CH. XXVI. $7. Proceedings to obtain exemplified copy of de Chancery in Ireland.' For this purpose, a copy of the decree or order must be exemplified and certified to the Court of Chancery in Ireland, under the Great Seal of England. To procure the exemplification, a petition must be presented to the Lord Chancellor of England, stating the purpose for which the exemplification cree or order. is desired. The petition must then be left with the Secretary of the Lord Chancellor, and, when answered, taken to the order of course seat at the Registrar's office: when an order will be drawn up, in accordance with the prayer of the petition. The exemplification and docket must then be prepared by the solicitor, and the exemplification engrossed on parchment. Two of the Clerks of Records and Writs will then examine the exemplification with the entry of the original order, and sign their names to the exemplification, and to the certificate appended in the docket. The exemplification and docket are then transmitted by them to the purse bearer of the Lord Chancellor. The Great Seal will thereupon be affixed, and the signature of the Lord Chancellor procured. The exemplification, thus completed, may afterwards be obtained from the purse bearer by the party who has applied for it, upon payment of the proper fee, and is forwarded by such party to Ireland; and the Lord Chancellor there will, on presentation of the exemplification to him, cause it to be enrolled in the Court of Chancery in Ireland. Enforcing, in of England, a decree or order made cery of Ire Similar decrees and orders made by the Court of Chancery in the Chancery Ireland when duly exemplified and certified to the Court of Chancery of England, under the Great Seal of Ireland, and orders by the Chan- of the Landed Estates Court in Ireland, when duly certified under the seal of that Court, may be ordered to be enrolled in the Court of Chancery in England; and, when so enrolled, may be enforced by process of attachment and committal against the person of the disobedient party, in the same manner as if such decree or order had been originally made in the Court. of Chancery of England. land, or by the Landed Estates Court. Proceedings to enrol. An order to enrol a decree or order of the Irish Court will be made by the Lord Chancellor on motion or petition of course, supported by the production of a copy of the decree or order, exem 4 Braithwaite's Pr. 551. For orders in such case, see Bell v. Rees, and De Sorbien v. Bland, cited Seton, 1148. 5 The exemplification must bear a 31. Inland Revenue stamp, and the docket, and a certificate for the Record and Writ Clerk's signature, should be written on paper, continuously on one sheet, and bear a 28. like stamp. Braithwaite's Pr. 548, n. (b), 549, n. (a); 55 Geo. III. c. 184, Sched. Part 2; 15 & 16 Vic. c. 87, § 11. For forms of exemplification, docket, and indorsements, see Vol. III. 6 See Mackintosh v. Stewart, Dec., 1864. For form of certificate, see Vol. III. 7 The fee is 1. 1s., and is payable in money. It appears that the present practice is regulated, to some extent, by a letter from Lord Chancellor Chelmsford to the Clerks of Records and Writs. 8 41 Geo. III. c. 90, § 5. 9 41 Geo. III. c. 90, § 6; 21 & 22 Vic. c. 72, § 36; and see Pennefather . Short, 1 W. N. 102, L. JJ.; ib. 126, V. C. W. plified and certified under the Great Seal of Ireland.1 A docket CH. XXVI. of the enrolment must then be prepared and completed." Service upon the disobedient person of the decree or order, when enrolled in England, is not required; and if the decree or order directs an attachment to issue, it may be issued as soon as the enrolment is completed. If it does not direct an attachment to issue, an ex parte application must be made to the Lord Chancellor or Lords Justices, or one of the Vice-Chancellors, for leave to issue it. The Master of the Rolls does not appear to have any jurisdiction under these Acts." are Officers and attendants upon the Court, suitors and witnesses, are to have privilege eundo, redeundo, et morando, for their necessary attendance; but not otherwise; and where any of them arrested at such times of necessary attendance, it is a contempt of Court. A solicitor who is proceeding to the Court, to attend to his professional business there pending, is privileged from arrest; and the question in such cases is, whether, at the time of his arrest, he was bona fide proceeding in a direct line to or from the Court." The solicitor is also privileged if he is on