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thereof, on payment of a regulated fee (a). As to the proof so taken, we need only add, that the rules as to the competency of witnesses, and generally the whole law of evidence, are the same as those which obtain in a court of common law, and to which our attention was called in a former part of the work (b).

The evidence (however taken) must be closed within a certain period, limited by the practice of the court(c); and the cause is then ripe to be set down for hearing(d); [and either party may be subpænaed to hear judgment on the day fixed for the hearing; and then, if the plaintiff does not attend, his bill is dismissed with cos On the other hand, if the defendant makes a default, a decree will be made against him (e).

[When there are cross causes, or a cross bill filed 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

(a) All affidavits and depositions (c) Consol. Gen. Ord. xix.; Gen. used at the hearing, are required to Ord. 5th Feb. (1861), r. 5. be printed. (Gen. Ord. 16th May, (d) The hearing may be before 1862.) The course of taking proof either the master of the rolls or one above described was substituted by of the vice-chancellors, according to Gen. Ord. 5th Feb. 1861, (see 23 the court which has been selected, & 24 Vict. c. 128,) for that pre- or it may take place, if so ordered, scribed by 15 & 16 Vict. c. 86, under before the lord chancellor himself, which all the parties might be (at Within four weeks after the evithe option of any of them) publicly dence is closed, the plaintiff is examined, cross-examined, and re- required to set down the cause examined before the examiner-a hearing and obtain and serve on course which, by agreement, may still the defendant a subpæna to hear be adopted. (Gen. Ord. 3rd Feb. judgment. After the expiration of 1861, r. 10.) Prior to the 15 & 16 that time, the cause may be brought Vict. c. 86, the course of proof was on by the defendant. (See Consol. by the examination of the witnesses Gen. Ord. xxi.) before commissioners, taking their (e) By Consol. Gen. Ord. xxiii., written depositions in answer r. 12, where a defendant makes dewritten interrogatories, and in the fault at the bearing of a cause, the absence of the parties, according to decree shall be absolute in the first the method of the civil law.

instance, without giving the defen(6) Vide sup. vol. 111. pp. 639 et dant a day to show cause. seq.

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[them. The method of hearing causes in court is this. ] The parties on both sides appearing by their counsel, the plaintiff's counsel open the pleadings and state his case, the matters in issue, and the points of equity arising therefrom. They also read in court such affidavits and depositions as may have been taken by the plaintiff, together with such parts of the defendant's answer as are thought material or convenient, and make their observations and arguments thereon. Then the defendant's counsel go through the same process for him, and the leading counsel for the plaintiff is heard in reply. [When all are heard, the court pronounces the decree, adjusting every point in debate according to equity ; which decree being usually very long, the minutes of it are taken down by the Registrar. 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 stat. 17 Ric. II. c. 6,) according to the circumstances of the case, as they appear more or less favourable to the party vanquished. And yet the stat. 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 (f).

The 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 usually directs the matter to be tried by jury; especially such facts as the validity of a will, or whether A. is the heir at law to B.] This was formerly (as no jury could then be summoned to attend this court,) always directed to be tried in a court of common law, and in the form of a feigned issue ; that is, a series of pleadings was arranged between the parties, in the same form as if an action had been commenced at common law, upon a wager involving the fact in dispute ; and the issue

(f) As to equity costs generally, see Seton on Decrees, p. 90, 3rd ed.; Dan. Chan. Pr. pp. 1027 et

seq. As to the practice on taxing costs, &c., see Consol. Gen. Ord. xl.

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joined thereon was referred, (as it would be in the case of an ordinary action,) to a jury. But feigned issues were disused after the 8 & 9 Vict. c. 109, s. 19, which made it lawful for any court either of law or equity to refer any question of fact to a jury in a direct form. And by 21 & 22 Vict. c. 27, ss. 3—6, provisions were made enabling the Court of Chancery itself to summon a jury to try any questions of fact (g). Moreover, it was formerly the practice to refer questions of law to the opinion of one of the superior courts of common law, who, after argument, certified their opinion to the Lord Chancellor, and on such certificate the decree was usually founded. But by 15 & 16 Vict. c. 86, s. 61, the practice of directing a case to be stated for the opinion of a common law court was prohibited, power being, at the same time, given to the Court of Chancery to determine any questions of law necessary to the decision of the equitable question at issue (h). And now, by 25 & 26 Vict. c. 42, it is further enacted, that in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery, shall be sought in any cause or matter pending there, and whether the title to such relief or remedy be or be not incident to or depending 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, shall be determined in the Court of Chancery. It is, however, provided that if such course appears more convenient, any question of fact may be directed to be tried at the assizes or sittings for London or Middlesex; and that nothing in that Act shall make it necessary for a court of equity to grant relief in any suit concerning any matter as to which a court of common law has concurrent jurisdiction, if it shall appear to the court that such matter

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(8) See Consol. Gen. Ord. xli., r.

