1845. MAN v. Indorsed-Infrascriptus Ricardus in Canc. R. personaliter comparens et ibidem super sancta Dei evangelia juratus et examinatus ad veritatem dicendum de materia in hac billa contenta dicit quod ipse est seisitus tantum de xii acris terre unde infrascripta Katerina dotari debet Et ulterius juravit super sancta Dei evangelia ad liberandum dotem, prefate Katerine de predictis xii acris terre prout inde de jure dotari debet Infrascriptus Ricardus dimissus est de Curia quietus sine die ex assensu partis. The following is a copy of the Questions sent by Lord Lyndhurst to the Clerks of Records and Writs, and of their Certificate in answer. See before, pages 21 and 23. Enrolment of Copy of questions sent by Lord Lyndhurst to the Clerks of Re QUESTIONS SENT BY LORD LYNDHURST TO THE CLERKS OF The Lord Chancellor requests the Clerks of Records and Writs to certify 1st. Whether the six months allowed to enrol a decree or cords and Writs, order is computed by calendar, or by lunar months. and of their certificate in answer. 2nd. When an order is considered to be enrolled to prevent a re-hearing or appeal. 21st February, 1845. commanded that no writ of sub- J. Collis, Registrar. bills or petitions presented before -in like manner as upon those presented since the date of the statute of Hen. VI. These "Plegii de Prosequendo," undertook for the plaintiff to make satisfaction to the defendant for his expenses and damages caused by the suit, in case the plaintiff should not be able to prove his complaint. See further the Appendix to the present volume. 1845. CERTIFICATE IN ANSWER TO THE ABOVE QUESTIONS. To the Right Honourable the Lord High Chancellor of Great Britain. The Clerks of Records and Writs humbly certify unto your Lordship 1st. That the six months allowed to enrol a decree or order, are by the practice of the Court computed by calendar months. This practice has existed during all the personal knowledge of the Senior Clerk of Records and Writs, viz., near sixty years, and it is so stated in a precedent book kept by the late Mr. Deaves, formerly Secretary at the Rolls, who died in 1791, and which book is considered of high authority (a). It is also so stated to us by the present deputy to the Secretary of Decrees, who has held that office (with the exception of a short interval) upwards of forty-six years, and who has always acted thereon, and we have never known that practice controverted. 2nd. That a decree or order is to be considered enrolled, so as to prevent a re-hearing or appeal, when the docket of the enrolment is signed by the Lord Chancellor, or is left with the Secretary of Decrees, or his deputy, for that purpose, provided no caveat has been entered, or is then in force, to impede the enrolment thereof. Dated the 27th February, 1845. J. A. Berrey. John Veal. F. Bedwell. S. C. Ward. MAN v. RICKETTS. The It is not A FURTHER point was incidentally raised in this case. (a) See the Appendix to the present volume. (b) See a subsequent page of the present work. irregular to pass and enter a decree pend ing a defect in the suit occa sioned by the death of a sole plaintiff. 1845. MAN v. of the cause. The plaintiff Turquand was the new official assignee, and was substituted as plaintiff in July, 1844. In the mean time, 27th April, 1844, pending the defect in the suit occasioned by the death of the sole plaintiff Lackington, the decree was passed and entered in the usual way. It was contended on the part of the defendant T. B. Ricketts, that it is irregular to pass and enter a decree whilst the suit is abated, or has become defective, by reason of the death of one of several defendants, much more when it has become defective by the death of the sole plaintiff. LORD LYNDHURST said that a decree when drawn up, passed, and entered, bears date the day on which it is pronounced, and it has, therefore, relation back to that day. It follows that it is unaffected by any event subsequent to that day. The solicitor of the deceased plaintiff or defendant having the usual notice of passing the decree, it was, as he had learned from the registrars of the court, quite regular to pass and enter the decree pending any abatement, or defect, occasioned by the death of a plaintiff or defendant. It was not the practice of the Court to wait until a bill of revivor or supplement was filed, or the defect otherwise supplied. The conclusion was, that it was not irregular in the present case to pass and enter a decree pending a defect in the suit occasioned by the death of a sole plaintiff. Old practice as the suit. In this part, as in other parts, of our practice, there has been some want of uniformity. In 3 Reports in Chancery, 41, there is the following note of a case-2nd Dec. 21 Car. II., Pew plaintiff, Cadmore defendant. The plaintiff an administrator, and after a decree pronounced died before entry of the order, and the entry is suspended by the administrator de bonis non, &c. This obscure note has been understood as showing that in the reign of Charles II. it was considered irregular to enter a decree, whilst the suit was abated. If after judgment defendant die, plaintiff may not enter his decree. MS. temp. Jac. I. 1845. MAN v. The well-known case of Bertie v. Lord Falkland, Dickens, 25, would, if Dickens could be here trusted, also be an authority for the position that formerly a decree could not be passed and entered RICKETTS. after the death of one of the parties, and before the suit was revived; Case of but there are so many inaccuracies in Dickens which the infor- Bertie v. Lord Falkland, mation afforded by other reports of the case enable us to discover, Dickens, 25. that it is difficult to rely upon his statement of a point, the accuracy of which there are no such means of testing. The statement of Dickens shall be given verbatim with some remarks printed between crotchets.