Front Page Titles (by Subject) CHAPTER XXVII.: OF PROCEEDINGS IN THE COURTS OF EQUITY. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXVII.: OF PROCEEDINGS IN THE COURTS OF EQUITY. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF PROCEEDINGS IN THE COURTS OF EQUITY.
**426]Before we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations which were made in the beginning of this book(a) on the principal tribunals of that kind, acknowledged by the constitution of England; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.1
I have already(b) attempted to trace (though very concisely) the history, rise, and progress of the extraordinary court, or court of equity, in chancery. The same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer; with a distinction, however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those peculiar to the chancery.
1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in every feodal view; but *[*427resulted to the king in his court of chancery, together with the general protection(c) of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one; and from all proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the defence of the infant if a suit be commenced against him; a power which is incident to the jurisdiction of every court of justice:(d) but when the interest of a minor comes before the court judicially, in the progress of a cause, or upon a bill for that purpose filed, either tribunal indiscriminately will take care of the property of the infant.
2. As to idiots and lunatics: the king himself used formerly to commit the custody of them to proper committees, in every particular case; but now, to avoid solicitations and the very shadow of undue partiality, a warrant is issued by the king(e) under his royal sign-manual to the chancellor or keeper of his seal to perform this office for him; and, if he acts improperly in granting such custodies, the complaint must be made to the king himself in council.(f) But the previous proceedings on the commission, to inquire whether or no the party be an idiot or a lunatic, are on the law side of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular course of law.2
3. The king, as parens patriæ, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And therefore whenever it is necessary, the attorney-general, at the relation of some in formant, (who is usually called the relator,) files ex officio an information in the court of chancery to have the charity properly established. By statute also 43 Eliz. c. 4, authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lancaster, respectively, to grant **428]commissions under their several seals, to inquire into any abuses of charitable donations, and rectify the same by decree; which may be reviewed in the respective courts of the several chancellors, upon exceptions taken thereto. But, though this is done in the petty-bag office in the court of chancery, because the commission is there returned, it is not a proceeding at common law, but treated as an original cause in the court of equity. The evidence below is not taken down in writing, and the respondent in his answer to the exceptions may allege what new matter he pleases; upon which they go to proof, and examine witnesses in writing upon all the matters in issue: and the court may decree the respondent to pay all the costs, though no such authority is given by the statute. And as it is thus considered as an original cause throughout, an appeal lies of course from the chancellor’s decree to the house of peers,(g) notwithstanding any loose opinions to the contrary.(h)3
4. By the several statutes relating to bankrupts, a summary jurisdiction is given to the chancellor in many matters consequential or previous to the commissions thereby directed to be issued; from which the statutes give no appeal.4
On the other hand, the jurisdiction of the court of chancery doth not extend to some causes wherein relief may be had in the exchequer. No information can be brought, in chancery, for such mistaken charities as are given to the king by the statutes for suppressing superstitious uses. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee.(i)5 Such causes must be determined in the court of exchequer, as a court of revenue; which alone has power **429]over the king’s treasury, and the officers employed in its management: unless where it properly belongs to the duchy court of Lancaster, which hath also a similar jurisdiction as a court of revenue, and, like the other, consists of both a court of law and a court of equity.
In all other matters, what is said of the courty of equity in chancery will be equally applicable to the other courts of equity. Whatever difference there may be in the forms of practice, it arises from the different constitution of their officers: or, if they differ in any thing more essential, one of them must certainly be wrong; for truth and justice are always uniform, and ought equally to be adopted by them all.
Let us next take a brief, but comprehensive, view of the general nature of equity, as now understood and practised in our several courts of judicature. I have formerly touched upon it,(k) but imperfectly: it deserves a most complete explication. Yet as nothing is hitherto extant, that can give a stranger a tolerable idea of the courts of equity subsisting in England, as distinguished from the courts of law, the compiler of these observations cannot but attempt it with diffidence: those who know them best are too much employed to find time to write; and those who have attended but little in those courts must be often at a loss for materials.
Equity, then, in its true and genuine meaning, is the soul and spirit of all law: positive law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity, and a court of law, as contrasted to each other, are apt to confound and mislead us: as if the one judged without equity, and the other was not bound by any law. Whereas every definition or illustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity *[*430in opposition to each other, will be found either totally erroneous, or erroneous to a certain degree.
1. Thus in the first place it is said,(l) that it is the business of a court of equity in England to abate the rigour of the common law. But no such power is contended for. Hard was the case of bond-creditors whose debtor devised away his real estate; rigorous and unjust the rule which put the devisee in a better condition than the heir;(m) yet a court of equity had no power to interpose. Hard is the common law still subsisting, that land devised, or descending to the heir, shall not be liable to simple contract debts of the ancestor or devisor,(n) although the money was laid out in purchasing the very land; and that the father shall never immediately succeed as heir to the real estate of the son;(o) but a court of equity can give no relief; though in both these instances the artificial reason of the law, arising from feodal principles, has long ago entirely ceased. The like may be observed of the descent of lands to a remote relation of the whole blood, or even their escheat to the lord, in preference to the owner’s half-brother;(p) and of the total stop to all justice, by causing the parol to demur(q) whenever an infant is sued as heir, or is party to a real action. In all such cases of positive law, the courts of equity, as well as the courts of law, must say, with Ulpian,(r) “hoc quidem perquam durum est, sed ita lex scripta est.”
2. It is said,(s) that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature. In general law all cases cannot be foreseen, or, if foreseen, cannot be expressed: some will arise that will fall within the *[*431meaning, though not within the words, of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly expected. These cases, thus out of the letter, are often said to be within the equity, of an act of parliament; and so cases within the letter are frequently out of the equity. Here by equity we mean nothing but the sound interpretation of the law; though the words of the law itself may be too general, too special, or otherwise inaccurate or defective. These then are the cases which, as Grotius(t) says, “lex non exacte definit, sed arbitrio boni viri permittit;” in order to find out the true sense and meaning of the lawgiver, from every other topic of construction. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity: the construction must in both be the same: or, if they differ, it is only as one court of law may also happen to differ from another. Each endeavours to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense in a single title.
3. Again, it hath been said(u) that fraud, accident, and trust are the proper and peculiar objects of a court of equity. But every kind of fraud is equally cognizable, and equally adverted to, in a court of law; and some frauds are cognizable only there: as fraud in obtaining a devise of lands, which is always sent out of the equity courts to be there determined. Many accidents are also supplied in a court of law; as, loss of deeds, mistakes in receipts or accounts, wrong payments, deaths which make it impossible to perform a condition literally, and a multitude of other contingencies: and many cannot be relieved even in a court of equity; as, if by accident a recovery is ill suffered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a family settlement. A technical trust, indeed, created by the limitation of a second use, was forced into **432]the courts of equity in the manner formerly mentioned;(w) and this species of trust, extended by inference and construction, have ever since remained as a kind of peculium in those courts. But there are other trusts which are cognizable in a court of law; as deposits, and all manner of bailments; and especially that implied contract, so highly beneficial and useful, of having undertaken to account for money received to another’s use,(x) which is the ground of an action on the case almost as universally remedial as a bill in equity.
4. Once more: it has been said that a court of equity is not bound by rules or precedents, but acts from the opinion of the judge,(y) founded on the circumstance of every particular case. Whereas the system of our courts of equity is a laboured, connected system, governed by established rules, and bound down by precedents from which they do not depart, although the reason of some of them may perhaps be liable to objection. Thus, the refusing a wife her dower in a trust-estate,(z) yet allowing the husband his curtesy; the holding the penalty of a bond to be merely a security for the debt and interest, yet considering it sometimes as the debt itself, so that the interest shall not exceed that penalty;(a) the distinguishing between a mortgage at five per cent. with a clause of a reduction to four if the interest be regularly paid, and a mortgage at four per cent. with a clause of enlargement to five if the payment of the interest be deferred; so that the former shall be deemed a conscientious, the latter an unrighteous, bargain:(b) all these, and other cases that might be instanced, are plainly rules of positive law, supported only by *[*433the reverence that is shown, and generally very properly shown, to a series of former determinations, that the rule of property may be uniform and steady. Nay, sometimes a precedent is so strictly followed that a particular judgment founded upon special circumstances(c) gives rise to a general rule.
