffes, Examination of IVitne/fss,
Depojitions.
PETITIONS,
petition what, 417.
what may be moved for of courfe, in general, may be peti-
tioned for, 417.
on what occafions petitions may be prefented, 417.
a guardian and maintenance upon petition, but not a receiver
without bill, 418.
order upon petition difcharged on petition or motion, 41S.
where there mull be notice of petition and copy of it ferved,
4*8.
the method of prefenting a petition, 419. '
where petition is to the lord Chancellor, where to the in af-
ter of the rolls, 419.
no procefs fhall iftue upon petition, until order drawn up,
&c 419.
no order upon petition effectual to ground procefs of court
unlefs within a certain time drawn up and entered, 419.
but rule now otherwife, 419.
orders upon petitions drawn up, &c. as other orders, 419.
petition for further time mult always mention what time
has been obtained, 420.
PETITIONS, Forms of,
petition for fix week's time to plead anfwer or demur, and
for a commiffion, 47.0.
petition for a month's farther time to anfwer, 420.
X x 4 PETIr
63o INDEX.
PETITIONS,
petition for a month's further time to plead anfwer or de-
mur, 421.
petition for three week's further time, 42 1.
petition for a month's time to anfwer in a town caufe, 421.
petition for three week's further time to anfwer in a town
caufe, 4 ^2
petition for a fortnight's further time to anfwer in a town
caufe, 422.
petition for further time under fpecial circumftances, 422.
petition for further time to anfwer after the ufual orders
aforefaid, 423.
petition for fix weeks time to anfwer amendments and ex-
ceptions in a country caufe, 424.
petition to put in anfwer without oath, 425.
petition to fet down a caufe for further directions no a maf-
ter's report, 425.
petition to fet down a caufe on the equity referved on a
Cafe for the opinion of the judges of K. B. 426.
petition for his honor to ftiike names, plaintiff refufing f»
to do, 426.
petition for an order on defendant to accept bill nunc pro
tunc, 4 1'6.
petition for a habeas corpus cum caufis, 428.
petition to fet down a caufe for hearing on the equity re-
ferved, 4 2 8.
petition to enlarge time for payment of money, 429.
petition to appoint a day for an abiconding defendant to
appear, 429.
petition to withdraw a plea, 430.
petition for a commiffion after a ferjeant at arms, 430.
petition for a licence for king's counftl to plead againfl
crown, 431.
petition for letter mifiive, 432.
petition for procefs of contempt returnable immediate, 435.
petit fon to amend a bill by adding a defendant, 434.
petition to amend a bill on payment of 2cS. cofts, 434.
petition for a plaintiff to difmifs his own bill, 434.
petition to refer an examination to a mafter, &c. 455.
petition to be difcharged out of cultody of ferjeant at arms,
4 A5-
petition for return of a writ of enquiry, 436.
petition for plaintiff to give fecurity for cofts, 436.
petition for plaintiffs to be admitted in forma, pauperis*
•re-
petition of a defendant to be admitted in forma pauperis,
439.
petition for a feme covert to anfwer without her hufband,
44°-
petition for time to anfwer and return z.ckdimus } 441.
PETX-
INDEX. €8i
PETITIONS, _ ,
petition to examine a witnefs de hem ejfc before lflue joined,
44 r -
petition for a fpecial commiffion, and for commiffioners'
names, or in default, the commiffion to nTue ex parity
A/SfZ.
petition for a commiffion toaffign guardian, and to take the
defendant's anfwer by fuch guardian, 442.
petition to take an anfwer de novo, and to amend caption
and itay procefs, 412.
a common petition to receive exceptions, 444.
another petition to receive exceptions, 444.
a common petition to refer exceptions, 445.
another petition to refer exceptions, 4 -,5.
petition to renew a fequeftration, 446.
petition to withdraw replication and amend bill, &c. 446.
petition for fubpauas to rejoin. &c 4.47.
petition to join and ilrike cornmiffioner's names, &c. 447.
petition to alter a commiffioner's name, &c. 44S.
petition to examine a defendant, 449.
petition to add an interrogatory or two, &c. 449.
