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Notes on Equity.- Notices of New Books : Smith's Chancery Practice.
altogether. This is done for the purpose of said that he thought the consent of a marheading the rival series. We do not be. ried woman, though a minor, had been taken lieve that this course has been adopted by on a former occasion; and on the lady apthe most respectable booksellers; but as it pearing and consenting, his Honor made the has been done, we think it right to hold it order.a up for public reprehension. We consider the practice fraught with evil ;- it tends to! P'ROVING VEEDS AT THE HEARING. degrade the Bar, and to impose undue bur- ! Je a party is desirous to prove deeds viva dens on the profession. We do not say voce at the hearing, he may procure an order that all existing reports are open to the ob- for liberty so to do, by presenting a comjections to which we have alluded; some mon petition or motion of course; but nohave been continued in a uniform series, thing can be proved viva voce that requires and some few appear regularly after the more than the proof of hand-writing, or that close of each term. For instance, we men- admits of cross-examination, and where a tion with pleasure the Reports of Mr. Bing-defendant insisted that a covenant in a deed ham, and point them out for imitation, in was inserted without his knowledge, and this, as in other respects; but we are sorry that the same was not read over, and imto say that our objection applies to too puted fraud, it was held in a late case many of the existing series of reports that the deed could not be proved viva voce
The other great objections to the present at the hearing. However, in a still later practice of reporting, to which we and case, d counsel having objected to a deed beothers have frequently adverted, is the se-ing proved viva voce at the hearing, because lection of cases which are made. In a num. one object of the suit was to impeach it, ber of reports, how few decisions are given the Vice Chancellor ruled that if the execuwhich either establish a new principle, ortion was admitted, and its validity only quescarry an old one further? On the contrary, tioned, that it might be proved vive voce. 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, with. NOTICES OF NEW BOOKS. out adding more than one or two cases to our stock, which will ever serve us in after- LA Treatise on the Practice of the Court of practice.
Chancery, with an Appendix of Forms and · To a certain extent the profession has al
Precedents of Costs, adapted to the last remedy for the present grievance in its own
New Orders. By John Sidney Smith, of the hands. They may discourage and discon
Six Clerks' Office. Second edition, retinue any series of reports open to the ob
vised and enlarged. London: Saunders jections which we have named; and this
and Benning, 1837. course we know has been, and we think should be pursued ; but this is only a pal
Mr. Smith's second edition of his Practice liative, the complete remedy we have already
of the Court of Chancery is now, we think, named,- the appointment of paid reporters,
the most complete work on the subject. who should have regular salaries, and report
Since the former edition, he has incorporated no case without the authority of the Judges.
the effect of the new orders in Chancery into his text, ard added many unreported
cases :- thus giving an entire view of the NOTES ON EQUITY.
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 INFANT FEME COvert.
| Practitioner, for he is thus enabled to find If any thing is prayed against an infant, readily the information he seeks to obtain. by the words of the decree he has a day | A series of Tables are also given in the given him to show cause within a certain work, shewing the mode of proceeding in time after he comes of age. The consent default of the appearance or of the anof an infant cannot therefore, as a general rule, be taken in a Court of Equity; but where
a Gullin v. Gullin, 7 Siin. 236. a married woman, under twenty-one, peti
o Lakev, Skinner, I J. & W. 15; and see tioned that a sum in Court, amounting to Bank v. Fargues, I Abl. 145. 2001., to which she was entitled, might be c Barfield v. Kelly, 4 Russ. 355. paid to her husband, the Vice Chancellor d Alivrnry Gen. v. Peurson, 7 Sim. 309..
Notices of New Books: Charnock's New Rules of Pleading.– New Orders in Chancery. 19
syer of a defendant, and the manner in These Collections of Cases, well arranged, which Decrees and Orders are enforced. on detached portions of the large field of This is a useful addition to the former work. Practice, materially assist the practitioner; Mr. Smith has evidently bestowed great and in the minute subdivisions of legal lalabour in revising and completing the pre- bour, it will naturally occur that writers on sent edition, and we think the whole is a detached subject, will take a more exact very carefully executed, and highly credi- and clear view of it than those who have table to his practical knowledge and re- a wider and more comprehensive aim. The search.
