Page images


[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 (2).

An appeal to parliament, that is, to the House of Lords (r), is the dernier resort of the subject who thinks himself aggrieved (s) either by an interlocutory order or a final determination in this court (t); and it is effected by petition (u) to that House,] the decree or order having been first enrolled (x). The petition in this case must be signed by two counsel (of those engaged in the court below, or on the appeal), who must certify that there is a reasonable cause of appeal(y). Upon presenting which, and upon the appellant's entering into recognizance to pay all such costs as the House shall think fit to award (2), an order is made directing the respondent to put in his answer; which being done, either party may then apply to have the cause appointed for hearing: and the appellant and respondent are respectively to deliver their printed cases,—signed by one or more counsel engaged in the court below or in the hearing of the appeal, and containing a narrative of the proceedings below, with so much of the proofs as the parties intend respectively to rely upon (a). [But no new evidence is admitted in the House of Lords upon any account,—this being a distinct jurisdiction (b): 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 any superior court is reviewing the sentence of an inferior, to examine the justice of the former decree, by evidence that was never produced below.]

(9) As to bills of review, see law, by a proceeding in error. Consol. Gen. Ord. xxxi., r. 9–14. (1) By 14 & 15 Vict. c. 83, s. 10,

(r) Vide sup. vol. 111. p. 429. this extends to the decisions of the

(s) This jurisdiction is said (Com. court of appeal in chancery. Journ. 13th March. 1704) to have (u) By 55th Standing Order, begun in the eighteenth year of House of Lords, 13th July, 1678, James the first; and it is certain that petitions of appeal from any court the first petition which appears in of equity must be presented within the records of parliament was pre- fourteen days after the first day of ferred in that year (Lords' Journ. the meeting of parliament, or four23rd March, 1620); and that the teen days after the decree made and first which was heard and deter- entered. And by 118th Order, no mined, (though the name of appeal petition of appeal from any decree was then

novelty,) was presented in equity shall be received after in a few months after (Lords' Journ. two years from the signing and 3rd, 11th, 12th December, 1621), enrolling or extracting of the deboth levelled against the lord chan- cree, and the end of fourteen days cellor Bacon for corruption and after the first day of the meeting other misbehaviour. It was after. of parliament next ensuing, unless wards warmly controverted by the the appellant be under disability, house of commons, in the reign of &c. Charles the second. (Com. Journ. (x) As the general rule, a decree 19th November, 1675.) But this or order must be enrolled within dispute is now at rest; (Show. Par. six months after it has been proCa. 81;) it being obvious to the nounced or made. But the petitioner reason of all mankind, that when

may apply for an order, to the judge the courts of equity became prin- to whose court the cause is attached, cipal tribunals for deciding causes to be allowed to enrol it, within five of property, a revision of their de

years. After that period it can only crees, by way of appeal, became as be enrolled by order of the lord necessary as the revision of the chancellor, or lords justices. (Consol. judgments of the courts of common Gen. Ord. xxiii.)

We have thus touched upon the principal circumstances of a suit in chancery, adhering throughout to the regular and ordinary course of that proceeding. But there are some variations and occasional incidents, of which it will be proper

here to take some notice. 1. It often happens in the course of a suit, that either of the parties have occasion to amend; and more particularly this happens in the case of a plaintiff, where, upon the putting in of the answer, the new light afforded by it suggests the necessity of adding new parties, or introducing new matter by way of amendment of his bill. Such an amendment is in all cases allowed, at least upon payment of costs; and the defendant (if required) must answer afresh

(y) 58th Standing Order, House of Lords, 3rd March, 1697.

(3) See Ord. 26th Jan. 1810.

(a) See Lords' S. O. cxv, cxvii. () Gilb. Rep. 155, 156.

to the bill so amended. And this extends even to facts which may have occurred since the institution of the suit, if the cause is otherwise in such a state as to allow of amendment; or if not, the plaintiff is at liberty to annex a statement of such facts to the bill, and to require an answer to it from the defendant (c).

2. It frequently happens that the suit is abated by death or marriage of parties, or becomes defective by reason of some change or transmission of interest or liability. In such cases an order of revivor or a supplemental order to revive or carry on the proceedings, may in general be obtained as of course (d); and by serving it on all proper persons, they will become parties to the suit, and will be bound to appear to the same ;-a guardian ad litem however being first appointed for such of them as may be infants or under any disability, that of coverture excepted (e).