petition to enlarge publication, 450.
ditto, 450.
ditto, 450.
petition to enlarge publication, fo as not to hinder letting
down the caufe, and for an original and crofs caufe to
come on together, 451.
petition to enlarge publication, and for a commiffion to
examine, 452.
petition to ferve a fubpwna to hear judgment on a clerk in
court, defendant abfeonding, 453.
petition to prove an exhibit viva voce at the hearing, 453.
petition that an anfwer taken in one caufe may be read, and
made ufeofatthe hearing of another caule, 454.
petition that depolitions taken in one caufe may be read at
the hearing of another, 454.
petition for leave to examine witnefies after publication,
petition to fet down a caufe for rehearing on defendant's
having made default, 455.
petition to fet down a plea to be argued, 456.
petition to fet down exceptions to mailer's report, 456.
pet;: ion to fet down a caufe forbearing, 450.
petition to appoint a ihort day for a farther hearing on a
mailer's report, 457.
petition that iervice of an order nifi on the clerks in court,
may be good fervice, 457.
petition to enter a decretal order nunc pro tunc, 4-; 8.
petition to fign and inrol a decree nunc pro tunc, 4>8.
petition for an infant truilee to convey, purfuant to flat,
7. Ann, 459.
FETI-
6%z INDEX.
PETITIONS,
petition for a perfon come of age to enlarge time for /hew-
ing caufe againft a decree, 460.
petition to tax a folicitor's bill of cofts, 461.
another of the like kind upon bill delivered, 462.
petition to vacate recognizance of receiver and his fureties
petition for cuftody of lunatic's perfon and eftate, 4^5.
petition for commiffion of lunacy, 629.
PETTY BAG SIDE,
its jurifdidtion, I, 2, 3.
PLEA, what, 2 1 8.
plea proper only where the matter of defence can be reduced
to a fingle point, 218.
pleas to the jurifditlion of the court, 219.
pleas to the perfon of the plaintiff or defendant, 219.
plea of outlawry, 220.
plea of excommunication, 2zo.
pleas of conviction of lecufancy, that plaintiff is attainted, or
an alien, 220.
negative pleas, 221.
pleas that the fubje£r. of the fuit is not within the jurifdic-
tion of a court of equity, 221.
pleas that plaintiff has no intereft in the fubject, or no right
to inRitute a fuit concerning it, 222.
pleas that plaintiff has no right to call on defendant concern-
ing fubjeft matter of fuit, 222.
pleas of matters recorded, or as of record, 222.
another fuit depending in the fame, or another court of
equity, for the fame caufe, a good plea, 223.
the neceffary averments of fuch plea, 223.
the plaintiff ought to obtain a reference to a mailer 013
fuch plea, 223.
if not, bill difmiffed, 223.
the confequence of mailer's report on fuch reference, 224.
plea ofalineand non-claim, 224.
the neceffary averment of fuch plea, 224.
plea of verdict and judgment in bar, 224.
where fuch plea mult be fupported by anfwer, 224.
plea of dated account, the requifkes of, 224, 225.
plea of an award, 225.
where fuch plea mult be fupported by anfwer, 225.
the requiikes of a plea of releafe, 225.
plea of a will or conveyance, 225.
plea of ftatute of frauds, 225,226.
the proper averment of fuch plea, and where it muft be fup-
ported by an anfwer, 226.
plea of the ftatute of limitations, the proper averments, and
where it muft be fupported by an anfwer, 226.
plea of purchafer for a valuable consideration without notice,
227.
the proper averments of iu*h plea, 227, 228.
PLEA,
INDEX. 68 3
fpecial and particular denial of notice or fraud, mud be by
way of anfwer, 228.
the general reqnifites of a plea, 228.
plea may be bad in part and not in the whole, 228.
but the dilli ict defences offered by plea not to be fepm-
rated, 728.
jn general, averments in a plea ought to be pofitive, zz. , 1:2.
where perfonal fervice of the order nlfi may be difpenfed
with, 102. 112.
See Anfiver.
PROCEDENDO, writ of, 560.