In short, if a court of equity in England did really act as many ingenious writers have supposed it (from theory) to do, it would rise above all law, either common or statute, and be a most arbitrary legislator in every particular case. No wonder they are so often mistaken. Grotius, or Puffendorf, or any other of the great masters of jurisprudence, would have been as little able to discover by their own light the system of a court of equity in England as the system of a court of law; especially as the notions before mentioned of the character, power, and practice of a court of equity were formerly adopted and propagated (though not with approbation of the thing) by our principal antiquaries and lawyers, Spelman,(d) Coke,(e) Lambard,(f) and Selden,(g) and even the great Bacon(h) himself. But this was in the infancy of our courts of equity, before their jurisdiction was settled, and when the chancellors themselves, partly from their ignorance of law, (being frequently bishops or statesmen,) partly from ambition or lust of power, (encouraged by the arbitrary principles of the age they lived in,) but principally from the narrow and unjust decisions of the courts of law, had arrogated to themselves such unlimited authority as hath totally been disclaimed by their successors for now above a century past. The decrees of a court of equity were then rather in the nature of awards formed on the sudden pro re nata with more probity of intention than knowledge of the subject, *[*434founded on no settled principles, as being never designed, and therefore never used, for precedents. But the systems of jurisprudence in our courts, both of law and equity, are now equally artificial systems, founded on the same principles of justice and positive law, but varied by different usages in the forms and mode of their proceedings; the one being originally derived (though much reformed and improved) from the feodal customs as they prevailed in different ages in the Saxon and Norman judicatures; the other (but with equal improvements) from the imperial and pontifical formularies introduced by their clerical chancellors.
The suggestion, indeed, of every bill to give jurisdiction to the courts of equity (copied from those early times) is, that the complainant hath no remedy at the common law. But he who should from thence conclude that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent and variety of the cases in our equity reports, must think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation in both courts are, or should be, exactly the same; both ought to adopt the best, or must cease to be courts of justice. Formerly some causes, which now no longer exist, might occasion a different rule to be followed in one court from what was afterwards adopted in the other, as founded in the nature and reason of the thing; but the instant those causes ceased, the measure of substantial justice ought to have been the same in both. Thus, the penalty of a bond, originally contrived to evade the absurdity of those monkish constitutions which prohibited taking interest for money, was therefore very pardonably considered as the real debt in the courts of law, when the debtor neglected to perform his agreement for the return of the loan with interest; for the judges could not, as the law then stood, give judgment that the interest should be specifically paid. But when afterwards the taking of interest became legal, as the necessary companion of commerce,(i) nay, after the statute of 37 Hen. VIII. c. 9 had declared the *[*435debt or loan itself to be “the just and true intent” for which the obligation was given, their narrow-minded successors still adhered wilfully and technically to the letter of the antient precedents, and refused to consider the payment of principal, interest, and costs as a full satisfaction of the bond. At the same time, more liberal men, who sat in the courts of equity, construed the instrument according to its “just and true intent,” as merely a security for the loan, in which light it was certainly understood by the parties, at least after these determinations, and therefore this construction should have been universally received. So in mortgages, being only a landed as the other is a personal security for the money lent, the payment of principal, interest, and costs ought at any time before judgment executed to have saved the forfeiture in a court of law as well as in a court of equity. And the inconvenience as well as injustice of putting different constructions in different courts upon one and the same transaction obliged the parliament at length to interfere, and to direct, by the statutes 4 & 5 Anne, c. 16, and 7 Geo. II. c. 20, that, in the cases of bonds and mortgages, what had long been the practice of the courts of equity should also for the future be universally followed in the courts of law; wherein it had before these statutes in some degree obtained a footing.(j)
Again: neither a court of equity nor of law can vary men’s wills or agreements, or (in other words) make wills or agreements for them. Both are to understand them truly, and therefore both of them uniformly. One court ought not to extend, nor the other abridge, a lawful provision deliberately settled by the parties, contrary to its just intent. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages; as a rent of 5l. an acre for ploughing up antient meadow:(k) nor against a lapse of time, where the time is material to the contract; as in covenants for renewal of leases. Both courts will equitably construe, but neither pretends to control or change, a lawful stipulation or engagement.
**436]The rules of decision are in both courts equally apposite to the subjects of which they take cognizance. Where the subject-matter is such as requires to be determined secundum æquum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal equity. In matters of positive right, both courts must submit to and follow those antient and invariable maxims “quæ relicta sunt et tradita.”(l) Both follow the law of nations, and collect it from history and the most approved authors of all countries, where the question is the object of that law: as in the case of the privileges of embassadors,(m) hostages, or ransom-bills.(n) In mercantile transactions they follow the marine law,(o) and argue from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction, they both follow the law of the proper forum:(p) in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject;(q) and, if a question came before either, which was properly the object of a foreign municipal law, they would both receive information what is the rule of the country,(r) and would both decide accordingly.
Such then being the parity of law and reason which governs both species of courts, wherein (it may be asked) does their essential difference consist? It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief. Upon these, and upon two other accidental grounds of jurisdiction, which were formerly driven into those courts by narrow decisions of the courts of law, viz., the true construction of securities for money lent, and the form and effect **437]of a trust or second use; upon these main pillars hath been gradually erected that structure of jurisprudence which prevails in our courts of equity, and is inwardly bottomed upon the same substantial foundations as the legal system which hath hitherto been delineated in these commentaries; however different they may appear in their outward form, from the different taste of their architects.
1. And, first, as to the mode of proof. When facts, or their leading circumstances, rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath with regard to the truth of the transaction; and, that being once discovered, the judgment is the same in equity as it would have been at law. But, for want of this discovery at law, the courts of equity have acquired a concurrent jurisdiction with every other court in all matters of account.(s) As incident to accounts, they take a concurrent cognizance of the administration of personal assets,(t) consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators.(u) As incident to accounts, they also take the concurrent jurisdiction of tithes, and all questions relating thereto;(w) of all dealings in partnership,(x) and many other mercantile transactions; and so of bailiffs, receivers, factors, and agents.(y) It would be endless to point out all the several avenues in human affairs, and in this commercial age, which lead to or end in accounts.
From the same fruitful source, the compulsive discovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud;(z) all matters in the private knowledge of the party, which, though concealed, are binding in conscience; and all judgments at law, obtained through such fraud or concealment. And this, not by *[*438impeaching or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a judgment obtained by suppressing the truth;(a) and which, had the same facts appeared on the trial as now are discovered, he would never have attained at all.6
2. As to the mode of trial. This is by interrogatories administered to the witnesses, upon which their depositions are taken in writing, wherever they happen to reside. If therefore the cause arises in a foreign country, and the witnesses reside upon the spot; if, in causes arising in England, the witnesses are abroad, or shortly to leave the kingdom; or if witnesses residing at home are aged or infirm; any of these cases lays a ground for a court of equity to grant a commission to examine them, and (in consequence)7 to exercise the same jurisdiction, which might have been exercised at law, if the witnesses could probably attend.
3. With respect to the mode of relief. The want of a more specific remedy, than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases. To instance in executory agreements. A court of equity will compel them to be carried into strict execution,(b) unless where it is improper or impossible: instead of giving damages for their non-performance. And hence a fiction is established, that what ought to be done shall be considered as being actually done,(c) and shall relate back to the time when it ought to have been done originally: and this fiction is so closely pursued through all its consequences, that it necessarily branches out into many rules of jurisprudence, which form a certain regular system. So of waste, and other similar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction.(d) Over questions that may be tried at law, in a great multiplicity of actions, a court of equity assumes a *[*439jurisdiction, to prevent the expense and vexation of endless litigations and suits.(e) In various kinds of frauds it assumes a concurrent(f) jurisdiction, not only for the sake of a discovery, but of a more extensive and specific relief: as by setting aside fraudulent deeds,(g) decreeing reconveyances,(h) or directing an absolute conveyance merely to stand as a security.(i) And thus, lastly, for the sake of a more beneficial and complete relief by decreeing a sale of lands,(k) a court of equity holds plea of all debts, encumbrances, and charges that may affect it or issue thereout.
4. The true construction of securities for money lent is another fountain of jurisdiction in courts of equity. When they held the penalty of a bond to be the form, and that in substance it was only as a pledge to secure the repayment of the sum bona fide advanced, with a proper compensation for the use, they laid the foundation of a regular series of determinations, which have settled the doctrine of personal pledges or securities, and are equally applicable to mortgages of real property. The mortgagor continues owner of the land, the mortgagee of the money lent upon it; but this ownership is mutually transferred, and the mortgagor is barred from redemption if, when called upon by the mortgagee, he does not redeem within a time limited by the court; or he may when out of possession be barred by length of time, by analogy to the statute of limitations.
5. The form of a trust, or second use, gives the courts of equity an exclusive jurisdiction as to the subject-matter of all settlements and devises in that form, and of all the long terms created in the present complicated mode of conveyancing. This is a very ample source of jurisdiction: but the trust is governed by very nearly the same rules, as would govern the estate in a court of law,(l) if no trustee was interposed: and **440]by a regular positive system established in the courts of equity, the doctrine of trusts is now reduced to as great a certainty as that of legal estates in the courts of the common law.
