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same parties or those claiming under them (e). And with a view to extend the application of so convenient and important a remedy, it is now lately enacted by the 5 & 6 Vict. c. 69, that any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity or office; or to any estate or interest in any property real or personal; the right or claim to which cannot by him be brought to trial before the happening of such event,-shall be entitled to file a bill in the High Court of Chancery, to perpetuate any testimony which may be material for establishing such claim or right (f).
These are the principal, (for we must pass by the minuter points,) of the jurisdiction at present exercised in our courts of equity: [which differs, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived at 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 (g); and which were 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 had imperceptibly shifted its channel. Lambard, in particular, in the reign of Queen Elizabeth, lays it down (h), that
equity should not be appealed unto but only in rare and “ extraordinary matters; and that a good chancellor will
(e) This is most frequent when lands are devised by will, away from the heir at law; and the devisee institutes a suit to perpetuate the testimony of the witnesses to the will. This is what is usually meant by proving a will in Chancery. (3 Bl. Com. 450.)
(f) As to the practice in such suits, see Consol. Gen. Ord. 1860, ix.
rr. 6, 7; xix. Gen. Ord. 5th Feb.
(8) Vide sup. p. 27.
[“ 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. would have become too arbitrary, to have been endured in a country like this; 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 who have successively held the Great Seal, have by degrees erected the system of relief administered by a court of equity into a regular 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 or suit, as readily and with as much precision, in a court of equity, as in a court of law.
It would carry us beyond the bounds of our present purpose to go further into this matter. It seemed desirable 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 us an opportunity to vindicate, on the one hand, the justice of our courts 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.
III. It is now high time to proceed to the practice of our courts of equity thus explained and thus understood;] and in our remarks on this subject, -omitting all inferior jurisdictions,—we shall confine ourselves to the superior court, viz. the High Court of Chancery, held before the Lord Chancellor ; with its branches, of which the Master of the Rolls and the Vice-chancellors are respectively the judges (i).
According to the present system of practice-comprising great improvements recently introduced by the provisions of various acts of parliament, and the General Orders of the court founded thereon (k),[the first commencement of a suit in chancery,] which is analogous to an action in the common law courts, [is by preferring a bill (l) to the Lord Chancellor in the style of a petition : “humbly complaining, showeth unto his lordship A. B. &c., the above-named plaintiff, as follows:-&c.” (m). This bill is in the nature
(i) As to the High Court of Chancery, vide sup. vol. 111. pp. 414
(k) See the statutes cited, sup. vol. II. p. 425, n. (2), et sup. p. 41. See also vol. 1. pp. 258, 263, 272, 285, 484, 640, n., as to the jurisdiction recently conferred on this court in dealing with settled estates. As to the General Orders in Chancery (which were formerly extremely numerous), these have been recently consolidated into a single set, abrogating (with certain exceptions) as from the 14th Feb. 1860, all theretofore made. Since the promulgation of these Consolidated Orders additional ones have been issued, bearing date 6th March, 1860; 20th
March, 1860; 1st Feb. 1861; 5th Feb. 1861 ; 13th July, 1861 ; 16th August, 1861 ; 1st January, 1862; 16th May, 1862. There are, besides, sets of regulations of 8th August, 1857, as to business in chambers, and of 15th March, 1860, as to business in the Registrar's offices.
(1) It may be here observed that by 15 & 16 Vict. c. 86, parties seeking equitable relief were, in some cases, allowed to file a claim instead of a bill. But this mode of proceeding is now abolished. (See Consol. Gen. Ord. vii.i, r. 4.)
(m) See the form of a bill referred to in Consol. Gen. Ord. ix., r. 2, contained in sched. A. annexed to the Orders. As to the proper par
[of a declaration at common law, or a libel and allegation in the spiritual courts (n); setting forth the circumstances of the case, as some fraud, trust or hardship; and praying relief, as the case may require(o). And if the object of the bill be to stay waste or other injury, or to stay proceedings at law, an injunction is also prayed (p).
The bill must be signed by counsel, as a certificate of its decency and propriety (9).] For neither the bill nor any other pleading must contain scandalous or impertinent matter, the costs occasioned by which will be ordered to be paid by the party introducing the same (r); and matter of a scandalous kind will be also ordered to be expunged (s).