PROCHl.lN AMY Set Infant, Colli.
PRO CONFESSO bills.
if defendant ftands out all procefs of contempt, bill to be
taken pro confffo, 152.
the caufe is fet down to be heard, and the record produced
and bill taken pro confcjfo, 152.
bill taken pro conjeJfo y riotwithftandmg infuf&cient anfwer,
an amended bill after anfwer may be taken pro eonfejfo ge-
nerally, 153.
before flat. 5 Geo. 2. if defendant had not appeared,
court would not decree bill to be taken pro conf,J/b s
*5S- .
the provifions of that ftatute, 155.
bill not to be taken pro cotfeffo againft a prifoner, unlefc
in the prifon of the court, IC4.
where only one defendant, bill taken pro confejo on motion^
154.
bill taken pro conftffo, after demurrer overruled, defendant
refuting to anfwer, 154.
bill may be taken pro conftfo, againft a cuaker, 154, 155.
decree upon a bill pro confeffb to be pronounced by court,
to prevent decree, neceffary, an anfwer be on file, and alfo
receipt for coits, 155-.
on motion to dilcharge order to take bill pro eonfejfo, on
offer to put in aniv/er, court required to fee the anfwer,
as-
under flat, q Geo. an affidavit neceffary, that defendant
had been in England within two years, jc6.
information that defendant abfeonds, &c. without ftating
from whom information was received, not fuhicieut, 1 56.
PRO INTERESSE SUO, Examination, •
See Seque/fraticn.
PROCLAMATION, writ of, 1 27..
See Attachment.
PUBLICATION,
what, 283.
PUBLL
INDEX. 6*5
PUBLICATION,
rules for pafiing publication, where witnefTes examined by
examiner, 2R1;.
where witnefTes are examined by commiffion, 285.
the form of the rules, 2 6.
when the rules expire, and how to he entered, 285.
publication may pafs by confent, 284.
either party may give the rules ; but defendant cannot give
them till plaintiff has been in default one term after iffue,
286. >
publication may pafs by order, 286.
publication may be enlarged before publication has paffed,
form of application, 237.
the terms ufually impofed on making application, 287, 288.
where notice is neceffary, 288.
where publication may be enlarged, though publication has
actually pafled, 288.
the neceffary affidavit on that occafion, 288.
the other party may crofs examine and produce other wit-
nefTes, 289.
where a fecond commiffion granted, notwithstanding depo-
fitions had been publifhed, 289.
plaintiff in a crofs bill may have publication in original
caufe enlarged, to a fortnight after anfwer to his bill
come in, 290.
where application is made to enlarge publication beyond day
on which the fame is fet down to be heard, 290.
in the vacation application may be made to the rolls, 290.
the courfe where the application is made by motion, 29Q.
where depofitions are taken by examiner, copy of rule to
pafs, or order to enlarge, publication to be ferved on him
or deputy, 290.
the courfe where depofitions are taken by commiffion, 290*
orders to enlarge publication when ferved, 291.
publication of depofitions taken in psrpetuam rei memoriam,
291.
publication of depofitions taken de bene ejje, 291.
the mode to effecTuate the publication of a depofition taken
de bene ejfe of a witnefs dying before he could be exa-
mined in chief, 292.
the proper ftage for making the application, 292.
may be done by petition to the rolls or by motion, 292.
if any irregularity, motion fhould be made to difcharge
order, 293.
publication refufed, if witnefs be living, 253.
See Examination of IVitncJfes, Depofitions.
PURCHASE before a matter.
See Sales before a Mefler.
RECEIVER,
$86 INDEX*
R.
RECEIVER,
what, 4Q9.
is an officer of the court, 507.
in particular cafes receiver may be moved for, before an-
fwer, 499.
appointment of receiver in difcretion of mafter , his ap-
pointment not overturned without fubftantial objection, 499,
receiver not in general appointed, where matter in dilpute
depends on legal title, 4^9.
