Page images
PDF

18 Notes on Equity.— Notices of New

Books: Smith's Chancery Practice.

altogether. This is done for the purpose of heading the rival series. Wc do not believe that this course has been adopted by the most respectable booksellers; but as it has been done, we think it right to hold it up for public reprehension. We consider the practice fraught with evil;—it tends to degrade the Bar, and to impose undue burdens on the profession. We do not say that all existing reports are open to the objections to which we have alluded; some have been continued in a uniform series, and some few appear regularly after the close of each term. For instance, we mention with pleasure the Reports of Mr. Bingham, and point them out for imitation, in this, as in other respects; but we are sorry to say that our objection applies to too many of the existing series of reports.

The other great objections to the present practice of reporting, to which we and others have frequently adverted, is the selection of cases which are made. In a number of reports, how few decisions are given which either establish a new principle, or carry an old one further? On the contrary, most of the judgments rest on the particular circumstances of each case. These circumstances are given at great length; and as a general rule, we put by the Number, without adding more than one or two cases to our stock, which will ever serve us in afterpractice.

To a certain extent the profession has a remedy for the present grievance in its own hands. They may discourage and discontinue any series of reports open to the objections which we have named; and this course we know has been, and we think should be pursued; but this is only a palliative, the complete remedy we have already named, — the appointment of paid reporters, who should have regular salaries, and report no case without the authority of the Judges.

NOTES ON EQUITY.

INFANT FEME COVERT.

If any thing is prayed against an infant, by the words of the decree he has a day given him to show cause within a certain time after he comes of age. The consent of an infant cannot therefore, as a general rule, be taken in a Court of Equity; but where a married woman, under twenty-one, petitioned that a sum in Court, amounting to 200/., to which she wa3 entitled, might be paid to her husband, the Vice Chancellor

said that he thought the consent of a married woman, though a minor, had been taken on a former occasion; and on the lady appearing and consenting, his Honor made the order.*

PROVING UEEDS AT THE HEARING.

I F a party is desirous to prove deeds viva voce at the hearing, he may procure an order for liberty so to do, by presenting a common petition or motion, of course; but nothing can be proved viva voce that requires more than the proof of hand-writing, or that admits of cross-examination,b and where a defendant insisted that a covenant in a deed was inserted without his knowledge, and that the same was not read over, and imputed fraud, it was held in a late case* that the deed could not be proved viva voce at the hearing. However, in a still later casc,d counsel having objected to a deed being proved viva iwce at the hearing, because one object of the suit was to impeach it, the Vice Cliancellor ruled that if the execution was admitted, and its validity only questioned, that it might be proved vive voce.

NOTICES OF NEW BOOKS.

A Treatise on the Practice of the Court of Chancery, with an Appendix of Forms and Precedents of Costs, adapted to the last New Oraers. By John Sidneyfcjraith, ofthe Six Clerks' Office. Second edition, revised and enlarged. London: Saunders and Benning, 1837.

Mr. Smith's second edition of his Practice of the Court of Chancery is now, we think, the most complete work on the subject. Since the former edition, he has incorporated the effect of the new orders in Chancery into his text, and added many unreported cases:—thus giving an entire view of the Practice of the Court at the present time. He has also better methodized and improved the arrangement of the Work. This latter point is always of great importance to the Practitioner, for he is thus enabled to find readily the information he seeks to obtain. A series of Tables are also given in the work, shewing the mode of proceeding in default of the appearance or of the an

[ocr errors]

Xotwts of New Books: Charnoch's New Rules of Pleading.New Orders in Chancery. 19

Mrcr of a defendant, and the manner in which Decrees and Orders are enforced. This is a useful addition to the former work. Mr. Smith has evidently bestowed great labour in revising and completing the present edition, and we think the whole is very carefully executed, and highly creditable to his practical knowledge and research.

Digest of the various Decisions since the Avbj Pleading Rules came into Operation, with Explanatory Observations thereon, distinguishing what Def ences may be given i* Evidence under the General Issue, and what must be specially pleaded. By Richard Charnock, Esq of Gray's Inn. London: Sweet. 1837. This is a useful collection of Practical Cases. It is divided into Defences, which may be pleaded under the General Issue, and Defences requiring to be specially pleaded, and it comprises actions of assumpsit, actions on the case, actions of slander, of trespass, and of trover. Mr. Charnock observes in his preface, that—

"The New Pleading Rules have occasioned s'> much confusion and uncertainty as to what defences must be specially pleaded, and what may be given in evidence under the plea of the general issue, that it has become of late yearn often a task of no inconsiderable difficulty lor the practitioner to ascertain what course it is safe to pursue. On the one hand, if the defendant plead the general issue, it has very frequently occurred since the new rules, (as every man of experience well knows,) that 'lie proposed defence has been rejected by the Court, on the ground that the defendant should have pleaded it specially: on the other h'.nd, if the defendant plead specially that which amounts to the general issue, or, in other words, that which may be given in evidence under the general issue, he subjects himself to the costs and delay of a demurrer.