These are the principal (for I omit the minuter) grounds of the jurisdiction at present exercised in our courts of equity: which differ, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived to maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page;(m) and which have been implicitly received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions, by which in the course of a century this mighty river hath imperceptibly shifted its channel. Lambard in particular, in the reign of queen Elizabeth, lays it down,(n) that “equity should not be appealed unto, but only in rare and extraordinary matters: and that a good chancellor will not arrogate authority in every complaint that shall be brought before him upon whatsoever suggestion: and thereby both overthrow the authority of the courts of common law, and bring upon men such a confusion and uncertainty, as hardly any man should know how or how long to hold his own assured to him.” And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers would have become too arbitrary to have been endured in a country like this,(o) which boasts of being governed in all respects by law and not by will. But since the time when Lambard wrote, a set of great and eminent lawyers,(p) who have successively held the great seal, have by degrees erected the system of relief administered by a court of equity into a regular **441]science, which cannot be attained without study and experience, any more than the science of law: but from which, when understood, it may be known what remedy a suitor is entitled to expect, and by what mode of suit, as readily and with as much precision in a court of equity as in a court of law.
It were much to be wished, for the sake of certainty, peace, and justice, that each court would as far as possible follow the other, in the best and most effectual rules for attaining those desirable ends. It is a maxim that equity follows the law; and in former days the law had not scrupled to follow even that equity which was laid down by the clerical chancellors. Every one who is conversant in our antient books, knows that many valuable improvements in the state of our tenures (especially in leaseholds(q) and copyholds)(r) and the forms of administering justice,(s) have arisen from this single reason, that the same thing was constantly effected by means of a subpœna in the chancery. And sure there cannot be a greater solecism, than that in two sovereign independent courts established in the same country, exercising concurrent jurisdiction, and over the same subject-matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other.
It would carry me beyond the bounds of my present purpose to go further into this matter. I have been tempted to go so far, because strangers are apt to be confounded by nominal distinctions, and the loose unguarded expressions to be met with in the best of our writers; and thence to form erroneous ideas of the separate jurisdictions now existing in England, but which never were separated in any other country in the universe. It hath also afforded me an opportunity to vindicate, on the one hand, the justice of our *[*442courts of law from being that harsh and illiberal rule, which many are too ready to suppose it; and, on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects, amends, and controls it by the loose and fluctuating dictates of the conscience of a single judge. It is now high time to proceed to the practice of our courts of equity, thus explained, and thus understood.8
The first commencement of a suit in chancery is by preferring a bill to the lord chancellor, in the style of a petition; “humbly complaining showeth to your lordship your orator A B, that,” &c. This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts: setting forth the circumstances of the case at length, as, some fraud, trust, or hardship; “in tender consideration whereof,” (which is the usual language of the bill,) “and for that your orator is wholly without remedy at the common law,” relief is therefore prayed at the chancellor’s hands, and also process of subpœna against the defendant, to compel him to answer upon oath to all the matter charged in the bill. And, if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed, in the nature of an interdictum by the civil law, commanding the defendant to cease.
This bill must call all necessary parties, however remotely concerned in interest, before the court; otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain matter either scandalous or impertinent: if it does, the defendant may refuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; of whom there are in number twelve, including the master of the rolls, all of whom, so late as the reign of queen Elizabeth, were commonly doctors of the civil *[*443law.(s) The master is to examine the propriety of the bill: and if he reports it scandalous or impertinent, such matter must be struck out, and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill.
When the bill is filed in the office of the six clerks, (who originally were all in orders; and therefore, when the constitution of the court began to alter, a law(t) was made to permit them to marry,) when, I say, the bill is thus filed, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case.9 If the bill be to stay execution upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an injunction will issue of course; and, when the answer comes in, the injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately, to continue till the defendant has put in his answer, and till the court shall make some further order concerning it: and when the answer comes in, whether it shall then be dissolved or continued till the hearing of the cause, is determined by the court upon argument, drawn from considering the answer and affidavit together.
But, upon common bills, as soon as they are filed, process of subpœna is taken out: which is a writ commanding the defendant to appear and answer to the bill, on pain of 100l. But this is not all; for if the defendant, on service of the subpœna, does not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill, he is then said to be in contempt; and the respective processes of contempt are in successive order awarded against him. The first of which is an attachment, which is a writ **444]in the nature of a capias, directed to the sheriff, and commanding him to attach, or take up, the defendant, and bring him into court. If the sheriff roturns that the defendant is non est inventus, then an attachment with proclamations issues; which, besides the ordinary form of attachment, directs the sheriff, that he cause public proclamations to be made, throughout the county, to summon the defendant, upon his allegiance, personally to appear and answer. If this be also returned with a non est inventus, and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the king’s proclamations according to his allegiance; and four commissioners therein named, or any of them, are ordered to attach him wheresoever he may be found in Great Britain, as a rebel and contemner of the king’s laws and government, by refusing to attend his sovereign when thereunto required: since, as was before observed,(u) matters of equity were originally determined by the king in person, assisted by his council; though that business is now devolved upon his chancellor. If upon this commission of rebellion a non est inventus is returned, the court then sends a serjeant-at-arms in quest of him; and if he eludes the search of the serjeant also, then a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the order of the court. Sequestrations were first introduced by Sir Nicholas Bacon, lord keeper in the reign of queen Elizabeth; before which the court found some difficulty in enforcing its process and decrees.(v) After an order for a sequestration issued, the plaintiff’s bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the performance of the decree. Thus much if the defendant absconds.
If the defendant is taken upon any of this process, he is to be committed to the Fleet or other prison till he puts in his appearance or answer, or performs whatever else this **445]process is issued to enforce, and also clears his contempts by paying the costs which the plaintiff has incurred thereby. For the same kind of process (which was also the process of the court of star-chamber till its dissolution)(w) is issued out in all sorts of contempts during the progress of the cause if the parties in any point refuse or neglect to obey the order of the court.
The process against a body corporate is by distringas, to distrain them by their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. And if a peer is a defendant, the lord chancellor sends a letter missive to him to request his appearance, together with a copy of the bill; and if he neglects to appear, then he may be served with a subpœna; and if he continues still in contempt, a sequestration issues out immediately against his lands and goods, without any of the mesne process of attachments, &c., which are directed only against the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the house of commons, except only that the lord chancellor sends him no letter missive.
The ordinary process before mentioned cannot be sued out till after the service of the subpœna, for then the contempt begins; otherwise he is not presumed to have notice of the bill; and therefore by absconding to avoid the subpœna a defendant might have eluded justice, till the statute 5 Geo. II. c. 25, which enacts that where the defendant cannot be found to be served with process of subpœna, and absconds (as is believed) to avoid being served therewith, a day shall be appointed him to appear to the bill of the plaintiff, which is to be inserted in the London gazette, read in the parish church where the defendant last lived, and fixed up at the royal exchange; and, if the defendant doth not appear upon that day, the bill shall be taken pro confesso.
But if the defendant appears regularly, and takes a copy of the bill, he is next to demur, plead, or answer.
*[*446A demurrer in equity is nearly of the same nature as a demurrer in law, being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff’s bill; as for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; or where the bill seeks a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour. For any of these causes a defendant may demur to the bill. And if, on demurrer, the defendant prevails, the plaintiff’s bill shall be dismissed: if the demurrer be overruled, the defendant is ordered to answer.10
A plea may be either to the jurisdiction, showing that the court has no cognizance of the cause, or to the person, showing some disability in the plaintiff, as by outlawry, excommunication, and the like: or it is in bar; showing some matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and answer to the residue. But no exceptions to formal minutiæ in the pleadings will be here allowed; for the parties are at liberty, on the discovery of any errors in form, to amend them.(x)
An answer is the most usual defence that is made to a plaintiff’s bill. It is given in upon oath, or the honour of a peer or peeress: but where there are amicable defendants, their answer is usually taken without oath, by consent of the plaintiff. This method of proceeding is taken from the ecclesiastical courts, like the rest of the practice in chancery; for there, in almost every case, the plaintiff may demand the *[*447oath of his adversary in supply of proof. Formerly this was done in those courts with compurgators, in the manner of our waging of law; but this has been long disused; and instead of it the present kind of purgation, by the single oath of the party himself, was introduced. This oath was made use of in the spiritual courts, as well in criminal cases of ecclesiastical cognizance as in matters of civil right; and it was then usually denominated the oath ex officio: whereof the high commission court in particular made a most extravagant and illegal use; forming a court of inquisition, in which all persons were obliged to answer in cases of bare suspicion, if the commissioners thought proper to proceed against them ex officio for any supposed ecclesiastical enormities. But when the high commission court was abolished by statute 16 Car. I. c. 11, this oath ex officio was abolished with it; and it is also enacted, by statute 13 Car. II. st. 1, c. 12, “that it shall not be lawful for any bishop or ecclesiastical judge to tender to any person the oath ex officio, or any other oath, whereby the party may be charged or compelled to confess, accuse, or purge himself of any criminal matter.” But this does not extend to oaths in a civil suit; and therefore it is still the practice, both in the spiritual courts and in equity, to demand the personal answer of the party himself upon oath. Yet if in the bill any question be put that tends to the discovery of any crime, the defendant may thereupon demur, as was before observed, and may refuse to answer.