•where receiver was appointed againft the legal title, 499.
receiver of perfonal eftate not appointed on account of
difpute in ecclefiaftical court. 499.
where a receiver is appointed in cafe of partnerfhip, 500.
receiver not appointed without bill, 500.
receiver not to make good lofs, not owing to his default ;
where he is, ;OC, 501.
receiver to pay intereft for money kept in his hands, 500,501.
notjaftified to keep balance in his hands, becaufe farms
are in a ruinous ftate, 500.
receiver not to apply money in repairs without previous
application, 501.
but where done without it, under circumftances, inquiry
directed, 50 7.
the cafes where receiver cannot aft without application to
mafter, 501.
fecurity given by manager of Weft India eftate, 501.
mode of getting poffeffion' from owner of eftate, 502.
receiver in poffeffion, ejectment not to be brought without
leave of court, 502.
receiver may be allowed to defend ejectment, 502.
■who may be, or not receivers, 502.
propofal for a receiver, 502. j.
perfon inclined to take leafe, muR lay propofals beftre
mafter, 502.
fureties for the receiver, 502.
difcharging recognizance, 503.
form of propofal for a receiver, 503.
of affidavit of fureties, 1503.
of a receiver paffing his accounts, 503.
gener order, 504.
report of paffing a receiver's accounts, 505.
REFERENCES,
what and to whom, 472.
caufe by confent may be referred to arbitrator ; his award
cannot be excepted to, "but it mult come on upon further
directions, 472.
on reference to mafter, he certifies, if requifite, that a com-
miffion is necetfary, 473.
depofitions where filed, 473.
application to court, if he refufes to grant fuch comrmliion,
473- . RE .
INDEX. 6S7
REFERENCES, . . _
after decree, matter may examine witneties, 473.
on reference of matters of account, the ufual warrants,
473.
in what way warrants are underwritten, 473.
cofts for fuch warrants and attendances, 473.
the proceedings before mafter upon matters of account, or
taxation of cofts, 474.
the ufual advertifements for creditors to come m and prove,
4.75.
claims of creditors, and examination of executors, 474, 475.
where tlie examination is infuHicient, 475, 476.
the mode of compelling the production of books and pa-
pers before mafter. j 76.
charge and difcharge, 47 6 - r r „ a
on a reference as to teftator's property, a itate of facts mult
be left with the mafter, 477.
an order on mafter to proceed de die in diem not imperative
on mafter, but cannot proceed without it, 477.
REGISTER, 21.
REGISTER OF AFFIDAVITS, 22.
REHEARING,
caveat to prevent decree being enrolled, 34!. _
fteps to be taken by party defirous of rehearing, 341 :
when petition of rehearing to be left, 341.
notice of rehearing, 341.
depofit, 342.
in general no fecond rehearing, 242.
difcretionary in the court to grant a rehearing, 342.
within what time a rehearing muft be applied for, 342.
on rehearing, whether new proofs may be read, 343.
matter of h€x to be fet right only by rehearing ; but a final!
miftake may be reclined by petition, 343.
rehearing does not ftop proceedings on decree, without
order, 343.
ornifiion to pray procefs againft defendant, where no caiue
for rehearing, 343.
no rehearing after decree figned, and inrolkd, 345.
agreement to fubmit to decree* does not prevent a re-
hearing, 344.
REJOINDER,
what 241.
rejoinders are now difufed, 241.
but where a rejoinder may be neceffary, 24!.
plaintiff after replication muft ferve on defendant>/« Mqfltr't
Report for Infujjiency of anfwer.
Vol. I. Y y RE.
690
index.
RETURN DAYS, 6, s .
REVIVOR, bills of.
