xxii

DISMISSING BILLS, OTHERWISE THAN AT THE HEARING, AND

STAYING PROCEEDINGS.

II. For want of prosecution

801-812

III. Where the suit has abated, or become otherwise defective

IV. Cases of election

812-815

815-818

XII. Interrogatories

920-921

XIII. Examination of witnesses by the examiner on interrogatories

XIV. Examination of witnesses de bene esse

926-930

932-946

XV. Demurrers by witnesses

942-942

XVI. Publication

945-951

XVII. Suppression of depositions

950-955

XVIII. Re-examination of witnesses

XIX. Examination of witnesses after publication

952-950

955-961

THE

PRACTICE

OF

THE HIGH COURT OF CHANCERY.

CHAPTER I.

THE COMMENCEMENT OF A SUIT.

THE practice of the Court of Chancery, and of its various offices, is regulated by rules laid down in Acts of Parliament, in the General Orders of the Court, passed or promulgated from time to time, in the Regulations of the Judges for the conduct of business in their chambers, and of the Registrars of the Court respecting the transaction of business in their office; and by custom or usage, to be ascertained generally from former decisions of the Court; the decisions of the Court are also important in determining the construction to be put upon the Acts of Parliament, General Orders, and Regulations.

1

It will be the object of this Treatise to explain the practice of Object of the the Court, in reference to its equitable jurisdiction.

1 "Ancient and uniform practice constitutes the law of the Court, as much as a positive order," per Lord Eldon, 2 Mer. 2.

The practice of the English Court of Chancery forms the basis of the Equity practice of the Courts of the United States. Per Story J., in Smith v. Burnham, 2 Sumner, 612, 625.

By the Rules of Practice for the Courts of Equity of the United States it is provided that in all cases where the rules prescribed by the Supreme Court, or by the Circuit Court, do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the District where the Court is held, not as positive rules, but as furnishing just analogies to regulate the practice. Rule 90, see Clark v. Reyburn, 8 Wallace U. S. 318, 323. In Saunders v.

Frost, 5 Pick. 272, Wilde J. said: "We do
not adopt the English rules of practice in-
discriminately, but only as they appear
reasonable and conformable to the spirit
of our system of jurisprudence and general
rules of practice."

Under the "Rules for the Regulation of
Practice in Chancery in Massachusetts,"
promulgated in 1860, the Court adopted,
as the outlines of their practice, the prac-
tice of the High Courts of Chancery in
England, so far as the same was not repug-
nant to the Constitution and laws of the
Commonwealth, nor to such rules of prac-
tice as the Courts had made, or from time
to time might make. Rule 38. In other
States the same has been adopted as the
basis of their Chancery practice. See Bur-
rall v. Eames, 5 Wis. 260; West v. Paige,
1 Stockt. (N. J.) 203. But the revised
"Rules for the Regulation of Practice in
Chancery " for Mass. of 1870, are silent
upon this subject.

work.

CH. I.

A suit on the Equity side of the Court of Chancery, on behalf of a subject, is ordinarily commenced by preferring a petition, conEnglish bill. taining a statement of the plaintiff's case, and praying the relief which he considers himself entitled to receive.1 This petition is called in the old books an English Bill by way of distinction from the proceedings in suits within the ordinary or common-law jurisdiction of the Court, which, till the statute of 4 Geo. II. c. 26, were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in Latin; whereas bills in Chancery were, from very early times, preferred in the English language. The bill is addressed to the Lord Chancellor, Lord Keeper, or Lords Commissioners for the custody of the Great Seal: unless the seals are in the Queen's hands, or the holder thereof is himself a party,5 in which case the bill is addressed to the Queen herself, in her Court of Chancery.

Information.

If the suit is instituted on behalf of the Crown, or of those who partake of its prerogative, or whose rights are under its particular protection, such as the objects of a public charity, the matter of complaint is offered to the Court, not by way of petition, but of information, by the proper officer, of the rights which the Crown claims on behalf of itself or others, and of the invasion or detention of those rights for which the suit is instituted.

1 As to the value of the subject-matter, see Ord. IX. 1.

2 As to the procedure on the commonlaw side of the Court, see 12 & 13 Vic. c. 109; and Orders of 29 Dec., 1848, and Aug., 1849, Chitty's Arch., 1741: and post, Chap. XXXIX. § 7, Receivers.

3 See Ld. Red. 8. 1 Spence Eq. Jur. 368; Story Eq. Pl. § 7. There are some bills in early times in the French language: See Cal. Proc. Chan., printed by Public Rec. Com., 1827, Cited Ld. Red. 8. n. (o).