If the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court: if farther off, there may be a dedimus potestatem, or commission to take his answer in the country, where the commissioners administer him the usual oath; and then, the answer being sealed up, either one of the commissioners carries it up to the court, or it is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it. An answer must be signed by counsel, and must either deny or confess all the **448]material parts of the bill; or it may confess and avoid, that is, justify or palliate the facts. If one of these is not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. A defendant cannot pray any thing in this his answer but to be dismissed the court; if he has any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross-bill.
After answer put in, the plaintiff upon payment of costs may amends his bill, either by adding new parties, or new matter, or both, upon the new lights given him by the defendant; and the defendant is obliged to answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant’s answer, whereby the cause is at issue; for afterwards, if new matter arises, which did not exist before, he must set it forth by a supplemental-bill. There may be also a bill of revivor when the suit is abated by the death of any of the parties; in order to set the proceedings again in motion, without which they remain at a stand. And there is likewise a bill of interpleader; where a person who owes a debt or rent to one of the parties in suit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be safe in the payment. In this last case it is usual to order the money to be paid into court for the benefit of such of the parties to whom upon hearing the court shall decree it to be due. But this depends upon circumstances; and the plaintiff must also annex an affidavit to his bill, swearing that he does not collude with either of the parties.11
If the plaintiff finds sufficient matter confessed in the defendant’s answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defendant’s answer to be true, in every point. Otherwise the course is for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant’s answer to be **449]directly the reverse; which he is ready to prove as the court shall award; upon which the defendant rejoins, averring the like on his side; which is joining issue upon the facts in dispute. To prove which facts is the next concern.
This is done by examination of witnesses, and taking their depositions in writing, according to the manner of the civil law. And for that purpose interrogatories are framed, or questions in writing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These interrogatories must be short and pertinent: not leading ones; (as, “did not you see this? or, did not you hear that?”) for if they be such, the depositions taken thereon will be suppressed and not suffered to be read. For the purpose of examining witnesses in or near London, there is an examiner’s office appointed; but for such as live in the country, a commission to examine witnesses is usually granted to four commissioners, two named of each side, or any three or two of them, to take the depositions there. And if the witnesses reside beyond sea, a commission may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of skilful interpreters. And it hath been established(y) that the deposition of a heathen who believes in the Supreme Being, taken by commission in the most solemn manner according to the custom of his own country, may be read in evidence.
The commissioners are sworn to take the examinations truly and without partiality, and not to divulge them till published in the court of chancery; and their clerks are also sworn to secrecy. The witnesses are compellable by process of subpœna, as in the courts of common law, to appear and submit to examination. And when their depositions are taken, they are transmitted to the court with the same care that the answer of a defendant is sent.
*[*450If witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man’s antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law, and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity: and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he contests the will. This is what is usually meant by proving a will in chancery.
When all the witnesses are examined, then, and not before, the depositions may be published, by a rule to pass publication; after which they are open for the inspection of all the parties, and copies may be taken of them. The cause is then ripe to be set down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the master of the rolls, according to the discretion of the clerk in court, regulated by the nature and importance of the suit, and the arrear of causes depending before each of them respectively. Concerning the authority of the master of the rolls, to hear and determine causes, and his general power in the court of chancery, there were (not many years since) divers questions, and disputes very warmly agitated; to quiet which it was declared, by statute 3 Geo. II. c. 30, that all orders and decrees by him made, except such as by the course of the court were appropriated to the great seal alone, should be deemed to be valid; subject nevertheless to be discharged or altered by the lord chancellor, and so as they shall not be enrolled, till the same are signed by his lordship. Either party may be subpœnæd to hear judgment *[*451on the day so fixed for the hearing; and then, if the plaintiff does not attend, his bill is dismissed with costs; or, if the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff’s cost of attendance, and shows good cause to the contrary on a day appointed by the court. A plaintiff’s bill may also at any time be dismissed for want of prosecution, which is in the nature of a non-suit at law, if he suffers three terms to elapse without moving forward in the cause.
When there are cross-causes, on a cross-bill filled by the defendant against the plaintiff in the original cause, they are generally contrived to be brought on together, that the same hearing and the same decree may serve for both of them. The method of hearing causes in court is usually this. The parties on both sides appearing by their counsel, the plaintiff’s bill is first opened, or briefly abridged, and the defendant’s answer also, by the junior counsel on each side: after which the plaintiff’s leading counsel states the case and the matters in issue, and the points of equity arising therefrom: and then such depositions as are called for by the plaintiff are read by one of the six clerks, and the plaintiff may also read such part of the defendant’s answer as he thinks material or convenient:(z) and after this the rest of the counsel for the plaintiff make their observations and arguments. Then the defendant’s counsel go through the same process for him, except that they may not read any part of his answer; and the counsel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in debate according to equity and good conscience; which decree being usually very long, the minutes of it are taken down, and read openly in court by the registrar.12 The matter of costs to be given to either party is not here held to be a point of right, but merely discretionary (by the statute 17 Ric. II. c. 6) according to the circumstances of the case, as they **452]appear more or less favourable to the party vanquished. And yet the statute 15 Hen. VI. c. 4 seems expressly to direct, that as well damages as costs shall be given to the defendant, if wrongfully vexed in this court.
The chancellor’s decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury; especially such important facts as the validity of a will, or whether A. is the heir at law to B., or the existence of a modus decimandi, or real and immemorial composition for tithes. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of king’s bench, or at the assizes, upon a feigned issue. For (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is brought, wherein the plaintiff by a fiction declares that he laid a wager of 5l. with the defendant that A. was heir at law to B.; and then avers that he is so; and therefore demands the 5l. The defendant admits the feigned wager, but avers that A. is not the heir to B.; and thereupon that issue is joined, which is directed out of chancery to be tried; and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans;(a) and are also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading, and thereby to save much time and expense in the decision of a cause.13
So, likewise, if a question of mere law arises in the course of a cause, as whether by the words of a will an estate for life or **453]in tail is created, or whether a future interest devised by a testator shall operate as a remainder or an executory devise, it is the practice of this court to refer it to the opinion of the judges of the court of king’s bench or common pleas, upon a case stated for that purpose,14 wherein all the material facts are admitted, and the point of law is submitted to their decision; who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. And upon such certificate the decree is usually founded.
Another thing also retards the completion of decrees. Frequently long accounts are to be settled, encumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always, by the decree on the first hearing, referred to a master in chancery to examine, which examinations frequently last for years; and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and overruled; or otherwise is confirmed, and made absolute, by order of the court.
When all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved, and a final decree is made; the performance of which is enforced (if necessary) by commitment of the person, or sequestration of the party’s estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges sitting for him, or before the master of the rolls. For, whoever may have heard the cause, it is the chancellor’s decree, and must be signed by him before it is enrolled;(b) which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the *[*454rehearing, all the evidence taken in the cause, whether read before or not, is now admitted to be read; because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may be supplied.(c) But, after the decree is once signed and enrolled, it cannot be reheard or rectified but by bill of review, or by appeal to the house of lords.
A bill of review15 may be had upon apparent error in judgment appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill of review.
An appeal to parliament, that is, to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court; and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said(d) to have begun in 18 Jac. I., and it is certain that the first petition, which appears in the records of parliament, was preferred in that year;(e) and that the first which was heard and determined (though the name of appeal was then a novelty) was presented in a few months after;(f) both levelled against the lord chancellor Bacon for corruption and other misbehaviour. It was afterwards warmly controverted by the house of commons in the reign of Charles the Second.(g) But this dispute is now at rest:(h) it being obvious to the reason of all mankind, that, when the courts of equity became principal tribunals for deciding causes of property, a revision of their **455]decrees (by way of appeal) became equally necessary as a writ of error from the judgment of a court of law. And, upon the same principle, from decrees of the chancellor relating to the commissioners for the dissolution of chauntries, &c., under the statute 37 Hen. VIII. c. 4, (as well as for charitable uses under the statute 43 Eliz. c. 4,) an appeal to the king in parliament was always unquestionably allowed.(i) But no new evidence is admitted in the house of lords upon any account; this being a distinct jurisdiction:(k) which differs it very considerably from those instances, wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law, (though constantly followed in the spiritual courts,) when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below. And thus much for the general method of proceeding in the courts of equity.
the end of the third book.