present volume, besides its other merits, has
a good index, constructed on a plan which Digest of the various Decisions since the
we should like to see, wherever practicable, New Pleading Rules came into Operation,
I generally followed : it comprises very pithily with Explanatory Observations thereon,
| all the points contained in the work. distinguishing what Defences may be given in Evidence under the General Issue, and
NEW ORDERS IN CHANCERY,
5th May, 1837. may be pleaded under the General Issue. / The Right Honourable CHARLES CHRISTOand Defences requiring to be specially plead - Pher Lord COTTENHAM, Lord High Chaned, and it comprises actions of assumpsit, ac-cellor of Great Britain, by and with the advice tions on the case, actions of slander, of tres and assistance of the Right Honourable Henry pass, and of trover. Mr. Charnock observes Lord LANGDALE, Master of the Rolls, and the in his preface, that
| Right Honourable Sir LANCELOT ShadwELL, "The New Pleading Rules have occasioned Vice Chancellor of England, doth hereby orso much confusion and uncertainty as to what der and direct in manner following ; that is to 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! I. That, from and after the 20th day of Mav years often a task of no inconsiderable dif- now instant, every original information or bill ficulty tor the practitioner to ascertain what of complaint filed in the High Court of Chancourse it is safe to pursue. On the one hand, I cery, shall (at the option of the party, informant if the defendant plead the general issue, it has or complainant, by or on whose behalf the invery frequently occurred since the new rules. / formation or bill shall be filed) be distinctly (as every man of experience well knows,) that marked at or near the top or upper part thereof, the proposed defence has been rejected by the either with the words “ Lord Chancellor,” or Court, on the ground that the defendant with the words “ Master of the Rolls :” And should have pleaded it specially : on the other that the Six Clerk and Clerk in Court, to whom hand, if the defendant plead specially that the filing of the information or bill belongs, which ainounts to the general issue, or, in shall, in the books and indexes in which the other words, that which may be given in evi- same shall be entered, add to the entry thereof dence under the general issue, he subjects such distinguishing words or mark as may make himself to the costs and delay of a demurrer. it appear from such entry whether the infor
"Olsserving the practitioner to be often in mation or bill is marked with the words“ Lord this dilemina. I bave endeavonred to collect Chancellor” or with the words “Master of the and digest all the cases which have occurred Rolls :" And that, from and after the said 20th in the least degree bearing on the subject, / day of May, the Six Clerks and Clerks in Court with some of the leading observations of the are not to file any original intor
are not to file any original information or bill learned personages who have decided the vari. of complaint which shall not be marked in the vus points submitted to their consideration, manner hereinbefore directed. with a view of illustrating the subjects to which II. That, in every cause in which the original they relate,—to which I have ventured, occa- inforınation or bill shall be marked with the sionally, to add a few theoretical and practical / words “ Lord Chancellor,” or with the words remarks of my own.
“Master of the Rolls,” the Six Clerk to whom it “My object is inerely a condensation of what belongs to give or sign the certificate that the has occurred on this subject since the proinul- cause is ready for hearing shall, upon being gation of the Pleading Rules, for the greater applied to for such certificate, see that the same convenience and facility of my professional certificate is marked, or cause the same to be bretliren : the necessity for an intimate ac- marked with the words “ Lord Chancellor” or quaintance with the niceties and technicalities with the words “ Master of the Rolls,” in conof the Pleading Rules, is apparent, as they are formity with the like words marked on the now part and parcel of thic law of the land.'| original information or bill.