26 et seq.

upon the request of the lord chancellor, the presence of one of the common law judges at the sitting of the court.

(h) By 14 & 15 Vict. c. 83, s. 8, provisions are made for obtaining,

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has been improperly brought into equity, and ought to have been left to the sole determination of a court of common law (i).

[Another thing also retards the completion of decrees. Frequently long accounts are to be settled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice.] The investigation of these matters is conducted either by the Master of the Rolls, (or by one of the Vicechancellors,) sitting at chambers; or by his chief clerk acting there under his direction. And the result is stated in the form of a short certificate, (or, if the judge so directs, a formal report); which, if the judge approves, he signs and adopts (j).

When the inquiries, directed by the decree, are completed, the cause is again brought before the court. A final decree is then made, the performance of which is enforced, if necessary, by attachment of the person (k) and sequestration of the estate (1). On due service also of a decree or order for delivery of possession of an estate, the party prosecuting the same is entitled to a writ of assistance; directed to the sheriff of the county in which the lands lie, and authorizing him to enter the premises and eject the defendant, and put the plaintiff in possession. Moreover, by 11 Geo. IV. & 1 Will. IV. c. 36, s. 15, where any person has been committed for a contempt, for not executing any instrument as the court has directed, the court may, under such circumstances as in the statute mentioned,

.

(i) 25 & 26 Vict. c. 42, s. 4.

(j) As to preliminary accounts and inquiries, see Consol. Gen. Ord. XX. It is provided by 15 & 16 Vict. c. 18, ss. 26–30, that this course may be taken with respect to all such matters as may be more conveniently disposed of at chambers than in open court. Such matters as these were formerly referred to a mester in chancery. As to the

masters in chancery, vide sup. vol. 11. p. 426, note ().

(k) See Roberts v. Ball, 3 Smale & Giff. 168.

(1) See Consol. Gen. Ord. xxix., r. 3. When a decree is obtained against a person having privilege of peerage or of parliament, there can be no proceeding by attachment, but it must be by sequestration only.

order the same to be officially executed. And by 1 & 2 Vict. c. 110, s. 1, all decrees and orders of the courts of equity, and all orders of the Lord Chancellor in matters of lunacy, (whereby any sum of money or costs shall be payable to any person,)-shall have the effect of judgments in the superior courts of common law (m); and the persons to whom the payment is to be made shall be deemed judgment creditors, within the meaning of that Act (n).

[If by the decree either party thinks himself aggrieved, he may petition for a rehearing] before the judge by whom it was pronounced, (whether the Lord Chancellor, the Master of the Rolls, or one of the vice-chancellors); or, unless pronounced by the Lord Chancellor himself, may appeal to the Lord Chancellor; and the Lord Chancellor may, if he think fit, refer the matter to the court of appeal in chancery (0). [But after the decree is once signed] by the Lord Chancellor, which is always necessary before enrolment (p), [and enrolled,—it cannot be reheard or rectified, but by bill of review, or by appeal to the House of Lords.

A bill of review 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 of evidence, which could not possibly be had or

(nn) As to the effect of judgments in the superior courts of common law, and the recent enactments, requiring, in certain cases, that, in order to bind land, &c., they must be registered, &c., vide sup. vol. II. pp. 669—671.

(n) If payment on such decrees and orders be not made within one month from the entry of the decree or order, the person to whom it was ordered to be made may sue out one or more writs of fieri facias or elegit, and venditioni exponas, of the same nature with the writs issued, under those names, by the courts of com

mon law. (Consol. Gen. Ord. xxix., r. 6.)

(0) By Consol. Gen. Ord. xxxi., r. 1, no appeal or rehearing shall be allowed unless set down for hearing, and notice thereof served, within five years from the date of the decree-except by special order. Appeals may be heard either before the lord chancellor sitting alone, or before the court of appeal in chancery, at the discretion of the lord chancellor. (14 & 15 Vict. c. 83, s. 12.) As to the court of appeal in chancery, vide sup. vol. 111. p. 427.

(P) 3 Geo. 2, c. 30.

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