[(a) ] Pages 45, 50, 78.
[1 ] That the courts of equity and courts of law are not opposed to each other, and often concur in the exercise of their powers, to promote the ends of substantial justice, is not now disputed. It is said that matters of fact should be left to courts of law for the decision of a jury, (1 Ridgway’s Parl. Car. 9;) and issues are oftentimes directed for that purpose; yet “there is no doubt,” says lord Eldon, “that according to the constitution of this court it may take upon itself the decision of every fact put in issue upon the record.” And again, “This court has a right (to be exercised very tenderly and sparingly) of deciding without issues.” 9 Ves. 168. The general rule is that a court of equity will never exercise jurisdiction over criminal proceedings. Yet in a case where the plaintiffs indicted defendant’s agent at the sessions, where the plaintiffs themselves were judges, for a breach of the peace, lord Hardwicke made an order to restrain the prosecution till after hearing of the cause and further order; and where a bill is brought to quiet possession, if the plaintiff afterwards prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 302. The court of chancery has no jurisdiction to prevent a crime, except in the protection of infants. Therefore it is said that the publication of a libel cannot be restrained. 2 Swan. 413. Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. The court of chancery has a concurrent jurisdiction with the admiralty, (Gilb. Eq. Rep. 228,) and may repeal letters of reprisal after a peace, though there is a clause in the patent that no treaty of peace shall prejudice it. 1 Vern. 54. So equity may relieve after verdict in King’s Bench or Common Pleas, and even grant a perpetual injunction after five trials at law on the same point, and verdicts the same way; but equity is very tender in the exercise of this power. 2 P. W. 425. 10 Mod. 1. And a court of equity will not review the orders of the Exchequer as a court of revenue; nor interfere where that court, as a court of revenue, is competent to decide the subject-matter. 3 Ridgw. P. C. 80.
Matters arising out of England.—A question concerning the right and title to the Isle of Man may be determined in a court of chancery. 1 Ves. 202. Where the defendant is in England, though the cause of suit arose in the plantations, if the bill be brought here, the court agens in personam may, by compulsion of the person, force him to do justice; for the jurisdiction of the chancellor is not ousted, (3 Atk. 589. See 1 Jac. & W. 27;) and this although in general all questions respecting real estates belong to the country where they are situate. Elliott vs. Lord Minto, 6 Mod. 16.
1st. It is assistant to the common law by removing legal impediments to a fair decision of a question depending in those courts; as preventing the setting up of outstanding terms, &c. 5 Mad. 428. 2 J. & W. 391.
2d. It acts concurrently with the common law by compelling a discovery which may enable those courts to decide according to the real facts and justice of the case; as where the discovery is to ascertain whether the defendant did not promise to marry, (Forrest, Rep. 42;) or to disprove the defendant’s plea, that he had made no promise within six years, and to compel him to state whether he has not promised within that time, (5 Mad. 331;) but he has a right to protect himself in equity by the statute of limitations from a discovery as to the original constitution of the debt, or whether it has since been paid. 5 Mad. 331. So he may be required to disclose whether he is an alien or not, (2 Ves. Sen. 287, 494;) but where a discovery would subject a party to penalty or forfeiture it is not to be obtained, (1 Ves. 56. 2 Ch. Rep. 68. 2 Atk. 392. 2 Ves. 265. 1 Eq. Abr 131, p. 10;) except in cases under the stock-jobbing act, (7 Geo. II. c. 8, s. 1, 2 Marsh Rep. 125,) and some other particular provisions. Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. Vide Mitf. Pl. 150. It exercises concurrent jurisdiction in perpetuating testimony in danger of being lost before it can be used; by preserving property during litigation; by counteracting fraudulent judgments; by setting bounds to oppressive litigation; and in cases of fraud, accident, mistake, account, partition, and dower.
3d. It claims exclusive jurisdiction in matters of trust and confidence, and whenever, upon the principles of universal justice, the interference of a court of judicature is necessary to prevent a wrong, and the positive law is silent. 1 Fonb. Eq. p. 9, n. (f.)
The matters over which the court of chancery maintains an equitable jurisdiction have been arranged in the following alphabetical order; and, as this analysis has the recommendation of practical utility, we shall proceed to embody the principal rules and decisions under each head respectively.
1st. Accident and Mistake.—By accident is meant, where a case is distinguished from others of the like nature by unusual circumstances; for the court of chancery cannot control the maxims of the common law, because of general inconvenience; but only where the observation of a rule is attended with some unusual and particular inconvenience. 10 Mod. 1.
1. Bonds, &c.—Equity will relieve against the loss of deeds (3 V. & B. 54) or bonds, (5 Ves. 235. 6 Ves. 812,) but not if the bond be voluntary. 1 Ch. Ca. 77. It will also see up a bond so lost, or destroyed, against sureties, though the principal be out of the jurisdiction. 3 Atk. 93. 1 Ch. Ca. 77. 9 Ves. 464. Bonds made joint, instead of several, may be modified according to intent in some cases. 2 Atk. 33. 9 Ves. 118. 17 Ves. 514. 1 Meriv. 564.
Boundaries, &c.—Equity will ascertain the boundaries, or fix the value, where lands have been intermixed by unity of possession. 2 Meriv. 507. 1 Swanst. 9. So to distinguish copyhold from freehold lands within the manor. 4 Ves. 180. Nels. 14.
Penalties, Forfeitures, &c., incurred by accident, are relieved against, (2 Vern. 594. 1 Stra. 453. 1 Bro. C. C. 418. 2 Sch. & Lef. 685,) where the thing may be done after wards, or a compensation made for it. 1 Ch. Ca. 24. 2 Ventr. 352. 9 Mod. 22. 18 Ves. 63. But no relief is given in the case of a voluntary composition payable at a fixed period. Ambl. 332. See 1 Vern. 210. 2 Atk. 527. 3 Atk. 585. 16 Ves. 372. Equity will not relieve against the payment of stipulated, or, as they are sometimes called, liqui dated, damages, (2 Atk. 194. Finch, 117. 2 Cha. Ca. 198. 6 Bro. P. C. 470. 1 Cox. 27 2 Bos. & P. 346. 3 Atk. 395;) and forfeitures under acts of parliament, or conditions in law, which do not admit of compensation, or a forfeiture which may be considered as a limitation of an estate, which determines it when it happens, cannot be relieved against 1 Ball & Bat. 373, 478. 1 Stra. 447, 452. Prec. Ch. 574.
Mistake.—A defective conveyance to charitable uses is always aided, (1 Eden, 14. 2 Vern 755. Prec. Ch. 16. 2 Vern. 453. Hob. 136;) but neither a mistake in a fine (if after death of conusor) or in the names in a recovery is supplied, especially against a purchasor, (2 Vern. 3. Ambl. 102,) nor an erroneous recovery in the manorial court. 1 Vern. 367. Mistakes in a deed or contract, founded on good consideration, may be rectified. 1 Ves. 317. 2 Atk. 203. And if a bargain and sale be made and not enrolled within six months, equity will compel the vendor to make a good title by executing another bargain and sale which may be enrolled. 6 Ves. 745. A conveyance defective in form may be rectified, (1 Eq. Abr. 320. 1 P. W. 279,) even against assignees (2 Vern. 564. 1 Atk. 162. 4 Bro. C. C. 472) or against representatives. 1 Anst. 14. So defects in surrenders of copyhold, (2 Vern. 564. Salk. 449. 2 Vern. 151,) but not the omission of formalities required by act of parliament in conveyances. 5 Ves. 240. 3 Bro. C. C. 571. 13 Ves. 583. 15 Ves. 60. 6 Ves. 745. 11 Ves. 626. Defects in the mode of conveyance may be remedied. 4 Bro. C. C. 382. So the execution of powers. 2 P. Wms. 623.
2d. Account.—Mutual dealings and demands between parties, which are too complex to be accurately taken by trial at law, may be adjusted in equity, (1 Sch. & Lefroy, 309. 13 Ves. 278, 279. 1 Mad. Ch. 86, and note (i.);) but if the subject be matter of set-off at law, and capable of proof, a bill will not lie, (6 Ves. 136;) and the difficulty in adjusting the account constitutes no legal objection to an action. 5 Taunt. 481. 1 Marsh. 115. 2 Camp. 238.