his way to attend an appointment at the offices of the Court. If the first arrest is bad, all the detainers lodged under it are so. The application to discharge must be made to that Court of which the proceeding is a contempt. § 7. Attachment. Protection of suitors, and officers, witnesses, from arrest. Any one who uses violence or abusive language to a person Special conserving the process or orders of the Court, or uses scandalous or tempt. contemptuous words against the Court or the process thereof, is liable to be committed upon motion, on notice to the person so offending. It seems, that where the contempt is established by 10 1 Braithwaite's Pr. 478. For forms of order, see ibid.; Seton, 1148, No. 1; and for forms of motion paper and petition, see Vol. III.; and see Pennefather v. Short, 1 W. N. 102, L. JJ.; ib. 126, V. C. W. 2 Braithwaite's Pr. 479; ante, p. 1022. For forms of docket, see Vol. III. & Braithwaite's Pr. 189, 140, 176, 479; Seton, 1145, 1148; Re Keogh, 5 De G., M. & G. 73. 4 Re Scott, 12 Beav. 361. 5 Ord. XLII. 1; see, as to barristers, Anon., 1 Y. & C. Ex. 331; as to solicitors, Ex parte Ledwich, 8 Ves. 598; Gascoygne's Case, 14 Ves. 183; Castle's Case, 16 Ves. 412; Attorney-General v. Leathersellers' Company, 7 Beav. 157; Jones v. Rose, 11 Jur. 379, L. C.; Eyre v. Barrow, 4 Jur. N. S. 652; 6 W. R. 767, V. C. S.; Re Jewitt, 10 Jur. N. S. 814; 12 W. R. 945, M. R.; 33 Beav. 559, from which it appears that the solicitor was on his way to attend the Chambers of the Common Law Judges. See Dodd v. Holbrook, 11 Jur. N. S. 969; 12 ib. 19; 14 W. R. 125, V. C. S., as to suitors and witnesses: Moore v. Booth, 3 Ves. 350; Ex parte 6 Per Lord Langdale, in Attorney- 7 Eyre v. Barrow, and Re Jewitt, ubi sup.; and see Moore v. Booth, ubi sup. 8 Ex parte Led wich, ubi sup. ; and see Hooper v. Lane, 6 H. L. Ca. 443; 3 Jur. N. S. 1026. 9 List's Case, and Newton v. Askew, ubi sup. ; and see Eyre v. Barrow, ubi sup.; but see Dodd v. Holbrook, ubi supra. 10 Ord. XLII. 2; see Anon., 2 Atk. 471; CH. XXVI, $7. one witness only, an ex parte motion for an order nisi should be made in the first instance: in other cases, notice of motion should be given.1 Anon., 2 Ves. S. 520; Van v. Price, 1 S. 62; 12 W. R. 241, V. C. K. Privilege of Parliament is no protection. Wellesley's Case, and Lechmere Charlton's Case, ubi sup. 1 See Anon., 3 Atk. 219; Elliot v. Halmarack, 1 Mer. 302; Seton, 1239. For forms of order discharging a special contempt, see Seton, 1237; and for forms of motion paper and notice of motion, see Vol. III. CHAPTER XXVII. TRIALS OF QUESTIONS OF FACT, AND ASSESSMENTS OF DAMAGES. SECTION I. In what cases directed. tice: Court must deter mine every question of law and fact incident to sought. the relief Ir was formerly the practice of the Court, in certain cases where Former praclegal rights were involved, or where there was great difficulty in tice. deciding upon facts, to give the parties leave to bring an action, or to direct an issue to be tried by a jury, in a Court of Common Law. But now, whenever any relief or remedy within the juris- Present pracdiction of the Court of Chancery is sought in any cause or matter, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact, cognizable in a Court of Common Law, on the determination of which the title to such relief or remedy depends, is to be determined by or before the Court of Chancery, with or without a special or common jury: except that, whenever it appears to the Court that any question of fact may, under the circumstances of the particular case, be more conveniently tried by a jury at the Assizes, or at any Sitting in London or Middlesex for the trial of issues in the Superior Courts of Common Law, the Court may direct an issue, whereby any such question may be so tried.1 If, however, the object of the suit in Equity is to recover or defend the possession of land under a legal title, or under a title Relief which 1 25 & 26 Vic. c. 42, §§ 1, 2; 21 & 22 Vic. c. 27, §§ 3, 6; Baylis v. Watkins, 8 Jur. N. S 1165, L. JJ.; Egmont v. Darell, 1 H. & M. 563; Eaden v. Firth, ib. 573; Young v. Fernie, 1 De G., J. & S. 353; 10 Jur. N. S. 58; Re Catholic Publishing and Bookselling Company, 10 Jur. N. S. 192; 12 W. R. 455, M. R.; 2 De G., J. & S. 116; 10 Jur. N. S. 301, L. JJ.; Williams v. Williams, 33 Beav. 306; Cowgill v. Rhodes, ib. 310; Freeman v. Tottenham and Hampstead Railway Company, 11 Jur. N. S. 254, V. C. S.; ib. 254, L. JJ., 13 W. R. 1004; and see Curlewis v. Carter, 9 Jur. N. S. 1148; 12 