tors of the court and their solicitors are to have access to the said book, during office hours, without the payment of any fee; and for every such order so to be made as aforesaid, there is to be paid the same fees as have hitherto been payable in respect of such petitions as aforesaid, in lieu of the fees on such petitions. And there is to be also paid to the chief secretary, for filing every such petition, the sum of one shilling; and to the under-secretary, for entering every such order, the sum of sixpence. And every such order so to be made as aforesaid, is to have the same force and effect as orders of course passed by the registrars now have, and without the payment of the fees heretofore payable on such orders at the Registrar's office; and for every office copy that may be required of any such order, there shall be paid to the chief secretary (who shall mark the same as examined, and authenticate it by affixing his initials thereto) the sum of sixpence, and no more, for making the same.

[ *57 ]

SECRETARY of causes at the rolls.

The duties of this officer are, to set down causes for hearing befere the Master of the Rolls, and to draw and sign a note to the Registrar, certifying to him the name of every cause to set down; to peruse, present to his Honour and write the order upon all petitions of the following kind, viz. For setting down of causes, to have bills taken pro confesso; and for setting down of causes at the request of the defendant, and for restoring to the paper, causes which have been struck out thereof; also to write the order on petitions for rehearing; and for setting down of causes upon a Master's report upon an equity reserved, and for further directions; and also on petitions for adjourning of causes.(1)

SECRETARY OF DECREES AND INJUNCTIONS AT THE ROLLS.

The duty of this officer is, to present to the Master of the Rolls the docquet of every decree or dismission pronounced by his Honour, to be signed by him, in order for the enrolment thereof: to enter the name of the cause in

(1) Chan. Com. Reps. 155.

which such decree or dismission is pronounced, the date of the decree or dismission, and the time of such signing the docquet, in a book kept by him for that purpose; also to enter therein the docquet of every injunction granted by his Honour, and present the same to his Honour for signature; to set down in the same book all caveats that shall be desired to be entered against his Honour's signing any decree or dismission, and to give notice thereof to the parties concerned; and to attend his Honour when any of such business is to be transacted.(1)

Keeper of the RECORDS IN THE ROLLS CHAPEL. [ *58

The duty of this officer is, to take care of the records in the chapel at the Rolls; to make annual indexes or calendars of them, as they are brought to the chapel; to attend and produce such indexes and records to those who are desirous of making searches, or of reading the records themselves; to make copies and exemplifications of the same when required; to attend the two Houses of Parliament or their committees, and the Courts of Judicature, with the records, when required; to attend the Master of the Rolls on cancellations of records of recognizances, deeds and letters patent.(2)

SECRETARY TO THE VICE CHANCELLOR OF ENGLAND.

The duty of this officer is to attend on the Vice Chancellor of England, at all times whenever he sits in court, both in term time and at his sittings after term.(3)

(1) Chan. Com. Rep. 157.

(2) Id. 158.

5

VOL. I.

(3) Id. 164.

CHAPTER III.

THE BUSINESS OF THE COURT.[a]

Business of the Court, 59. Sittings of the Judges, 59. Time of their Sittings, 59. Books of Causes set down for hearing, 59.

THE three Judges sit in Westminster Hall every day in term, Sundays and holidays excepted; and during the sittings after term the Lord Chancellor and Vice Chancellor sit in their respective courts in Lincoln's Inn Hall; and the Master of the Rolls at his Court in Rolls Yard.

The usual hours of sitting vary from ten o'clock in the morning until from three to five o'clock in the afternoon.

Immediately after and before each term, the Court usually takes a short recess, and about the middle of August adjourns for the long vacation, which lasts till the beginning of November.

There are no fixed days for hearing particular branches of the business of the Court, but at the commencement of every sitting each Court issues a seal paper detailing the plan of disposing of business for each day.

The mode in which the business of the Court is presented for hearing, may be either in the shape of original causes, pleas, demurrers, petitions, motions, further directions, exceptions, rehearings, and appeals, all of which will be treated of under their proper head.

Two books are made out every term, and constantly open for inspection, at the Register Office; one containing *60] the causes, &c., set down for hearing before the Lord Chancellor and Vice Chancellor, and called the Court book; and the other containing the causes before the Master of the Rolls.

From these books the causes, &c., are placed in succession in the daily paper.

Neither petitions nor motions are set down in these

[a) This chapter, like the last, is exclusively local in its character, and cannot with convenience or usefulness be adapted to the routine of business of the various Courts of Equity in this country. The student is referred, on this head, to the statutes of the various states, as well as of the United States, and to the rules of practice of the various courts exercising chancery jurisdiction.

books; the former being set down with the Secretary of the Lord Chancellor, or of the Master of the Rolls, for certain days specially appointed, and the latter being moved in court on seal days, according to the seniority of counsel, and sometimes in order of date.

The manner in which the business of the Court is presented for hearing will be necessarily considered in its proper order, excepting as to motions and petitions, of which it will be necessary to say a few words before treating of the regular proceedings of a suit.

*CHAPTER IV.

[ *61 ]

MOTIONS.