4 Ld. Red. 7, 8; As to Lords Commissioners, see Hardy's Life of Ld. Langdale, vol. 2. p. 258, et seq.

5 See Lord Keeper v. Wyld, 1 Vern. 139; Coop. Eq. Pl. 23.

6 Ld. Red. 7. In Massachusetts, cases in Equity may be commenced by bill or petition, with a writ of subpæna, according to the usual course of proceedings in Equity, or inserted in an original writ of summons, or of summons and attachment, or by a declaration in an action of contract or tort, as the case may be, with or without an order for the attachment of the property or arrest of the defendant. If a discovery is sought, it may be by such bill or petition, or by being made part of such declaration, or by interrogatories. Genl. Sts. c. 113, §§ 3, 4. "Had the statute omitted to prescribe any form of process, or to give any authority to the Court to make one, the bill as used in England in Chancery proceedings, and

This pro

the proceedings under it as there practised, would necessarily have been adopted here; for it would be presumed that the Legislature, having given jurisdiction, intended it should be exercised according to the most approved forms in that country which had been the source from which this and other States in the Union had derived their principles and practice in the administration of justice; and it was without doubt expected that the Court here, on prescribing writs and processes to carry into execution this new jurisdiction, would conform to those which had been established in England, as near as would be consistent with that prompt administration of justice which it was desirable to attain." Per Parker C. J. in Commonwealth v. Sumner, 5 Pick. 365, 366. An action of contract, praying for relief in Equity is to be treated as a suit in Equity. Topliff v. Jackson, 12 Gray, 565; Irvin v. Gregory, 13 Gray, 215.

By a recent Act in Massachusetts, the Superior Court and the Supreme Judicial Court may, in their discretion, and upon such terms as they may deem just, allow amendments changing a suit at Law into a proceeding in Equity, or a proceeding in Equity into a suit at Law, if the same be necessary to enable the plaintiff to sustain the action for the cause for which it was intended to be brought. St. 1865, c. 179, § 1.

7 Ld. Red. 7.

8 Ld. Red. 22; Story Eq. Pl. § 8.

CH. I.

tion sum

mons.

ceeding is then styled an Information. The rules of practice incidental to these two methods of instituting a suit in Equity differ so little from each other that, in the ensuing Treatise, what is said with respect to the one may be considered as applicable to both, unless where a distinction is specifically pointed out. Where, however, the relief sought to be obtained is the adminis- Administratration of the estate of a deceased person, a summary and inexpensive practice has been established by the Act to Amend the Practice of the Court of Chancery, which provides that, in cases of this description, without either formal pleading, or any direct application to the Court itself, a summons may at once be obtained at the chambers of the Master of the Rolls, or of a Vice-Chancellor, and an order be made on the hearing thereof to administer the estate. Where, also, it is sought to obtain the appointment of a guardian for an infant, or an allowance out of his property for his maintenance, the application may be made by summons.2

3

Again, under an Act of Parliament, for which the public are Special case. indebted to the Lord Justice Turner, a very convenient form of application to the Court has been provided for cases where the parties, agreeing upon the facts that form the foundation of their claims, are desirous of obtaining a judicial decision upon the construction of an instrument, or upon almost any point of law resulting from the admitted facts. In cases of this description, the parties are enabled, without going through any forms of pleadings, ⚫ at once to submit the case that they have agreed upon for the decision of the Court. The several forms of proceeding enumerated above relate to the Applications original jurisdiction of the Court, and are different means by which the suitor may call into exercise some portion of that original jurisdiction in his behalf. There are a great number of Acts of Parliament — many of them of recent enactment - under which statutory powers are conferred upon the Court. Many of these Acts point out the particular mode by which relief thereunder is to be sought from the Court; and it may be stated, as a general rule, that a person seeking the aid of the statutory jurisdiction must commence by presenting a petition, which differs in some important particulars from the bill above mentioned, and is not regarded as the commencement of a formal suit.*

1 15 & 16 Vic. c. 86, §§ 45, 47.

2 See posts, Ch. XXIX. § 2, Proceedings in the Judges' Chambers (Infants). 13 & 14 Vic. c. 35, §§ 1-18.

The general Equity jurisdiction_in Massachusetts is conferred upon the Supreme Judicial Court, which has original and exclusive jurisdiction of every original process, whether by bill, writ, petition, or otherwise, in which relief in Equity is

prayed for, except where some different
provision is made by law, and may issue
all general and special writs and processes
required in proceedings in Equity to Courts
of inferior jurisdiction, corporations, and
individuals, when necessary to secure jus-
tice and equity. Genl Sts. c. 113, § 1.
Cases in Equity, and motions and other
applications therein, whether interlocutory
or final, shall in the first instance be heard

under Acts of

Parliament.

Сн. І.

Course proposed.

All these different methods of originating applications to the Court of Chancery lead to somewhat different proceedings in the subsequent stages of the case, and which it will be the object of this Treatise to explain. As a preliminary step, however, it will be convenient to point out the peculiarities of practice incident to different descriptions of persons appearing, either as plaintiffs themselves to obtain relief from the Court, or as defendants to resist the applications of others.