W. R. 97, V. C. S.; Copeland v. Webb, 1 N. R. 119, V. C. K.; Davenport v. Jepson, ib. 173, L. JJ.; Johnson v. Wyatt, 2 De G., J. & S. 18; 9 Jur. N. S. 1333; Davenport v. Goldberg, 2 H. & M. 282; Fernie v. Young, L. R. 1 H. L. 63; 12 Jur. N. S. 437; Jenner v. But where questions of fact may be more conven iently tried at assizes, or nisi prius, issue may be directed. may be given, where object of suit is to recover or § 1. defend pos session of land, under a legal title. CH. XXVII. which would have been legal but for some outstanding term, lease, or mortgage (and whether mesne profits or damages are or are not sought in such suit), such relief only is to be given in Equity as would have been proper according to the former rules and practice of the Court; and it is not incumbent on the Court to grant relief in any suit concerning any matter as to which a Court of Common Law has concurrent jurisdiction, if it appears to the Court that such matter has been improperly brought into Equity, and that the same ought to have been left to the sole determination of a Court of Common Law.1 Where Court of Law has concurrent jurisdiction. In what cases Court will now direct a question of fact to be tried. Cases in which the Court formerly required the legal title to be established by an action, before granting equitable relief. Cases in which the Court formerly di rected an issue: where evi dence contradictory; It seems that the Court will now direct a question of fact to be tried before itself, or a Court of Common Law, only in those cases in which it would formerly have given the parties leave to bring an action at Law, or would have directed an issue. It is necessary, therefore, to consider the rules which regulated the practice of the Court in this respect. Whenever the equitable title of the plaintiff depended upon his legal title, and the latter was disputed, it was formerly the practice to require him to establish his legal title by an action, before granting any equitable relief. Cases of this kind occur most frequently where the Court is asked to restrain the commission of acts which are injurious to the legal title; and will, therefore, be more appropriately discussed in the Chapter on Injunctions. 4 Where there was contradictory evidence between persons of equal credit, who had equal opportunities of information, and the evidence was so equally balanced on both sides, that it became doubtful which scale preponderated, an issue was in general directed, in order that the Court might be satisfied, by the verdict of a jury, of the truth or falsehood of the facts controverted; but 1 25 & 26 Vic. c. 42, § 4; Swaine v. Great Northern Railway Company, 10 Jur. N. S. 191; 12 W. R. 391, L. JJ.; 9 Jur. N. S. 1196, V. C. W.; and see Clarkson v. Edge, 10 Jur. N. S. 871; 12 W. R. 518, M. R; Durell v. Pritchard, L. R. 1 Ch. Ap. 244 L. JJ.; S. C. nom. Darrell v Pritchard, 12 Jur. N. S. 16; Robson v. Whittingham, L. R. 1 Ch. Ap. 442; 12 Jur. N. S. 40, L. JJ. In such case, the bill will be dismissed without prejudice to the right to an action at Law. Robson v. Whittingham, ubi supra; see Jenner v. Jenner, L. R. 1 Eq. 361, 368. 2 See George v. Whitmore, 26 Beav. 557; Bradley v. Beavington, 4 Drew. 511; 5 Jur. N. S. 562; Morrison v. Barrow, 1 De G., F. & J. 633, 639; Peters v. Rule, 5 Jur. N. S. 61; 7 W. R. 171, V. C. W.; Egmont v. Darell, 1 H. & M. 563; Eaden v. Firth, ib. 573; and see Davenport v. Goldberg, 2 H. & M. 282; 25 & 26 Vic. c. 42, § 3. An issue is sent from a Court of Equity to be tried before a Court of Law, to aid the Court of Equity in the ascertainment of facts. An action is ordered to be tried in a Court of Law when the equity is based on a strictly legal right. Fisher v. Carroll, 1 Jones (Law), N. C. 27; see Decker v. Caskey, Saxton (N. J.), 427. 3 See post, Chap. XXXVI., Injunctions. 4 See O'Brien v. Bowes, 4 Bosw. (N. Y.) 657. 52 Mad. Pr. 476, 2d ed.; 621, 3d ed.; Stokes v. Edmeades, 1 M'Cl. & Y. 436; and see ante, pp. 947, 948; Tappan v. Evans, 11 N. H. 131. In the case last cited, Parker C. J. said: "In a controversy about matter of fact, the Court of Chancery, if it have jurisdiction, may direct an issue, to try the fact by a jury; although a verdict is not, perhaps, indispensable, and the Court might itself find the fact. The Court directs an issue for the better information of its conscience. If fully satisfied as to the evidence, they will not send it to a trial at Law. Issues are frequently directed when matters of law are mixed with matters of |