ili. That in every cause now in court, but | set down to be heard before the Lord Chancelwhich has not yet been set down for hearing, lor, and are not, without special order of the the Clerk in Court who, on the behalf of the Lord Chancellor, to set down to be heard beinfurmant, or of the plaintiff or defendant, fore the Lord Chancellor any cause, further shall, at any time after the 20th day of May directions, or exceptions, which is or are now instant, apply to the Six Clerk to set down the set down to be heard before the Master of the cause for hearing, or for the certificate that the Rolls. cause is ready for hearing, shall state or certify V. That in every petition praying that a day to such Six Clerk whether any orders or order may be appointed forarguing a plea or demurrer disposing of any pleas or plea, demurrers or de- put in to any information or bill filed on or murrer, or any special orders or order upon after the said 20th day of May, it shall be merits shewn by answer or by affidavit, have or stated whether the information or bill to which has been made in the cause or (in case no such such plea or demurrer is put in is marked with order as aforesaid has been made) whether the the words “ Lord Chancellor," or with the party on whose behalf the application is made words “ Master of the Rolls." desires the cause to be heard before the Lord VI. That from and after the said 20th day of Chancellor or the Master of the Rolls; and in May instant, the several causes and matters case the Clerk in Court so applying shall cer. hereinafter mentioned, not already set down, tify that any such order as aforesaid has been shall be set down to be heard before the Lord made by the Lord Chancellor or Vice Chancel. Chancellor, and shall not without special order lor, and not by the Master of the Rolls, or of the Lord Chancellor be set down to be heard that such orders as aforesaid have been made by before the Master of the Rolls. both the Lord Chancellor or Vice Chancellor, 1. Every plea or demurrer, and all excepand the Master of the Rolls, but that the last of tions in any cause in which the information or such orders has been made by the Lord Chancel- bill shall be marked with the words “ Lord lor or Vice Chancellor, or (in case no such or- | Chancellor," or in which the entries of the der has been made in the cause) that the party cause in the Six Clerks' books shall be so mardesires the cause to be heard before the Lord ked as to signify that the same is to be heard Chancellor, the Six Clerk giving the certificate before the Lord Chancellor. shall see that the same certificate is marked, 2. Every cause in which the certificate of the or shall cause the same to be marked, with the cause being ready for hearing shall be marked words “ Lord Chancellor;" and the Six Clerk with the words “ Lord Chancellor.” and Clerk in Court shall cause the entries of 3. Every cause requiring to be heard for the cause in their books and indexes to be further directions, or on the equity reserved, marked with such distinguishing words or and in which the Master's report has been or marks as shall signify that the cause is to be shall be made, or a trial at law has been or heard before the Lord Chancellor; and in case shall be had, or the certificate of a court of the Clerk in Court so applying as aforesaid common law has been or shall be obtained in shall certify that any such order as aforesaid pursuance of a decree or order pronounced by has been made by the Master of the Rolls, and the Lord Chancellor or Vice Chancellor. not by the Lord Chancellor or Vice Chancel. 4. Every exception or set of exceptions lor, or that such orders as aforesaid have been taken to any report made by a Master in ordi. made by both the Lord Chancellor or Vice nary, in pursuance of a decree, or an order Chancellor, and the Master of the Rolls, but of reference, (not being an order obtained as that the last of such orders has been made by of course,) made by the Lord Chancellor or the the Master of the Rolls, or (in case no such Vice Chancellor. order as aforesaid has been made in the cause)! VII. That from and after the said 20th day that the party desires the cause to be heard of May instant, every petition presented or before the Master of the Rolls, the Six Clerk motion made under or pursuant to the liberty giving the certificate shall see that the same to apply contained in any decree or decretal certificate is marked, or shall cause the same order of the Lord Chancellor or Vice Chancellor to be marked with the words “ Master of the shall, as to petitions, be addressed to and set Rolls ;” and the Six Clerk and Clerk in Court down to be heard before the Lord Chancellor shall cause the entries of the cause in their and shall as to motions be made before the books and indexes to be marked with such | Lord Chancellor or Vice Chancellor; and that distinguishing words or marks as shall signify no such petition or motion shall, without spethat the cause is to be heard before the Master cial order of the Lord Chancellor, be addres. of the Rolls.
sed to or made before the Master of the Rolls. IV. That the Registrars of the Court, and the VIII. That all such pleas, demurrers, causes, Secretaries of the Lord Chancellor and of the further directions, exceptions, and petitions Master of the Rolls, are not at any time after to be so set down to be heard before the Lord the said 20th day of May instant to set down Chancellor, as hereinbefore is directed, shall be to be heard any cause in which the certificate heard and determined in the same manner, and of the cause being ready for hearing shall not be subject to the same rules, as pleas, demurreis, be marked in the manner directed by the 2d causes, further directions, exceptions, and and 3rd Orders, and are not, after the date of petitions, set down before the Lord Chancellor, these Orders, to set down to be heard before have heretofore been heard and determined. the Master of the Rolls any cause, further di- IX. That, from and after the said 20th day rections, or exceptions, which is or are now of May instant, all interlocutory applications
by way of motion or petition, (other than ap- addressed to and set down to be heard, or plications for orders of course), shall, in the shall be made, before the Master of the Rolls : several cases hereinafter mentioned, be made And that, except for the purpose of re-hearing to the Lord Chancellor or to the Vice Chan- an order of the Master of the Rolls, no such cellor, and shall not without special order of petition or motion shall be addressed to or the Lord Chancellor be made to the Master of made before the Lord Chancellor. the Rolls; viz., in the several cases following : XII. THAT, from and alter the said 20th
1. Where the original information or bill is day of May instant, all interlocutory applicamarked with the words“ Lord Chancellor.” tions, by way of motion or petition, (other
2. Where the cause has not been set down than applications for orders of course), shall, for hearing, and any order disposing of any in the several cases hereinafter mentioned, be plea or demnrrer or any special order upon made to the Master of the Rolls, and shall not, merits, shewn by answer or by affidavit, has except for the purpose of re-hearing an order been made in the cause by the Lord Chancellor of the Master of the Rolls, be made to the or Vice Chancellor, and no such order has Lord Chancellor ; viz, in the several cases fol. been made by the Master of the Rolls. Llowing :- .