3d. Fraud.—Equity has so great an abhorrence of fraud that it will set aside its own decrees if founded thereupon; and a bill lies to vacate letters-patent obtained by fraud 13 Vin. Abr. 543, pl. 9. 1 Vern. 277. All deceitful practices and artful devices contrary to the plain rules of common honesty are frauds at common law, and punishable there, but for some frauds or deceits there is no remedy at law, in which cases they are cognizable in equity as one of the chief branches of its original jurisdiction. 2 Ch. Ca. 103. Finch, 161. 2 P. Wms. 270. 2 Vern. 189. 2 Atk. 324. 3 P. Wms. 130. Bridg. Ind. tit. Fraud, pl. 1. Where a person is prevented by fraud from executing a deed, equity will regard it as already done. 1 Jac. & W. 99.
1. Trustees are in no case permitted to purchase from themselves the trust estate, (1 Vern. 465,) nor their solicitor, (3 Mer. 200;) nor in bankruptcy are the commissioners (6 Ves. 617) or assignees, (6 Ves. 627,) nor their solicitors, (10 Ves. 381;) nor committee or keeper of a lunatic, (13 Ves. 156,) nor an executor, (1 Ves. & B. 170. 1 Cox, 134,) nor governors of charities. 17 Ves. 500.
2dly. Attorney and Client.—Fraud in transactions between attorneys and client is guarded against most watchfully. 2 Ves. Jr. 201. 1 Mad. Ch. 114, 115, 116.
3dly. Heirs, Sailors, &c.—Equity will protect improvident heirs against agreements binding on their future expectancies negotiated during some temporary embarrassment, provided such agreement manifest great madequacy of consideration. 1 Vern. 169. 2 Vern. 27. 1 P. Wms. 310. 1 Bro. C. C. 1. 2 Ves. 157. It will also set aside unequal contracts obtained from sailors respecting their prize-money, (Newl. Cont. 443. 1 Wils 229. 2 Ves. 281, 516;) and the fourth section of 20 Geo. III. c. 24 declares all bargains, &c. concerning any share of a prize taken from any of his majesty’s enemies, &c. void. Vide Newl. Cont. 444.
4thly. Guardian.—Fraud between guardian and ward is also the subject of strict cognizance in the court of chancery. For the details under this head, see 1 book, ch. xvii. and notes.
5thly. Injunctions.—In a modern work the subject of injunctions is considered under the head of fraud, (see 1 Mad. Ch. 125;) but it seems to deserve a distinct consideration. An injunction is a method by which the court of chancery interferes to prevent the commission of fraud and mischief. The exercise of this authority may be obtained,—1st. To stay proceedings in other courts. 2d. To restrain infringements of patent. 3d. To stay waste. 4th. To preserve copyright. 5th. To restrain negotiation of bills, &c. or the transfer of stock. 6th. To prevent nuisances, and in most cases where the rights of others are invaded and the remedy by action at law is too remote to prevent increasing damage. See 1 Mad. Ch. 157 to 165. An injunction to stay proceedings at law does not extend to a distress for rent, (1 Jac. & W. 392;) nor has equity any jurisdiction to stop goods in transitu in any case; nor will the court restrain the sailing of a vessel for such purpose by injunction. 2 Jac. & W. 349.
6thly. Bills of Peace, which form an essential check on litigation. 1 Bro. P. C. 266. 2 Bro. P. C. 217. Bunb. 158. 1 P. Wms. 671. Prec. Cha. 262. 1 Stra. 404. For this purpose a perpetual injunction will be granted. See 10 Mod. 1. 1 Bro. P. C. 268. This bill cannot hold in disputes between two persons only. 2 Atk. 483, 391. 4 Bro. C. C. 157 Vin. tit. Ch. 425, pl. 35. 3 P. Wms. 156.
7thly. Bill of Interpleader will lie to prevent fraud or injustice, where two or more parties claim adversely to each other, from him in possession; otherwise it will not lie, (1 Mer. 405;) for in such case it is necessary the two claimants should settle their rights before the person holding possession be required to give up to either. 2 Ves. Jr. 310. Mitf. Pl. 39. 1 Mad. Ch. 173. And, on the same principle,
8thly. Bills or Writs of Certiorari, to remove a cause from an inferior or incompetent jurisdiction.
9thly. Bills to perpetuate testimony in danger of being lost before the right can be ascertained.
10thly. Bills to discover evidence in possession of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c. in defendant’s custody.
11thly. Bills of Quia Timet, for the purpose of preventing a possible future injury, and thereby quieting men’s minds and estates, &c. 1 Mad. Ch. 224. Newl. on Contr. 93, 493.
12thly. Bills for the dclivering up of Deeds.—As where an instrument is void at common law, as being against the policy of the law, it belongs to the jurisdiction of equity to order it to be delivered up. 11 Ves. 535. In Mayor, &c. of Colchester vs. Lowton, lord Eldon says, “My opinion has always been (differing from others) that a court of equity has jurisdiction and duty to order a void deed to be delivered up and placed with those whose property may be affected by it, if it remains in other hands.” 1 Ves. & B. 244.
13th. Bills for apportionment or contribution between persons standing in particular relations one to another. 5 Ves. 792. 2 Freem. 97.
14th. For dower and partition.
15th. To establish moduses.
16th. Bills to marshal securities.
17th. Bills to secure property in litigation in other courts. And
18th and lastly. Bills to compel lords of manors to hold courts, or to admit copy holders and bills to reverse erroneous judgments in copyhold courts. Vide 1 Madd. Ch. 242 to 253.
4th. Infants.—The protection and care which the court of chancery exercises over infants have already been incidentally noticed. Vide 1 book, chs. xvi. xvii. and notes.
Wards of Court.—To make a child a ward of court, it is sufficient to file a bill; and it is a contempt to marry a ward of court, though the infant’s father be living. Ambl. 301. The court of chancery, representing the king as parens patriæ, has jurisdiction to control the right of the father to the possession of his infant; but the court of King’s Bench has not any portion of that delegated authority. The court of chancery will restrain the father from removing his child, or doing any act towards removing it, out of the jurisdiction. So will the court refuse the possession of the child to its mother if she has withdrawn herself from her husband. 10 Ves. 52. Co. Litt. 89, (a.) n. 70. 2 Fonb. Tr. Eq. 224, n. (a.) 2 Bro. C. C. 499. 1 P. Wms. 705. 4 Bro. C. C. 101. 2 P. Wms. 102. The court retains its jurisdiction over the property of a ward of court after twenty-one, if it remains in court, and, if the ward marries, will order a proper settlement to be made, or reform an improper one, unless the ward consents to the settlement either in court or under a commission. 2 Sim. & Stu. 123, n. (a.) In case the husband assign the property of the wife, who is a ward of court, it shall not prevail, but the court will direct even the whole of the property in question to be settled on the wife and her children, and the assignee will not be entitled even to the arrear of interest accrued since the marriage, 3 Ves. 506.
5th. Specific Performance of Agreements.—The jurisdiction of the courts of equity in matters of this kind, though cortainly as ancient as the reign of Edward IV., did not obtain an unresisting and uniform acquiescence on the part of the public till many years afterwards. See 1 Roll. Rep. 354. 2 ib. 443. Latch. 172.
Realty.—Thus equity enforces agreements for the purchase of lands, or things which relate to realties, but not (generally) those which relato to personal chattels, as the sale of stock, corn, hops, &c.: in such cases the remedy is at law. 3 Atk. 383. Newl. Contr. 87.
That which is agreed to be done is in equity considered as already done, (2 P. Wms 222;) and therefore when a husband covenants on his marriage to make a settlement charged upon his lands, which he is afterwards prevented from completing by sudden death, the heir shall make satisfaction of the settlement out of the estate. Ib. 233.
Personalty.—In agreements, with penalties for the breach of them, it is necessary to distinguish the cases of a penalty intended as a security for a collateral object from those where the contract itself has assessed the damages which the party is to pay upon his doing or omitting to do the particular act. In these latter cases equity will not interfere either to prevent or to enforce the act in question, or to restrain the recovery of damages after they have become due; but in the former, where it plainly appears that the specific performance of that act was the primary object of the agreement, and the penalty intended merely to operate as a collateral security for its being done, though at law the party might make his election either to do the particular act or to pay the penalty, a court of equity will not permit him to exercise such right, but will compel him to perform the object of the agreement. Newl. Contr. cap. 17. Thus, as the principle whereon a specific performance of agreement relating to personals is refused is that there is as complete a remedy to be obtained at law, therefore, where a party sues merely on a memorandum of agreement, (a mere memorandum not being regarded as valid at law,) a court of equity will give relief; for equity suffers not a right to be without a remedy. 3 Atk. 382, 385. But it is only where the legal remedy is inadequate or defective that courts of equity interfere. 8 Ves. 163. Equity will not enforce an agreement for the transfer of stock, (10 Ves. 161;) but it has been held that a bill will lie for performance of agreement for purchase of government-stock where it prays for the delivery of the certificates which give the legal title to stock. 1 Sim. & Stu. 590. And it seems the court will entertain a suit for the specific performance of a contract for the purchase of a debt. 5 Price, 325. So to sell the good will of a trade and the exclusive use of a secret in dyeing, (1 Sim. & Stu. 74;) but not without great caution. See 1 P. Wms. 181.