3. By another provision also recently introduced, with a view to the object of diminishing delay and expense, persons interested in any question cognizable in the Court of Chancery (other than questions in bankruptcy, which constitutes a distinct and peculiar subject of jurisdiction), if they can concur in stating such question in the form of a special case for the opinion of the court,—are entitled to file such special case accordingly; subject to certain provisions for the protection of lunatics, married women, and infants, when they are included as concurring parties. And such special case having been set down for hearing, the court is authorized to determine the question, and by decree to declare its opinion thereon, without proceeding to administer

And the declaration shall be as binding as it would have been if it had been contained in a decree made in a suit between the same parties, instituted by bill; and all executors, administrators, or trustees, making any pay

any relief.

(c) 15 & 16 Vict. c. 86, s. 53 ; Consol. Gen. Ord. xxxii. Prior to Consol. Gen. Ord. ix., rr. 8—24. this statute, it was necessary in such (d) See 17 & 18 Vict. c. 100, cases to resort to a bill of revivor,

or in some instances to a supplemental (e) 15

16 Vict. c. 86, s. 52;

8. 3.


ment, or doing any act in conformity with the declaration, shall be protected, as they would have been by the express order of the court, made in such suit (f ).

4. There may also take place in the course of a suit—and sometimes without bill (9),-certain occasional or interlocutory incidents, viz. motions (h) and petitions(i). The first of these may be made at all stages of a suit, and are analogous to motions in the court of common law (k): but with this difference, that instead of granting, on a hearing ex parte, a rule to show cause in the first instance, a court of equity. proceeds, in the first instance, to a hearing of the parties on both sides; requiring him, however, by whom the motion is made, to give previous notice to his adversary of the nature and time of the intended application. A petition, also, is an incident of an interlocutory kind similar in general to a motion; but adopted in certain cases where a more special statement is required, than can conveniently be comprised in a mere notice of motion. Such statement is accordingly prepared in the form of a petition to one of the judges in equity,—concluding with a prayer of the appropriate relief; on which a day is appointed by the judge for the hearing, and a copy of the petition and the appointment served on the opposite party.

5. Finally, it is to be remarked, that, though a suit in chancery is in general instituted by bill, this is not invariably the case,- for where the equitable rights of the Crown are concerned, (or the rights of those who are under its particular protection, such as the objects of a public charity,) the matter of complaint is brought forward by way of information filed in the name of the attorney-general or (f) 13 & 14 Vict. c. 35.

(8) See 18 & 19 Vict. c. 134, analogous provision was introduced, as regards a suit at law, by 3 & 4 (h) See Consol. Gen. Ord. xxxiii. Will. 4, c. 42, s. 25, and has been (i) See ibid. xxxiv. since extended by 15 & 16 Vict. c. (k) As to motions, vide sup. pp. 76, s. 42. Vide sup. vol. 111. pp. 663,

2, 3.


s. 16.




of the solicitor-general(l). If the rights of the Crown itself are not concerned, this is done at the instance of some person whose name is inserted in the information; and who is termed the relator, and made responsible for costs. Proceedings in chancery indeed in the matter of charities, may also be by another method. For by 52 Geo. III. c. 101, in all cases of breach of charitable trust-or whenever the direction of a court of equity shall be deemed necessary for the administration of such trust—any two or more persons may, (on obtaining the previous sanction of the attorneygeneral or solicitor-general,) apply for relief by way of petition to the Lord Chancellor, Master of the Rolls, or Keeper of the Great Seal; and such person shall be heard in a summary way; and the order which the court makes thereon shall be conclusive, unless within two years afterwards there be an appeal to the House of Lords (m).

(1) In the construction of the Consol. Gen. Ord. the word “bill" is to include “info tion." (Preliminary Order, r. 4;

see also 2 Madd. 164.)

(m) See also the provision contained in 16 & 17 Vict, c. 137 (The

Charitable Trusts Act, 1853), s. 28, as to making application at chambers, (and without information, bill or petition), in matters relating to charities. And as to the practice under this provision, see Consol. Gen. Ord. xli., r. 10, et seq.

« PreviousContinue »