3. Where the cause has not been set down for 1. Where the original information or bill hearing, and orders disposing of pleas or de- is marked with the words “ Master of the murrers or special orders upon merits, shewn | Rolls.” by answer or affidavit, have been made by both 2. Where the cause has not been set down the Lord Chancellor or Vice Chancellor and for hearing, and any order disposing of any the Master of the Rolls, but the last of such plea or demurrer, or any special order upon orders was made by the Lord Chancellor or merits shewn by answer or affidavit, has been Vice Chancellor.
made in the cause by the Master of the Rolls, 4. Where the cause has been set down for and no such order has been made by the Lord hearing before the Lord Chancellor, either for Chancellor or Vice Chancellor. original hearing or for further directions, or 3. Where the cause has not been set down on the equity reserved.
for hearing, and orders disposing of pleas or 5. Where the decree or last decretal order demurrers, or special order upon merits shewn was made by the Lord Chancellor or Vice by answer or affidavit, have been made by both Chancellor, except in cases where the decree the Lord Chancellor or Vice Chancellor and or last decretal order was made by the Lord the Master of the Rolls, but the last of such Chancellor on a re-hearing of a decree or de orders has been made by the Master of the cretal order made by the Master of the Rolls. Rolls.
X. THAT, from and after the said 20th day. 4. Where the cause has been set down for of May instant, the several causes and matters hearing before the Master of the Rolls, either hereinafter mentioned, not already set down, for original hearing or for further directions, shall be set down to be heard before the Mas- or on the equity reserved, and is not now set ter of the Rolls, and shall not otherwise than down to be so heard before the Lord Chancelfor the purpose of re-hearing be set down to lor. be heard before the Lord Chancellor.
5. Where the decree or last decretal order 1. Every plea or demurrer, and all excep. was made by the Master of the Rolls or by the tions in any cause in which the information or Lord Chancellor, on the re-hearing of a decree bill shall be marked with the words “ Master or decretal order of the Master of the Rolls. of the Rolls;" or in which the entries of the XIII. That the above Orders as to interlocucause in the Six Clerks' books shall be so tory applications shall not extend to any applica. marked as to signify that the same is to be tions for orders of course, nor to any petitions heard before the Master of the Rolls.
| presented, or notices of motion given, before 2. Every cause in which the certificate of the 18th day of May instant. the same being ready for hearing shall be XIV. That all applications for orders of course marked with the words “ Master of the Rolls.” to be obtained on petition or motion shall and
3. Every cause requiring to be heard for may be made in the same manner in all respects further directions or on the equity reserved, as if the above Orders had not been made; but and in which the Master's report has been or as to all cases in which, according to the 9th preshall be made, or a trial at law has been or ceding Order, interlocutory applications (other shall be had, or the certificate of a Court of than applications for orders of course) are Common Law has been or shall be obtained, directed to be made before the Lord Chancellor in pursuance of a decrce or order pronounced or Vice Chancellor, if any order nisi, upon which by the Master of the Rolls.
cause against making the order absolute is to be 4. Every exception, or set of exceptions, shewn to the Court, shall be obtained as of taken to any report made by a Master in ordi. course from the Master of the Rolls, such cause nary, pursuant to a decree or an order of refer- shall be shewn before the Lord Chancellor or ence (not being an order obtained as of course) Vice Chancellor; and if any order of reference made by the Master of the Rolls.