■what, 71.
bill of revivor neceffary when fuit abates, 7T.
fuit abates by death of plaintiff or defendant, 71.
information abates by death of relator, quasre, 71,9^
if feme plaintiff marries, fuit abates, 71.
but if a feme defendant marries, fuit does not abate, 7 r,.
a releafe by one of two jointenants, does not abate the
fuite as to other, 72.
in bill againil hufband and wife, hufband dying, bill of re-
vivor to be brought againft wife, matter wholly concerns
her, 72.
hufband and wife plaintiffs in wife's right, on death of
hufband wife to proceed without reviving, 7 V
death of one jointenant does not abate fuit, /ecus of
tenants in common, 73.
death of either party makes an abatement only quoad him-
felf > 73-
plaintiffs, refufing to bring a bill of revivor, muff be defend-
ants > 73-
devifee cannot bring a bill of revivor, but original bill in na-
ture thereof, 73, 74.
bill in nature of bill of revivor may be brought againjl devi-
fee, 74.
a creditor may revive, 74.
where intereil wholly determines, no bill of revivor, but
original bill, in nature of fupplemental bill, 74.
in a fuit for an account, both parties are actors, and either
may revive, 74, 75.
unlefs the defendant has no farther interefl in profecutioa
of fuit, 75.
defendant may revive as well as plaintiff after decree^ 75.
the effect of revivor in this cafe, 75,
bill of revivor lieth not on a decree of long (landing, 75.
in a bill for difcovery, defendant having anfwered, before
abatement, the fuit need not be revived, 75.
fuit muft be revived before decree can pafs, having abated
before decree drawn up, 75.
bill of revivor lies not to revive a decree for cofts only, un-
lefs the cofts are taxed, 75, 76.
but does for duty and cofts, or where the fuit abates by
death of party to receive them, or where they are to
be paid out of an eftate, 76.
bill of revivor lies upon bill of revivor, 76.
defendant in original bill ought not to be named in bill of
revivor if alive, 76.
plaintiff may bring an original bill or bill of revivor, 76.
fuit cannot be revived in part, but in a fuit to revive a
whole decree, it may ftand as to part, though not as to
other part, 77.
by
INDEX. 6 9 t
REVIVOR,
' by confent money may be paid out of court without re-
viving^ 77.
the practice of reviving by fulpana in nature of fcire facias,
now difufed, 78
the proper form of a bill of revivor, 78, 60 }.
where caufe may proceed upon order to revive only, 78.
where caufe mull be fet down to be heard, 78.
the prope.- form of an original bill in nature of a bill of re-
vivor, 79.
time for anfwering in bill of'^vivor, 79.
fuit maybe revived, time for anfwering being out, 79,
like order if defendants anfwer, 79.
no anfwer necejfary to a bill of revivor merely, 80.
See Abatement, Supplemental Bills.
REVIEW, bills of,
in what cafes may be brought, 84, 85-
where affidavit is neceflary. £4.
the proper form of fuch bills, 84.
what matters may be read on bill of review, which were not
read at former hearing, 85.
what may be affigned for errors, 85.
who may bring bill of review, 8c, 86. Bg
bill of review on new matter difcovered after affirmance of
decree in parliament, 86.
another bill of review on decree of revevfal, 96.
bill of review not allowed after 20 yeais nor after de-
murrer allowed, fc6, 87.
not allowable on decree of commiffioners of charitable nfes, 86.
bill of review not to be brought except lull decree be obey-
ed, 87, 88.
unlefsacttohe done extinguifhes party's right at law, 87.
depofit on bill of review, 88.
the ufual demurrer to bill of review, 8 .
party merely anfwers, except as to matters discovered fince
the decree, 88.
the prevailing party takes the depofit, P9.
Supplemental bill in nature of '0 ill of review, 89.
colts of courfe, where no error in decree, 90.
REVIVING DECREES. See Bills of Revivor, Scire facias.
S.
SALES BEFORE MASTER,
the proper fteps to be taken where court order? fale before
matter, 490.
purchafer entitled to rents as from the laft quarter-day pre-
ceding application to court, 490.
the terms of opening biddings with refpect to the advance
and depofit, and expeuces incurred by former biddings,
491, 492.
Y v 2 no
6 9 z INDEX.
SALES BEFORE MASTER,
no objection to open biddings that the applicant had attended
thefale, 492.
or that they had been opened before on fame lot,
492.
a perfon fubitituted for purchafer under decree without re-
fate, 402.
general rule that biddings cannot be opened after confirma-
tion of mailer's report, 493.
exception thereto, 493.