-The cause was heard 26th January 1677. [The cause was heard Hilary Term, 9 Will. III. 1697 (a). The decree is dated 26th January, 1697 (6), Lords' Journals, vol. 16, p. 241.] There was an appeal to the House of Lords on the minutes of the decree. [This seems very probable. The decree is dated 26th January, 1697, and the appeal came on for hearing in the House of Lords, 10th March, 1697, Lords' Journals, vol. 16, p. 230, and yet in the case of Lord Macclesfield v. Fitton, 3rd May, 1689, it was referred to the Lords Commissioners of the Great Seal to rehear the cause, there being as yet no decree enrolled. Macqueen's Pract. p. 118.] All rested, and the decree remained undrawn until the suit abated by the death of Lord Falkland. [The Lord Falkland who was a party to this suit was Lucius Henry, the fifth Viscount. He did not die until the 31st of December, 1730-Douglas, Peerage of Scotland.] The plaintiff applied to have the decree drawn nunc pro tunc. [There were two suits, Bertie v. Lord Falkland, the original suit, and Lord Falkland v. Bertie, the cross suit. In the original suit the plaintiffs were the Honourable James Bertie, and Elizabeth his wife, who claimed a certain estate. The decree of the Court of Chancery had dismissed their bill, but the order of the House of Lords reversed the decree of the Court of Chancery, and adjudged the estate to Elizabeth Bertie for life, with remainder to Lord Falkland, giving, however, no directions to the Court of Chancery to execute the order. Elizabeth Bertie died September, 1715, (Lords' Journals, vol. 20, p. 262), and the application chronicled by Dickens, Nov. 1715, was no doubt an application by Lord Falkland in consequence of that event. It is not probable that (a) Holt, 230; 2 Vern. 333; 3 Ch. Ca. 129; 12 Mod. 182; 1 Salk. 231. In 2 Freem. 220, the hearing is erroneously assigned to Michaelmas Term, 1697. (b) Colles' Parl. Cases, page 10, has the 25th January, 1696, as the date of the decree. This is a mistake. 1845. MAN v. the application was an application that the decree of the Court of Chancery should be drawn nunc pro tunc. It is, however, probable that the application was an application for giving effect in some way to the order of the House of Lords.] It was objected that the suit being abated ought to be revived.-The following is the copy from Dickens of Lord Cowper's judgment.-Lord Chancellor said, "that the drawing up of a decree was as material a thing as could be taken care of, and to pass and enter a decree nunc pro tunc was to debar the representative of the deceased party from taking that course he might be advised, therefore the suit ought to be revived before the decree be passed and entered nunc pro tunc, and this Court cannot execute a decree of the House of Lords but by their order." The last line of Lord Cowper's judgment can leave little doubt that the decree mentioned by Dickens was not the decree of the Court of Chancery, but the order of the House of Lords. Independently of the circumstance already mentioned, that the order of the House of Lords gave no directions to the Court of Chancery to execute the order, a circumstance apparently alluded to by Lord Cowper, may it not reasonably be doubted whether the ex parte order, that an order of the House of Lords may be an order of the Court of Chancery, can be regularly made during an abatement of the suit? The conjecture above, as to the nature of the application to Lord Cowper, is strengthened by some subsequent proceedings in the House of Lords. In January, 1715, Lord Falkland presented a petition to the House of Lords stating the decree of the Court of Chancery, and the reversal of that decree by the judgment of the House, and that pursuant to such judgment Mr. Bertie and Elizabeth his wife enjoyed the estate till September, 1715, when Elizabeth Bertie died, whereby the estate was vested in Lord Falkland. The petition prayed that the order or judgment of the House might be revived and carried into execution. The petition was referred to a committee, who, after hearing counsel, made a report recommending an order. The report was agreed to, and the order was made by the House. This order contained proper directions to the Court of Chancery for carrying into execution the judgment of the House of Lords. The petition, report, and order may be seen in the Lords' Journals, vol. 20, pages 262 and 263. In Sheffield v. The Duchess of Buckingham[shire,] West, 673, June, 1739, it was said on the one side that decrees were constantly |