"Observing the practitioner to be often in this ililemma, 1 have endeavonrcd to collect and digest all the eases which have occurred in the least degree bearing on the subject, with some of the leading observations of the learned personages who have decided the various points submitted to their consideration, with a view of illustrating the subjects to which 'hey relate,—to which I have ventured, occasionally, to add a few theoretical and practical remarks of my own.

"My object is merely a condensation of what has occurred on this subject since the promulgation of the Pleading Rules, for the greater convenience and facility of my professional brethren: the necessity for an intimate acquaintance with the niceties and technicalities of the Pleading Rules, is apparent, as they are now ' part and parcel of the law of the land.'

These Collections of Cases, well arranged, on detached portions of the large field of Practice, materially assist the practitioner; and in the minute subdivisions of legal labour, it will naturally occur that writers on a detached subject, will take a more exact and clear view of it than those who have a wider and more comprehensive aim. The present volume, besides its other merits, has a good index, constructed on a plan which we should like to see, wherever practicable, generally followed: it comprises very pithily all the points contained in the work.

NEW ORDERS IN CHANCERY,

FOB BETTER REGULATING THE HEARING OP CAUSES, &C.

5th May, 1837. The Right Honourable Charles ChristoPher Lord Cottenham, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honourable Henry Lord Lanodale, Master of the Rolls, and the Right Honourable Sir Lancelot Shadwell, Vice Chancellor of England, doth hereby order and direct in manner following; that is to say,—

I. That, from and after the 20th day of May now instant, every original information or bill of complaint filed in the High Court of Chancery, shall (at the option of the party, informant or complainant, by or on whose behalf the information or bill shall be filed) be distinctly marked at or near the top or upper part thereof, either with the words " Lord Chancellor," or with the words " Master of the Rolls:" And that the Six Clerk and Clerk in Court, to whom the filing of the information or bill belongs, shall, in the books and indexes in which the same shall be entered, add to the entry thereof such distinguishing words or mark as may make it appear from such entry whether the information or bill is marked with the words" Lord Chancellor" or with the words " Master of the Rolls :" And that, from and after the said 20th day of May, the Six Clerks and Clerks in Court arc not to file any original information or bill of complaint which shall not be marked in the manner hereinbefore directed.

II. That, in every cause in which the original information or bill shall be marked with the words " Lord Chancellor," or with the words "Master of the Rolls," the Six Clerk to whom it belongs to give or sign the certificate that the cause is ready for hearing shall, upon being applied to for such certificate, see that tile same certificate is marked, or cause the same to be markedwith the words " Lord Chancellor" or with the words " -Master of the Rolls," in conformity with the like words marked on the original information or bill.

20 New Orders

III. That in every cause now in court, but which has not yet been set down for hearing, the Clerk in Court who, on the behalf of the informant, or of the plaintiff or defendant, shall, at any time after the 20th day of May instant, apply to the Six Clerk to set down the cause for hearing, or for the certificate that the cause is ready for hearing, shall state or certify to such Six ('lerk whether any orders or order disposing of any pleas or pica, demurrers or demurrer, or any special orders or order upon merits shewn by answer or by affidavit, have or has been made in the cause or (in case no such order as aforesaid has been made) whether the party on whose behalf the application is made desires the cause to be heard before the Lord Chancellor or the Master of the Rolls; and in case the Clerk in Court so applying shall certify that any such order as aforesaid has been made bv the Lord Chancellor or Vice Chancellor, and not by the Master of the Rolls, or that suehjorders as aforesaid have been made by both the Lord Chancellor or Vice Chancellor, and the Master of the Rolls.'but that the last of rach orders has been made by the Lord Chancellor or Vice Chancellor, or (in case no such order has been made in the cause) that the party desires the cause to be heard before the Lord Chancellor, the Six Clerk giving the certificate shall see that the same certificate is marked, or shall cause the same to be marked, with the words "Lord Chancellor;" and the Six Clerk and Clerk in Court shall cause the entries of the cause in their books and indexes to be marked with such distinguishing words or marks as shall signify that the cause is to be heard before the Lord Chancellor; and in case the Clerk in Court so applying as aforesaid shall certify that any such order as aforesaid has been made by the Master of the Rolls, and not by the Lord Chancellor or Vice Chancellor, or that such orders as aforesaid have been made by both the Lord Chancellor or Vice Chancellor, and the Master of the Rolls, but that the last of such orders has been made by the Master of the Rolls, or (in case no such order as aforesaid has been made in the cause) that the party desires the cause to be heard before the Master of the Rolls, the Six Clerk giving the certificate shall see that the same certificate is marked, or shall cause the same to be marked with the words " Master of the Rolls;" and the Six Clerk and Clerk in Court shall cause the entries of the cause in their books and indexes to be marked with such distinguishing words or marks as shall signify that the cause is to be heard before the Master of the Rolls.