SCANDAL AND IMPERTINENCE,
if fcandal or impertinence be contained in bill, the proceed-
ings which are to be taken, 43.
bill not to be referred for impertinence after anfwer, or pray-
ing time, 43.
but for fcandal you may refer it at any time, 43.
theconfequence of billreported fcandalous or impertinent, 43.
anfwer may be referred for fcandal or impertinence, 192.
the proceedings thereon, 192.
reference for impertinence waved by one for infufficiency,
192.
after reference for infuffieiency, no reference for imperti-
nence, but may for fcandal, 192.
for fcandal, on motion of another defendant, 192.
on exceptions to matter's report that anfwer is not fcandal-
ous, plaintiff muft fhew in what line, &c. anfwer fcan-
dalous, &c. 193.
if fcandal, &c. be expunged, no exceptions to the report,
*93- .
proceedings on matter's report that anfwer is fcandalous,
&c. 193.
the mode of recovering cods, 193.
depofitions may be referred for fcandal, 207.
SCIRE FACIAS, 78.
SEQUESTRATION,
at what ftage of the caufe to be obtained, 137.
to whom directed, 1^7.
when fir ft granted, 137.
how obtained, 138.
what things may be feized under fequeftratfotij 137, 139,
140, 141.
the difference between fequeflration upon a contempt for
net obeying mefne procefs, and an abfolute. decree-, 140.
on fequeflration on mefne procefs, no fate of goods without
leave of court, J40, 141, 142.
query, whether fequeflration can be granted of defendant's-
eftate in Ireland for contempt here. 141 .
a fequeflration more effectual than a Jieri facias, 142.
from what time fequeflration binds, 142. 144.
fequeftrators, in what manner to ad and to account, 1 39,
afe-
INDEX. 693
SEQUESTRATION,
a fequeftration firfl procefs againft a peer or member of the
Houfe of Commons, 143.
granted againft warden of Fleet for not anfwering, 145.
againft prifoner in Fleet for non-performance of an
order, 145.
a perfon claiming title to eftate fequeftered, may move to be
examined pro interejfe fuo, 144.
defendant may be committed to Fleet for not performing
decree, and the lands fequeftered at the fame time, 144,
145.
fequeftration on mefne procefs abates by death, 14;.
where defendant has ftood out whole procefs to fequeftra-
tion, to be kept on foot as fecuricy for defendant's ap.
pearing to account, 146.
fees to be paid to fequeftrators, 146.
fetting down caufe on fequeftration for taking h'xWpro confijjo,
146.
appointment of receiver discharges fequeftration, 146.
the order of a fequeftration, how to be drawn up, 146.
the form of the order, 146.
SERJEANT AT ARMS,
his office, and how appointed, 24, 135.
the next procefs after commiffion of rebellion, 134.
how moved for, 134.
order for ferjeant at arms, 134.
proceedings thereon, 134.
no fequeftration to hTue but upon return of non ejl inventus
on ferjeant at arms, 134, 135.
return of ferjeant at arms, 134.
party taken upon the procefs mull clear his contempt before
difcharged, 146.
SERVICE. See Subpana.
SETTING DOWN CAUSES FOR HEARING, °
when a caufe may be fet down for hearing, and by whom, 302.
fetting down caufes bv fix-clerks, 302.
iix-cleiku limited as to number of caufes, if complete, caufe
to be fct down by regifter, 303.
note of all caufes, &c. for hearing to be fixed up in regis-
ter's office two days before hearing, 303.
the reg'ftei's book of caufes to be open for infpeftion, 303.
See Subpoena.
SIX CLERKS in Chanccrv, 18, 19.
SOLICITOR, who, 392.'
the court will order folicitor's bill to be taxed by mafter,:92.
the mode of proceeding to get folicitor's bill taxed, and deed)
and papers delivered up, 393, 394.
matter's certificate needs no confirmation, 396.
proceedings on matter's certificate, 396.
calls of taxation, by whom to be paid, 396,
colls at law, or in exchequer, to be taxed by the proper
officers of thofe courts, 393.