Motion can

By whom motions heard, 61. What applications made by motions, 61. not be made by a party in contempt, 62. Nor if costs of a former motion remain unpaid, 62. Motions divided into motions as of course, and special motions, 62. Motions as of course, 62. Special motion's, 64. Notice of motions, when required and how framed, 64. Service of notice of motion, 65. Brief on a motion, 65. Number of counsel to be employed, 66. If the motion cannot be made on the day fixed in the notice, 66. How motions brought on and heard, 66. What affidavits read on motions, 66. If no counsel appear, 66. Costs of abandoned motions, 67.

ALL the three Judges who preside over the Court of Chancery now entertain applications made to them in the form of motions, and it is in the option of a party giving a notice of motion to select before which of these Judges the same shall be made. Prior to the passing of 3 & 4 Wm. 4, it was not the habit of a Master of the Rolls to hear motions; but by that act the Master of the Rolls is required to hear and determine motions duly made before him.

Before a cause is ripe for hearing, and during the whole progress of a suit, the Court will entertain certain interlocutory applications presented to its consideration either in the shape of a motion or of a petition; thus, pending a litigation, the Court will on motion secure the fund by ordering the same to be paid into court; will appoint a receiver to collect the rents of real estate, or restrain one party from doing any act injurious to another party by *awarding a writ of injunction. The Court, in [ 62 ]

granting applications of this nature, exercises its discretion not only on merits, but also according to the stage of the different proceedings. Thus some motions may be made immediately after the bill has been filed, others after the appearance or answer of the defendant, and so on, during the different stages of a cause; but the Court will not on motion decide the merits of a suit, nor make an order the object of which involves the principal point in the cause ;(1) neither will the Court on motion enforce an agreement to compromise a suit privately come to by the parties out of Court, and afterwards disregarded, but which has not been made an order of Court.(2)

A party in contempt cannot make a motion, (nor can he take any step,) until he has cleared his contempt, unless the motion or other proceeding has relation to an irregularity in the contempt.[a] If a motion has been dismiss

(1) Like v. Beresford, 3 Bro. C. C. 365. (2) Forsyth v. Manton, 5 Madd. 78.

[a] A plaintiff, in contempt for non-payment of costs for an irregular motion, can enforce an answer from the defendant. Bates v. Wilson, 2 Lond. Jurist, 107; S..C. affirmed, Ibid. 319. S. C. 3 Myl. & Cr. 197; 9 Sim. 54. (In this case Mr. Knight Bruce, now one of the Vice Chancellors of England, contended that the rule applied only to parties applying for the indulgence of the Court.) So, a party, against whom an attachment has issued for disobedience of an order, may, notwithstanding the attach. ment, move to discharge the order, Brown v. Newall, 2 Myl. & Cr. 558, or to set aside the attachment. Hawkins v. Hall, 1 Beavan, 73. King v. Briant, 2 Lond. Jurist, 106, 3 Myl. & Cr. 191; Howard v. Newman, 1 Moll. 221. So, a plaintiff, in contempt, may compel the production of deeds and documents relating to the matters in issue, and admitted by the answer of the defendant to be in his possession. Plumbe v. Plumbe, 3 You. & Coll. 622.

And in New York, it has been held, that where a party is in contempt, the Court will not grant an application in his favour, which is not a matter of strict right. And if he apply to the Court for a favour, it will only be granted on condition that he purge his contempt, by complying with the former order of the Court. Johnson v. Pinney, 1 Paige, 646; Rogers v. Paterson, 4 Paige, 450. So also, an objection that the defendant is in contempt is not a sufficient answer to an application that the complainant elect whether he will proceed in this court or in a court of law for the same cause. It is only where the party in contempt applies for a favour, that such an objection is available. The granting of an application that the complainant elect, is a matter of right, and not of mere favour. Akroyd v. Klug, in Chan. N. Y., May 4, 1841; to be reported in 8 Paige.

So, in Virginia, where a defendant is in contempt, no plea or demurrer can be admit ted, but upon motion in open court. Lane v. Ellzey, 4 Hen. & Munf. 504.

So, in Indiana, a complainant may, on payment of costs, dismiss his bill at any time before a final hearing, provided he be not in contempt. Smith v. Smith, 2 Blackf. 232. Where a defendant had been in contempt for want of an answer, through the mistake of the warden of the Fleet in refusing to take the answer, the Court ordered that the costs of the contempt should be costs in the cause; and on failure of the plaintiff to take exceptions to the answer within a limited time, that the defendant should be discharged. Reymer v. Gunstone, 2 You. & Coll. 584; see also, Taylor v. Salmon, 3 Myl. & Cr. 109; S. C. 8 Sim. 449, (11 Eng. Chan. Rep. 517.)

If an attachment have regularly issued against a defendant, for want of an answer, be cannot file a demurrer and answer, although the former be confined to an allegation which the defendant might, by answer, have insisted he was not bound to answer. Vigers v. Lord Audley, 8 Sin. 333, (11 Eng. Chan. Rep. 464.)

A defendant, in custody for want of an answer of himself and wife, cannot clear his