upon that issue is joined, which is directed out of chancery to be tried: and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned iffues seem borrowed from the fponfio judicialis of the Romans and are alfo frequently used in the courts of law, by confent of the parties, to determine some disputed rights without the formality of pleading, and thereby to save much time and expense in the decifion of a caufe (10). So likewife, if a queftion of mere law arifes in the course of a caufe, as whether by the words of a will an eftate for life or in tail is created, or whether a future interest devised by a testator fhall operate as a remainder or an executory devife, it is the practice of this court to refer it to the opinion of the judges of the court of king's bench or common pleas, upon a cafe stated for that purpose (1 i); wherein all the material facts a Nota eft spensio judicialis : Spondesne "quingentos fi meus fit? fpondeo, fi tuus fit. Et tu quoque fpondefne quingentos, "ni tuus fit ? fpondeo, ni meus, sfit." Vide Heinec. Antiquitat. l. 3. t. 16. § 3. & (10) The confent of the court ought alfo to be previously obtained, for a trial of a feigned iffue without fuch confent is a contempt, which will authorize the court to order the proceedings to be stayed. 4 T. R. 402. (11) In a late cafe, the mafter of the rolls fitting for the lord chancellor, directed a cafe for the opinion of the court of king's bench, faying, he thought he had authority fo to do when fitting for the lord chancellor, though not when fitting at the rolls. (Horton v. Whitaker. 2 Bro. Chan, Ca. 88.) When a cafe is heard before the mafter of the rolls fitting in his own court, on which he wishes to have the opinion of a court of law, he directs an action to be commenced by the parties in a court of law in fuch form, that the question on which he has a doubt may be decided in that fuit, and fufpends his decree till the court of law has given its judgment. The court of exchequer is both a court of law and a court of equity (v. ant. 43.); therefore if a question of mere law arifes in the course of the exercife of its equitable jurifdi&tion, the barons will decide upon it in that fuit, without referring it to another jurifdiction. VOL. III. Kk are [ 453 ] are admitted, and the point of law is fubmitted to their de- ANOTHER thing alfo retards the completion of decreesFrequently long accounts are to be fettled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and fufficient juftice. These matters are always by the decree on the first hearing referred to a master in chancery to examine; which examinations frequently last for years: and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, difproved, and over-ruled; or otherwife is confirmed, and made abfolute, by order of the court. WHEN all iffues are tried and fettled, and all references to the mafter ended, the caufe is again brought to hearing upon the matters of equity referved; and a final decree is made: the performance of which is inforced (if neceffary) by commitment of the perfon, or fequeftration of the party's estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, fitting for him, or before the master of the rolls. For whoever may have heard the caufe, it is the chancellor's decree, and must be figned by him before it is enrolled"; which is done of course unless a rehearing be defired. Every petition for a [454] rehearing must be figned by two counsel of character, usually fuch as have been concerned in the caufe, certifying that they apprehend the caufe is proper to be reheard. And upon the rehearing all the evidence taken in the caufe, whether read before or not, is now admitted to be read; because it is the decree of the chancellor himfelf, who only now fits to hear reafons why it should not be enrolled and perfected; at which time all omiflions of either evidence or argument may be fupplied. But, after the decree is once figned and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the houfe of lords. A BILL of review may be had upon apparent error in judgment, appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not poffibly be had or used at the time when the decree paffed. But no new evidence or matter then in the knowlege of the parties, and which might have been used before, shall be a fufficient ground for a bill of review. AN appeal to parliament, that is, to the house of lords, is the dernier refort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court: and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurifdiction is faid to have begun in 18 Jac. I. and it is certain, that the firft petition, which appears in the records of parliament, was preferred in that year; and that the first which was heard and determined (though the name of appeal was then a novelty) was presented in a few months after f: both levelled against the lord chancellor Bacon for corruption, and other misbehaviour. It was afterwards warmly controverted by the house of commons in the reign of Charles the fecond. But this difpute is now at reft h; it being obvious to the reafon of all mankind, that, when the courts of equity became principal tribunals for deciding caufes of property, a revifion of their decrees (by way of appeal) became equally neceffary, as a writ of error from the judgment of a [455 1 court of law. And, upon the fame principle, from decrees of the chancellor relating to the commiffioners for the diffolution of chauntries, &c. under the ftatute 37 Hen. VIII. c. 4. (as well as for charitable ufes under the statute 43 Eliz. c. 4.) Gilb. Rep. 151, 152. d Com. Journ. 13 Mar. 1704. Lo ds' Journ. 23 Mar. 1620. f Lords Journ. 3. 11. 12 Dec. 1621. g Com. Journ. 19 Nov. 1675, &c. Kk 2 an an appeal to the king in parliament was always unquestionably allowed. But no new evidence is admitted in the houfe of lords upon any account; this being a distinct jurifdiction*: which differs it very confiderably from those instances, wherein the fame jurifdiction revifes and corrects it's 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 a fuperior court is reviewing the fentence of an inferior, to examine the juftice of the former decree by evidence that was never produced below. And thus much for the general method of proceeding in the courts of equity. i Duke's Charitable Ufes, 62. k Gilb. Rep. 155, 156. THE END OF THE THIRD BOOK. APPENDIX. N° I. Proceedings on a Writ of RIGHT Patent. § 1. Writ of RIGHT patent in the COURT BARON. EORGE the fecond by the grace of God of Great Britain, France, and Ireland king, defender of the faith, and fo forth; to Willoughby earl of Abingdon, greeting. We command you that without delay you hold full right to William Kent efquire, of one meffuage and twenty acres of land with the appurtenances in Dorchefter, which he claims to hold of you by the free service of one penny yearly in lieu of all fervices, of which Richard Allen deforces him. And unless you fo do, let the fheriff of Oxfordshire do it, that we no longer hear complaint thereof for defect of right. Witness ourself at Westminster, the twentieth day of Auguft, in the thirtieth year of our reign. Pledges of profecution, Richard Roe. § 2. Writ of TOLT, to remove it into the COUNTY COURT. Charles Morton efquire, fheriff of Oxfordshire, to John Long, bailiff errant of our lord the king and of myself, greet |