to the Master in ordinary shall be obtained as XI. T'har, from and after the said 20th day of course from the Master of the Rolls, and the of May instant, every petition presented, or Master's report pursuant to such order of refermotion made, under or pursuant to the liberty ence shall be excepted to, the exceptions thereto to apply contained in any decree or decretal shall be heard before the Lord Chancellor or order of the Master of the Rolls, shall be the Vice Chancellor : And in all cases in which
New Orders in Chancery.- New Bills in Parliament
according to the 12th preceding Order interlocutory applications (other than applications NEW BILLS IN PARLIAMENT. 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
EXPENSE OF CORONERS' INQuests. absolute is to be shewn to the Court, shall be
The holding of coroners'inquests on dead bodies obtained as of course from the Lord Chancellor or Vice Chancellor, such cause shall be shewn
is attended with divers necessary expences, for before the Master of the Rolls ; and if any or
the payment whereof no certain provison is der of reference to the Master in ordinary shall
made by law, and such expences have been be obtained as of course from the Lord Chan
usually discharged without any lawful authority cellor or Vice Chancellor, and the Master's re
for that purpose out of the monies levied for port pursuant to such order of reference shall be
the relief of the poor, and it is expedient to excepted to, the exceptions thereto shall be
make adequate legal prorision for the payment heard before the Master of the Rolls.
of such expen es. XV. That, in the interval between the close
It is therefore proposed to be enacted, that of the sittings after any term and the commence
whenever any inquest shall be holden on any ment of the sittings before or at the beginning of
dead body, the coroner holding the same shall
advance and pay all such reasonable suins as the next ensuing term, applications for special orders may be made to any Judge of the Court
have usually been paid to the constable or in the same manner as if these Orders had not
other person giving notice to the coroner holbeen made; but that the orders which shall be
ding such inquest, and to the constable or made in any such interval by the Lord Chan-1
other person summoning the Jury, and to the cellor, or by the Master of the Rolls, or by the
" Jurors attending such inquest, and also when Vice Chancellor, shall, if not made by the Judge
required shall pay a reasonable sum by way of
remuneration for the use of any room or other to whom the application, if made during the ordinary sittings of the Court, would have been
place where such inquest shall be holden, and made pursuant to the directions contained in
of any room or other place where the dead these Orders, he marked as having been made
body in which such inquest shall be taken shall
have been deposited. for such Judge, and shall in the future proceed
cl And it shall be lawful for the treasurer of the ings of the cause be deemed to be the order of...
| county, riding, or division, within which such such Judge in all respects save this,—that no
inquest shall be holden, and he is required to order so made by one Judge for another under
pay to such coroner, out of the county rates, all the circumstances aforesaid shall be reheard for
sums which he shall so advance and pay, and the purpose of being discharged or varied other
all other expences heretofore usually paid wise than by the Lord Chancellor.
and allowed, and which shall have been properXVI. That, from and after the said 20th day
|ly incurred in and about the holding of any of May instant, all matters which under and by
such inquest. . virtue of any Act of Parliament or otherwise the Court hath jurisdiction to hear and determine in
Provided that nothing herein contained shall
be deemed or taken to affect an al't passed in a summary way, and which shall be in the first |
the last session of parliament, intituled, “An instance brought under the consideration of the
act to provide for the attendance and remune. Court upon a petition presented to the Lord
ration of medical witnesses at coroner's inChancellor, shall in any subsequent stage of the
quests.” proceedings respecting the same matters be heard and determined by the Lord Chancellor
That before any such payment shall be made
by such treasurer, the coroner shall lay or or Vice Chancellor; and that no petition re
cause to be laid before two or more Justices specting the same matters in any subsequent
| assembled at some petty sessions to be holden stage of the proceedings relating thereto, shall,
:lin and for the division in which such inquest without special order of the Lord Chanceller,
shall have been holden, a full and true account be set down to be heard before the Master of the
in writing of all such expences as aforesaid, Rolls; and that all such matters as aforesaid
accompanied by proper vouchers for the same; vhich shall be in the first instance brought under
and such Justices may, if they shall think fit, the consideration of the Court upon a petition to the Master of the Rolls, shall, in any subsequent
exainine such coroner on oath as to all or any
of the items of such account ; and such justistage of the proceedings respecting the same
ces, ifsatisfied of tbe correctne:s of such account, matters, be heard and determined by the Master of the Rolls; and that no petition respecting
or any two of such justices, shall sign the said
account in testimony of their approbation and the same matters in any subsequent stage of the
allowance thereof, and shall thereupon make proceedings relating thereto, shall, otherwise
an order on the said treasurer for payment of than for the purpose of re-hearing an order of
the snim which they shall so find to be due to the Master of the Rolls, be set down to be heard
the said coroner, and such order shall be a before the Lord Chancellor.
sufficient voucher and anthority to the said COTTENHAM, C.
treasurer for making the payment thereby di