IV. That the Registrars of the Court, and the Secretaries of the Lord Chancellor and of the Master of the Rolls, arc not at any time after the said 20th day of May instant to set down to be heard any cause in which the certificate of the cause being ready for hearing shall not be marked in the manner directed by the 2d and 3rd Orders, and arc not, after the date of these Orders, to set. down to be heard before the Master of the Rolls any cause, further directions, or exceptions, which is or are now

fa Chancery.

set down to be heard before the Lord Chancellor, and are not, without special order of the Lord Chancellor, to set down to be heard before the Lord Chancellor any cause, further directions, or exceptions, which is or are now set down to be heard before the Master of the Rolls.

V. That in every petition praying that a day maybe appointed for arguing a plea or demurrer put in to any information or bill filed on or after the said 20th day of May, it shall be stated whether the information or bill to which such plea or demurrer is put in is marked with the words " Lord Chancellor," or with the words " Master of the Rolls."

VI. That from and after the said 20th day of May instant, the several causes and matters hereinafter mentioned, not already set down, shall be set down to be heard before the Lord Chancellor, and shall not without special order of the Lord Chancellor be set down to be heard before the Master of the Rolls.

1. Every plea or demurrer, and all exceptions in any cause in which the information or bill shall be marked with the words " Lord Chancellor," or in which the entries of the cause in the Six Clerks' books shall be so marked as to signify that the same is to be heard before the Lord Chancellor.

2. Every cause in which the certificate of the cause being ready for hearing shall be marked with the words " Lord Chancellor."

X. Every cause requiring to be heard for further directions, or on the equity reserved, and in which the Master's report has been or shall be made, or a trial at law has been or shall be had, or the certificate of a court of common law has been or shall he obtained in pursuance of a decree or order pronounced by the Lord Chancellor or Vice Chancellor.

4. Every exception or set of exceptions taken to any report made by a Master in ordinary, in pursuance of a decree, or an order of reference, (not being an order obtained as of course,) made by the Lord Chancellor or the Vice Chancellor.

VII. That from and after the said 20th day of May instant, every petition presented or motion made under or pursuant to the liberty to apply contained in any decree or decretal order of the Lord Chancellor or Vice Chancellor shall, as to petitions, be addressed to and set down to be heard before the Lord Chancellor and shall as to motions be made before the Lord Chancellor or Vice Chancellor; and that no such petition or motion shall, without special order of the Lord Chancellor, be addressed to or made before the Master of the Rolls.

VIII. That all such pleas, demurrers,causes, further directions, exceptions, and petitions to be so set down to be heard before the Lord Chancellor, as hereinbefore is directed, shall be heard and determined in the same manner, and be subject tothesame rules, as pleas,demurrcis, causes, further directions, exceptions, and petitions, set down before the Lord Chancellor, have heretofore been heard and determined.

IX. That, from and after the said 20th day of May instant, all interlocutory application*

[blocks in formation]

by way of motion or petition, (other than applications for orders of course), shall, in the several cases hereinafter mentioned, be made to the Lord Chancellor or to the Vice Chancellor, and shall not without special order of the Lord Chancellor be made to the Master of the Rolls ; viz., in the several cases following:

1. Where the original information or bill is marked with the words " Lord Chancellor."

2. Where the cause has not been set down for hearing, and any order disposing of any plea or demnrrer or any special order upon merits, shewn by answer or by affidavit, has been made in the cause by the Lord Chancellor or Vice Chancellor, and no such order has been made by the Master of the Rolls.