2 the
694 INDEX.
SOLICITOR,
the regulations of flat. 2. Geo. 2. refpecting taxation of foil.
citor's bills o f cofls, 393.
no charge ajlowed for drawing hill of fees, nor for journeys
by folicitors in country to attend hearing caufes, 397.
taxation of folicitor's bill after account agreed to and ligned
by client, 397.
and after a very confiderable length of time and fecuri-
ties taken, 5^7.
what is required when folicitor applies to have his name
(truck off the rolls, 397.
SUMMONS,
of witneffes by commidioners, 268.
SUBPCENA, what, 97.
fubpxna note to appear, 97,
entry thereof, 97.
form of fubpxna to anfwer, 97.
labels to the fubpxna, 9S.
the returns of the writ, 98.
fubpxna returnable immediate, how to be applied for, 98, 99.
fubpxna not to iffue till bill filed, except in a bill to ftay wafte
and fuits at law, 99.
fubpxna when, and on whom to be ferved, 103, 104.
in injunction bill to ftay proceedings at law, defendant living
abroad, court will make an order that fervice on plaintiff's
attorney be good fervice, 104.
where motion that fervice of jubpxna on defendant's alter*
ney might be good fervice, was refufed, 105.
where allowed, 105.
what fnall be confidered as a town refidence for the purpofe
of having a fubpxna returnable immediate, \ob.
in cafe of prifoner, fervice of fubpxna on turnkey fufficient,
106.
form of fubpxna for coils, 194.
form of fubpxna to teflify before examiner, 262.
to teftity before commiffioners in the country, 269.
duces tecum to teflify, 270.
a fubpxna to tellify viva voce at the hearing, fervice thereof,
282.
fubpxna to hear judgment, 304.
where, and how to be applied for, 304.
the form of the writ, 30-j^.
when returnable, 305.
how to be ferved, 30.;.
when fervice of this fubpxna on clerk in court will be or-
dered to be good fervice, 305.
ferved on guardian if infant defendant, JO£.
the conftquence, if plaintiff fetting down caufe does not
ferve defendant with fubpxna, 3CO.
if caufe is fet down by defendant, fubpxna mull be ferved
on plaintiff, 306.
• affi*
INDEX. 6gs
SUBPCENA,
affidavit of ferving a fubpcena to hear judgment, 307.
form of fubpana for witnefTes under commifibn of lunacy,
6'2.
SUPPLICAVIT, writ of, 563.
SUPPLEMENTAL BILL,
what, '6.
when neceffary, 66.
when fupplemental bill merely, fuffident, 66. 6t.
when original bill in nature of fupplcmcr.tal bill, neceffarv,
66, 67.
if fuit abates as well as become defective, a bill of revivor
and fupplement, 1
who entitled to have benefit of former proceedings by fnp-
plemental bill, 67.
afiignees of bankrupts may take advantage of former pro-
ceedings by fuppi omental bill, 67.
new interrogatories may be added on fupplemintal bill; 69*.
but irregular after publication, to examine witnefTes to mat-
ter not in iiTue in original caufe, 69.
the proper form of fupp'emental biil y 70.
of original bill in nature of fupplemental bill, 70.
form of fuppltmental bill, C
See Abatement , Bills of Revivor.
SURREJOINDER, 24;.
T.
TERMS, returns of, 635.
USHER of the court, 22.
WRITING clerks, 19.
WARDEN of Fleet, 24
See Sequejlration.
WASTE. See InjurSion
U.
w.
VV CXXO JL Aj. ULL dfllUllLWJIl.
WITNESS. See Commlffiun to examine Witnejfes, Examination of
Witnejfes, Depqfition, Publication.
THE END.
Printed by A. Strahan, Law-Printer to Kis Majefty,
Printers- Street, London.
ERRATA.
Page 13. Line 30. for penalties read petitions
— 37. In th> nore trait the punctuation, and for inquires read inquiries
— - 44.. Line 20 for act read a£ts
— 183. In the note, for 583 read 2S3
— 19 J. Line 9. fir explananation read explanation
— 303. — 10 for relates read relate
— 4S3. At the end of line 14 add quxre
— 493 Line 22. for grounds read ground
w— 500. — 32. for efft£t read aft«