The bill—which must be printed (t)-has also subscribed to it the names of the several defendants, and the name and place of abode of the plaintiff's solicitor. And it is filed in court (u), and served on the defendant by deliver
ties to a suit, and objections in reference to want of parties, &c., new regulations were made by 15 & 16 Vict. c. 86, ss. 42, 43, 44, 49, 51, 52; and see Consol. Gen. Orders, vii. As to motion or application without bill, vide post, p. 65.
(n) Vide sup. vol. 111. p. 450.
(0) See South Eastern Railway Company v. Submarine Electric Company, 23 L. J., Ch. 183 ; Hill v. The Great Northern Railway Company, 5 De G. M. & G. 66. Though the bill usually prays some equitable relief, yet by 15 & 16 Vict. c. 86, s. 50, no suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby; and it shall be lawful for the court to make binding declara. tions of right, without granting consequential relief.
(P) See Wood v. Beadell, 3 Sim. 273.
(9) See Consol. Gen. Ord. viii., ix.,
r. 2, et sched. A. As to amending bill, ibid. r. 8 et seq.
(r) See Consol. Gen. Ord. xl., r. 10, 11.
(s) See ib. xvi., r. 21. Formerly bills or other pleadings might be excepted to for impertinence as well as for scandal. But exceptions for impertinence, are now abolished by 15 & 16 Vict. c. 86, s. 17.
(1) Consol. Gen. Ord. ix. Where, however, the bill prays a writ of injunction, or a writ ne ereat regno ; or is filed for the purpose solely, (or inter alia,) of making an infant a ward of the court;-a written copy may be filed in the first instance, on the personal undertaking of the plaintiff, or his solicitor, to file a printed copy within fourteen days. (15 & 16 Vict. c. 86, s. 6.)
(u) Filing is now performed by the clerks of records and writs. (5 & 6 Vict. c. 103 ; 15 & 16 Vict. c. 86, s. 1; Consol. Ord. viii.) By Ord. vi. every bill before being filed (15 & 16 Vict. c. 86, ss. 2, 3.) Where must be marked (at the option of no account, payment, conveyance or the plaintiff) either with the words other direct relief is sought against “ lord chancellor" or the words a party to a suit, the endorsement “master of the rolls ;” and where requiring such party to appear need the bill is marked “lord chancellor,” not be made. (Consol. Gen. Ord. the plaintiff shall also write under- X., r. 11.) neath, the name of one of the vice- (2) Consol. Gen. Ord. x., r. 3. It chancellors for the time being; and will be remembered that the same the cause shall thenceforth be at- period for appearance is given to tached to the court of the master of the defendant in an action on being the rolls or of such vice-chancellor, served with a writ of summons. as the case may be.
ing a copy thereof either to himself personally, or leaving the same at his dwelling-house (x). And on the bill so served there is an indorsement, commanding the defendant to appear within eight days after the service, and that he observe what the court shall direct (y).
If the defendant, on service of the bill, should neglect to appear within the time limited by the rules of the court,i. e., when he is within the jurisdiction of the court, within eight days after service (2)—the plaintiff may apply that an appearance may be entered for him ; and such further proceedings may be had in the cause as if defendant had actually appeared (a).
If, on the other hand, the defendant absconds, so that it is found impracticable to serve the bill, the court may order an appearance at a certain day, a copy of which order shall be inserted in the London Gazette, and otherwise published as the court may direct; and if the defendant should fail to appear at the time so appointed, the court may order an appearance to be entered for him on the application of the plaintiff(6). In cases also where the
(Vide sup. vol. 111. p. 586.) (x) 15 & 16 Vict. c. 86, s. 5; (a) 15 & 16 Vict. c. 86, s. 4. See Consol. Gen. Ord. x.
Consol. Ord. x., rr. 3, 4. See also (y) 15 & 16 Vict. c. 86, s. 3, and Ord. xxii. schedule to the Act. This service of (6) 15 & 16 Vict. c. 86, s. 4; the bill, with an indorsement, is in Consol. Ord. X., r. 6. See also 11 lieu of the former practice of serving Geo. 4 & 1 Will. 4, c. 36, s. 3. a writ of subpæna, which is abolished.