3. Where the cause has not been set down for hearing, and orders disposing of pleas or demurrers or special orders upon merits, shewn by answer or affidavit, have been made by both the Lord Chancellor or Vice Chancellor and the Master of the Rolls, but the last of such orders was made by the Lord Chancellor or Vice Chancellor.

4. Where the cause has been set down for hearing before the Lord Chancellor, either for original hearing or for further directions, or on the equity reserved.

5. Where the decree or last decretal order was made by the Lord Chancellor or Vice Chancellor, except in cases where the decree or last decretal order was made by the Lord Chancellor on a re-hearing of a decree or decretal order made by the Master of the Rolls.

X. That, from and after the said 20th day of May instant, the several causes and matters hereinafter mentioned, not already set down, l shall be set down to be heard before the Mas- 1 ter of the Rolls, and shall not otherwise than 1 for the purpose of re-hearing be set down to 1 be heard before the Lord Chancellor.

1. Every plea or demurrer, and all excep-' tions in any cause in which the information or 1 bill shall be marked with the words " Master « of the Rolls;" or in which the entries of the cause in the Six Clerks' books shall be so < marked as to signify that the same is to be t heard before the Master of the Rolls. 1

2. Every cause in which the certificate of t the same being ready for hearing shall be marked with the words " Master of the Rolls." t

3. Every cause requiring to be heard for i further directions or on the equity reserved, * and in which the Master's report has been or t shall be made, or a trial at law has been or < shall be had, or the certificate of a Court of t Common Law has been or shall be obtained, « in pursuance of a decree or order pronounced < by the Master of the Rolls. <

4. Every exception, or set of exceptions, s taken to any report made by a Master in ordi- c nary, pursuant to a decree or an order of refer- s ence (not being an order obtained as of course) 1 made by the Master of the Rolls. t

XI. That, from and after the said 20th day ( of May instant, every petition presented, or I motion made, under or pursuant to the liberty c to apply contained in any decree or decretal s order of the Master of the Rolls, shall be t

addressed to and set down to be heard, or shall be made, before the Master of the Rolls: And that, except for the purpose of re-hearing an order of the Master of the Rolls, no such 'petition or motion shall be addressed to or made before the Lord Chancellor.

XII. That, from and alter the said 20th day of May instant, all interlocutor)' applications, by wav of motion or petition, (other than applications for orders of course), shall, in the several cases hereinafter mentioned, be made to the Master of the Rolls, and shall not, except for the purpose of re-hearing an order of the Master of the Rolls, be made to the Lord Chancellor; viz. in the several cases following :—.

1. Where the original information or bill is marked with the words "Master of the Rolls."

2. Where the cause has not been set down for hearing, and any order disposing of any plea or demurrer, or any special order upon merits shewn by answer or affidavit, has been mad« in the cause by the Master of the Rolls, and no such order has been made by the Lord Chancellor or Vice Chancellor.

3. Where the cause has not been set down for hearing, and orders disposing of pleas or demurrers, or special order upon merits shewn by answer or affidavit, have been made by both the Lord Chancellor or Vice Chancellor and the Master of the Rolls, but the last of such orders has been made by the Master of the Rolls.

4. Where the cause has been set down for hearing before the Master of the Rolls, either for original hearing or for further directions, or on the equity reserved, and is not now set down to be so heard before the Lord Chancellor.

5. Where the decree or last decretal order was made by the Master of the Rolls or by the Lord Chancellor, on the re-hearing of a decree or decretal order of the Master of the Rolls.

XIII. That the above Orders as to interlocutory applications shalljnot extend to any applications for orders of course, nor to any petitions presented, or notices of motion given, before the 18th day of May instant. XIV. That all applications for orders of course to be obtained on petition or motion shall and may be made in the same manner in all respects as if the above Orders had not been made; but as to all cases in which, according to the 9th preceding Order, interlocutory applications (other than applications for orders of course) are directed to be made before the Lord Chancellor or Vice Chancellor, if any order nisi, upon which cause against making the order absolute is to bo shewn to the Court, shall be obtained as of course from the Master of the Rolls, such cause shall be shewn before the Lord Chancellor or Vice Chancellor; and if any order of reference to the Master in ordinary shall be obtained as (>f course from the Master of the Rolls, and the Master's report pursuant to such order of reference shall be excepted to, the exceptions thereto shall be heard before the Lord Chancellor or the Vice Chancellor; And in all cases in which New Orders in Chancery —New Bills in Parliament

22

according to the 12th preceding Order interlocutory applications (other than applications for orders of course) are directed to be made before the Master of the "Rolls, if any order nisi, upon which cause against making the order absolute is to be shewn to the Court, shall be obtained as of course from the Lord Chancellor or Vice Chancellor, such cause shall be shewn before the Master of the Rolls; and if any order of reference to the Master in ordinary shall be obtained as of course from the Lord Chancellor or Vice Chancellor, and the Master's report pursuant to such order of reference shall be excepted to, the exceptions thereto shall be heard before the Master of the Rolls.