6th. Trusts.—Trusts may be created of real or personal estate, and are either, 1st, Express; or, 2d, Implied. Under the head of implied trusts may be included all resulting trusts, and all such trusts as are not express. Express trusts are created by deed or will. Implied trusts arise in general by construction of law upon the acts or situation of parties. 1 Mad. Cha. 446.
Lunatics.—The custody of the persons and estates of lunatics was a power not originally in the crown, but was given to it by statute for the benefit of the subject. 1 Ridgw. P. C. 224; et vid. 2 Inst. 14. And now, by the statute de prerogativâ regis, (17 Edw. II. c. 9 & 10.) the king shall have the real estates of idiots to his own use, and he shall provide for the safe keeping of the real estates of lunatics, so that they shall have a competent maintenance, and the residue is to be kept for their use. 1 Ridgw. P. C. 519, 535. A liberal application of the property of a lunatic is made to secure every comfort his situation will admit, (6 Ves. 8,) without regard to expectants on estate. 1 Ves. Jr. 297. The power of the chancellor extends to making grants from time to time of the lunatic’s estate, and as this power is derived under the sign-manual, in virtue of the prerogative of the crown, the chancellor, who is usually invested with it, is responsible to the crown alone for the right exercise of it. Per Ld. Hardw., 3 Atk. 635. It is said that since the revolution the king has always granted the surplus profits of the estate of an idiot to some of his family Ridgw. P. C. 519, App. note, (1.)
Charities.—The general controlling power of the court over charities does not extend to a charity regulated by governors under a charter, unless they have also the management of the revenues and abuse their trust; which will not be presumed, but must be apparent and made out by evidence. 2 Ves. Jr. 42. The internal management of a charity is the exclusive subject of visitorial jurisdiction; but under a trust as to the revenue, abuse by misapplication is controlled in chancery. 2 Ves. & B. 134.
Executors.—Where an executor has an express legacy, the court of chancery looks upon him as a trustee with regard to the surplus, and will make him account, though the spiritual court has no such power. 1 P. Wms. 7. And where an executor, who was directed to lay out the testator’s personalty in the funds, unnecessarily sold out stock, kept large balances in his hand, and resisted payment of debts by false pretences of outstanding demands, he was charged with five per cent. interest and costs, but the court refused to make rests in the account. 1 Jac. & W. 586. And see, on this subject, ante, 2 book, ch. 32.
Marshalling Assets.—The testator’s whole personal property, whether devised or not, is assets both in law and equity, to which creditors by simple contract, or of any higher order, may have recourse for the satisfaction of their demands. But the testator may, by clear and explicit words, exempt his personalty from payment of debts as against the devisee of his realty, though not as against creditors. The rule in equity is, that in case even of a specialty debt the personal assets shall be first applied, and if deficient, and there be no devise for payment of debts, the heir shall then be charged for assets descended. 2 Atk. 426, 434. For lands are in equity a favoured fund, insomuch that the heir at law or devisee of a mortgagor may demand to have the estate mortgaged by such devisor himself, cleared out of the personalty. Vin. Abr. tit. Heir, U. pl. 35. 1 Atk. 487. And a specific devisee of a mortgaged estate is entitled to have it exonerated out of real assets descended. 3 Atk. 430, 439. But at law there is no such distinction of favour shown to lands: a bond-creditor may if he please proceed immediately against the heir without suing the personal representative of his deceased debtor. As to the order in which real assets shall be applied in equity for payment of debts, (after exhausting the personal effects, supposing them not exempted,) the general rule is, first to take lands devised simply for that purpose, then lands descended, and lastly estates specifically devised, even though they are generally charged with the payment of debts. 2 Bro. 263.
Equitable assets are such as at law cannot be reached by a creditor as a devise in trust to pay debts of an equity of redemption subject to a mortgage in fee, or where the descent is broken by a devise to sell for the payment of debts. 1 Vern. 411. 1 Ch. Ca. 128. n. 2 Atk. 290. But lands so devised, subject to a mortgage for years, are legal assets.
Bankruptcy.—See the consolidation act, (6 Geo. IV. c. 16,) commencing its operation with the present year, and the decisions applicable to its several enactments, ante, 2 book, ch. 31.—Chitty.
[(b) ] Page 50, &c.
[(c) ] F. N. B. 27.
[(d) ] Cro. Jac. 641. 2 Lev. 163. T. Jones. 90.
[(e) ] See book 1. ch. 8.
[(f) ] 3 P. Wms. 108. See Reg. Br. 267.
[2 ] By stat. 9 Geo. IV. c. 41, s. 41, all persons wheresoever in England (not keeping licensed houses, and not being relatives, or a committee appointed by the lord chancellor) receiving into their exclusive care and maintenance any insane person or persons, or represented or alleged to be insane, are required, under pain of misdemeanour, to have a certificate of insanity, an order for reception of every such person so received after 1st of August, 1828, and to transmit copies thereof within five days to the office of metropolitan commissioners in lunacy, to be marked “private return,” and also forthwith to give notice of the death or removal of any such person.
And by s. 36 of the same statute, the persons by whose authority any patient shall be delivered into the care of the keeper of any licensed house for the reception of the insane, are, under like pain, required in person, or by some other person appointed in writing under hand and seal, to visit such person once at least every six months during his confinement, and to enter, in the journal kept at such houses for registering the visits of the commissioners, the date of such visit.—Chitty.
The proceedings of the court of chancery in the exercise of this branch of its jurisdiction are now regulated by the statute 16 & 17 Vict. c. 70, called “The Lunacy Regulation Act, 1853.”—Kerr.
[(g) ] Duke’s Char. Uses, 62, 128. Corporation of Burford vs. Lenthal. Canc. 9 May, 1743.
[(h) ] 2 Vern. 118.
[3 ] The latest and most important piece of legislation on this subject is “The Charitable Trusts Act, 1853,” of which the professed object is to secure the due administration of charitable trusts, and in certain cases a more beneficial application of charitable funds than that previously in operation.—Kerr.
[4 ] The summary jurisdiction of the court of equity in cases of bankruptcy must be personally exercised by the chancellor, lord keeper, or the lords commissioners of the great seal. 2 Woodd. 400.—Christian.
But, by stat. 1 & 2 W. IV. c. 56, this jurisdiction was transferred to the court of bankruptcy.—Stewart.
[(i) ] Huggins vs. York Buildings’ Company, Canc. 24 Oct. 1740. Reeve vs. Attorney-General, Canc. 27 Nov. 1741. Lightboun vs. Attorney-General, Canc. 2 May, 1743.
[5 ] Where the rights of the crown are concerned, if they extend only to the superintendence of a public trust, as in the case of a charity, the king’s attorney-general may be made a party to sustain those rights; and, in other cases where the crown is not in possession, a title vested in it is not impeached, and its rights only incidentally concerned. It has generally been considered that the king’s attorney-general may be made a party in respect of those rights; and the practice has been accordingly. 1 P. Wms. 445. But where the crown is in possession, or any title is vested in it which the suit seeks to divest, or its rights are the immediate and sole object of the suit, the application must be to the king, by petition of right, (Reeve vs. Attorney-General, mentioned in Penn vs. Lord Baltimore, 1 Ves. 445, 446,) upon which, however, the crown may refer it to the chancellor to do right, and may direct that the attorney-general shall be made a party to a suit for that purpose. The queen has also the same prerogative. 2 Roll. Abr. 213. Mitf. Treat. on Pleadings in Chancery.—Christian.
[(k) ] Book 1. introd. 2, 3, ad calc.
[(l) ] Lord Kaims, Princ. of Equity, 44.
[(m) ] See book ii. ch. 23, p. 378.
[(n) ] Ibid. ch. 15, pages 243, 244; ch. 23, p. 377.
[(o) ] Ibid. ch. 14, p. 208.
[(p) ] Ibid. p. 227.
[(q) ] See page 300.
[(r) ]Ff. 40, 9, 12.
[(s) ] Lord Kaims, Princ. of Equity, 177.
[(t) ]De æquitate, 3.