XV. That, in the interval between the close of the sittings after any term and the commencement of the sittings before or at the beginning of the next ensuing term, applications for special orders may be made to any Judge of the Court in the same manner as if these Orders had not been made; but that the orders which shall be made in any such interval by the Lord Chancellor, or by the Master of the Rolls, or by the Vice Chancellor, shall, if not made by the Judge to whom the application, if made during the ordinary sittings of the Court, would have been made pursuant to the directions contained in these Orders, be marked as having been made for such Judge, and shall in the future proceedings of the cause be deemed to be the order of such Judge in all respects save this,—that no order so made by one Judge for another under the circumstances aforesaid shall be reheard for the purpose of being discharged or varied otherwise than by the Lord Chancellor.

XVI. That, from and after the said 20th day of May instant, all matters which under and by virtue of any Act of Parliament or otherwise the Court hath jurisdiction to hear and determine in a summary way, and which shall be in the first instance brought under the consideration of the Court upon a petition presented to the Lord Chancellor, shall in any subsequent stage of the proceedings respecting the same matters be heard and determined by the Lord Chancellor or Vice Chancellor; and that no petition respecting the same matters in any subsequent stage of the proceedings relating thereto, shall, without special order of. the Lord Chanceller, be set down to be heard before the Master of the Rolls; and that all such matters as aforesaid

vhieh shall be in the first instance brought under the consideration of the Court upon a petition to the Master of the Rolls, shall, in any subsequent stage of the proceedings respecting the same matters, be heard and determined by the Master of the Rolls; and that no petition respecting the same matters in any subsequent stage of the proceedings relating thereto, shall, otherwise than for the purpose of re-hearing an order of the Master of the Rolls, be set down to be heard before the Lord Chancellor.

COTTENHAM, C.

Lancdale, M. R.
Lancelot Shadwell, V. C.

NEW BILLS IN PARLIAMENT.

EXrKNSE OF CORONERS' INQUESTS'.

Theholdingofcoroners'inquests on dead bodies is attended with divers necessary expences, for the payment whereof no certain provison is made by law, and such expences have been usually discharged without any lawful authority for that purpose out of the monies levied lor the relief of the poor, and it is expedient to make adequate legal provision for the payment of such expen es.

It is therefore proposed to be enacted, thnl whenever any inquest shall be holden on anv dead body, the coroner holding the same shall advance and pay all such reasonable sums as have usually been paid to the constable or other person giving notice to the coroner holding such inquest, and to the constable or other person summoning the Jury, and to the Jurors attending such inquest, and also when required shall pay a reasonable sum by way of remuneration for the use of any room or other place where such inquest shall be hidden, and of any room or other place where the dead body on which such inquest shall be taken shall have been deposited.

And it shall be lawful for the treasurer of the county, riding, or division, within which such inquest shall be holden, and he is required to pay to such coroner, out of the county rates, all sums which he shall so advance and pay, and all other expences heretofore usually paid and allowed, and which shall have been properly incurred in and about the holding of any such inquest.

Provided that nothing herein contained shall be deemed or taken to affect an act passed in the last session of parliament, intituled, "An act to provide for the attendance and remuneration of medical witnesses at coroner's inquests."

That before any such payment shall be made by such treasurer, the coroner shall lay or cause to be laid before two or more Justices assembled at some petty sessions to be holdcn in and for the division in which such inquest shall have been holden, a full and true account in writing of all such expences as aforesaid, accompanied by proper vouchers for the same; and such Justices may, if they shall think fit, examine such coroner on oath as to all or any of the items of such account ; and such justices, if satisfied of the correctne»sofsuch account, or any two of such justices, shall sign the said account in testimony of their approbation and allowance thereof, and shall thereupon make an order on the said treasurer for payment of the stun which they shall so find to be due to the said coroner, and such order shall be a sufficient voucher and authority to the said treasurer for making the payment thereby directed.

« PreviousContinue »