[(u) ] 1 Roll. Abr. 374. 4 Inst. 84, 10. Mod. 1.
[(w) ] Book ii. ch. 20.
[(x) ] See page 163.
[(y) ] This is stated by Mr. Selden (Table-Talk, tit. Equity) with more pleasantry than truth. “For law we have a measure, and know what to trust to: equity is according to the conscience of him that is chancellor; and as that is larger and narrower, so is equity. ’Tis all one as if they should make the standard for the measure a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor’s conscience.”
[(z) ] 2 P. Wms. 640. See book ii. page 337.
[(a) ] Salk. 154.
[(b) ] 2 Vern. 289, 316. 3 Atk. 520.
[(c) ] See the case of Foster and Munt (1 Vern. 473) with regard to the undisposed residuum of personal estates.
[(d) ]Quæ in summis tribunalibus multi a legum canone decernunt judices, solus (si res exigerit) cohibet cancellarius ex arbitrio; nec aliter decretis tenetur suæ curiæ vel sui ipsius, quin, elucente nova ratione, recognoscat quæ voluerit, mutet et deleat prout suæ videbitur prudentiæ. Gloss. 108.
[(e) ] See pages 54, 55.
[(f) ]Archeion. 71, 72, 73.
[(g) ]Ubi supra.
[(h) ]De Augm. Scien. l. 8, c. 3.
[(i) ] See book ii. page 456.
[(j) ] 2 Keb. 553, 555. Salk. 597. 6 Mod. 11, 60, 101.
[(k) ] 2 Atk. 239.
[(l) ]De jure naturæ cogitare per not atque dicere debemus; de jure populi Romani, quæ relicta sunt et tradita. Cic. de leg. l. 3, ad calc.
[(m) ] See book i. page 253.
[(n) ] Ricord vs. Bettenham, Tr. 5 Geo. III. B. R.
[(o) ] See book i. page 75. Book ii. pages 459, 461, 467.
[(p) ] See book ii. page 513.
[(q) ] Ibid. 504.
[(r) ] Ibid. 463.
[(s) ] 1 Cha. Ca. 57.
[(t) ] 2 P. Wms. 145.
[(u) ] 2 Cha. Ca. 152.
[(w) ] 1 Eq. Ca. Abr. 367.
[(x) ] 2 Vern. 277.
[(y) ] Ibid. 638.
[(z) ] 2 Cha. Ca. 46.
[(a) ] 3 P. Wms. 148. Year-Book, 22 Edw. IV. 37, pl. 21.
[6 ] One material difference between a court of equity and a court of law as to the mode of proof is thus described by lord chancellor Eldon:—“A defendant in a court of equity has the protection arising from his own conscience in a degree in which the law does not affect to give him protection. If he positively, plainly, and precisely denies the assertion, and one witness only proves it as positively, clearly, and precisely as it is denied, and there is no circumstance attaching credit to the assertion, overbalancing the credit due to the denial as a positive denial, a court of equity will not act upon the testimony of that witness. Not so at law. There the defendant is not heard. One witness proves the case; and, however strongly the defendant may be inclined to deny it upon oath, there must be a recovery against him.” 6 Ves. Jr. 184.—Christian.
[7 ] It is not correct that where a court of equity will grant a commission to examine witnesses, whose attendance cannot be procured to give testimony in a court of common law, it will in such case also grant relief. For though it is very usual to file a bill praying a discovery, and that a commission may be issued to examine witnesses who live abroad, no doubt can be entertained that if the bill proceeded to pray relief, and that relief was such as a court of law was fully competent to administer, a demurrer to the bill would hold, unless it was a case where the courts exercise a concurrent jurisdiction.—Christian.
[(b) ] Eq. Ca. Abr. 16.
[(c) ] 3 P. Wms. 215.
[(d) ] 1 Cha. Rep. 14. 2 Cha. Ca. 32.
[(e) ] 1 Vern. 308. Prec. Cha. 261. 1 P. Wms. 672. Stra. 404.
[(f) ] 2 P. Wms. 156.
[(g) ] 1 Vern. 32. 1 P. Wms. 239.
[(h) ] 1 Vern. 237.
[(i) ] 2 Vern. 84.
[(k) ] 1 Eq. Ca. Abr. 337.
[(l) ] 2 P. Wms. 645, 668, 669.
[(m) ] See page 433.
[(n) ]Archeion. 71, 78.
[(o) ] 2 P. Wms. 685, 688.
[(p) ] See pages 54, 55, 56.
[(q) ] Gilb. of Ejectment, 2. 2 Bac. Abr. 160.
[(r) ] Bro. Abr. tit. tenant per copie. 10 Litt. 77.
[(s) ] See page 200.
[8 ] Very important alterations have been made in the whole process and proceedings in chancery by the statute 15 & 16 Vict. c. 86.—Sharswood.
[(s) ] Smith’s Commonw. b. ii. c. 12.
[(t) ] Stat. 14 & 15 Hen. VIII. c. 8.
[9 ] An injunction in the court of exchequer stays all further proceedings, in whatever stage the cause may be; but in chancery, if a declaration be delivered, the party may proceed to judgment notwithstanding an injunction, and execution is only stayed; but if no declaration has been delivered, all proceedings at law are restrained. 3 Wood. 411.—Christian.
[(u) ] Page 50.
[(v) ] 1 Vern. 421.
[(w) ] 18 Rym. Fœd. 195.
[10 ] If a demurrer be overruled, the defendant may at the hearing demur ore tenus, though not where he pleads to the bill. 1 Sim. & Stu. 227; et vid. Mitf. Pl, 178, et seq.—Chitty.
[(x) ]En cest court de chauncerie, home ne serra prejudice (illegible) son mispledging ou pur defaut de forme, mes solonque le veryte del mater, car il doit agarder solonque consciens, et nemi ex rigore juris. Dyveryte des courtes, edit. 1534, fol. 296, 297. Bro. Abr. tit. Jurisdiction, 50.
[11 ] And must bring the money (if any is due) into court, or at least offer to do so by his bill. Prac. Reg. 39. Bunb. 303. Bargard. Ch. 250. Mitf. Pl. 40.—Chitty.
[(y) ] Omichund vs. Barker, 1 Atk. 21.
[(z) ] On a trial at law, if the plaintiff reads any part of the defendant’s answer, he must read the whole of it; for by reading any of it he shows a reliance on the truth of the defendant’s testimony, and makes the whole of his answer evidence.
[12 ] It is not now the practice for the registrar to read the minutes of the decree openly in court; but any party to the suit may procure a copy of them, and, if there is any mistake, may move to have them amended. But after a decree has been drawn up and entered, no errors in it can be rectified on motion, or by any other proceeding than by rehearing the cause.—Christian.
[(a) ]Nota est sponsio judicialis: “spondesne quingentos si meus sit? spondeo si tuus sit. Et tu quoque spondesne quingentos, ni tuus sit? spondeo, ni meus sit.” Vide Heineo. Antiquitat, l. 3, t. 16, 3, and Sigon. de judicus, l. 21, p. 466, citat. ibid.
[13 ] The consent of the court ought also to be previously obtained; for a trial of a feigned issue without such consent is a contempt, which will authorize the court to order the proceedings to be stayed. 4 T. R. 402.—Chitty.
[14 ] Formerly, when a case was heard before the master of the rolls sitting in his own court, on which he wished to have the opinion of a court of law, he directed an action to be commenced by the parties in a court of law, in such a form that the question on which he had a doubt might be decided in that suit, and he suspended his decree till the court of law had given its judgment. It appears that the first case sent from the rolls to the King’s Bench is in 6 T. R. 313, where lord Kenyon says, “I believe that there is no instance in which this court ever certified their opinion on a case sent here from the master of the rolls. In Colson vs. Colson it was refused; but I think it was an idle formality, and I shall feel no reluctance in certifying in such cases, because I think it is convenient to the suitors of that court.”—Christian.
[(b) ] Stat. 3 Geo. III. c. 39. See p. 450.
[(c) ] Gilb. Rep. 151, 152.
[15 ] A bill of review is only necessary where a decree is signed and enrolled. Mitf. Pl. 71. It cannot be brought after twenty years. Id. 69. 1 Bro. P. C. 95. 5 Bro. P. C. 460 6 Bro. P. C. 395.—Chitty.
[(d) ] Com. Jour. 13 Mar. 1704.
[(e) ] Lords’ Jour. 23 Mar. 1620.
[(f) ] Ibid. 3, 11, 12 Dec. 1621.
[(g) ] Com. Jour. 19 Nov. 1675, &c.
[(h) ] Show. Parl. C. 81.
[(i) ] Duke’s Charitable Uses. 32.
[(k) ] [Editor: illegible character] Rep. 155, 156.