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upon that issue is joined, which is directed out of cbancery to be tried: and thus the verdict of the jurors at law determines the fact in the court of equity. These feigned issues seem borrowed from the sponsio judicialis of the Romansl: and art also frequently used in the courts of law, by consent of the parties, to determine some disputed rights without the formality of pleading, and thereby to save much time and expense in the decision of a cause (10).
So likewise, if a question of mere law arises in the course of a cause, as whether by the words of a will an estate for life or in tail is created, or whether a future interest devised by a tes- r 4>^ 1 tatof shall operate as a remainder or an executory devise, it is the practice of this court to refer it to the opinion os' the judges of the court of king's bench or common pleas, upon a cafe stated for that purposes (1 i); wherein all the material facts
a Ncta tjlsfxxjic judicialis: spo/idi/xt Heinec dr.t'iquitat, /.%. M6. ^ 3. G"
"ijumgtr.taji mtus fit? fpondeo, fi tuns Sigon. dtjudui's. .'. 11. p. 4.66. chit
"Jit. Et tugmauejpondtjne juingentii, ibid. "ni tuui ft f spondee, ni mtusft." Vide
(10) The Consent of the court ought also to be previously obtained, for a trial of a feigned blue without such consent is A contempt, which wi'i authorize the court to order the proceedings to be stayed. 4 T. R. 402.
(ii) In a late cafe, the master of the rolls sitting for the lord chancellor, directed a cafe for the opinion of the court of king's bench, saying, he thought he had authority so to do when sitting for the lord chancellor, though not when sitting at the rolls. [Horlcn *J. Wbilaker. 2 Bio. Chan. Ca. 88.) When a cafe ii heard before the master of the rolls sitting 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 such form, that the question on which he has a doubt may be decided in that suit, and suspends 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 arises in the course of the exercise of its equitable jurisdiction, the barons will decide upon it in that suit, without referring it to anothe r j urisdiction.
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are admitted, and the point of law is submitted to their decision: who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. And upon such certificate the decree is usually founded.
Another thing also retards the completion of decreesFrequently long accounts are to be settled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. 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, disproved, and over-ruled; or otherwise is confirmed, and made absolute, by order of the court.
When all issues are tried and fettled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made: the performance of which is inforced (if necessary) by commitment of the person, or sequestration 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 lordfliip, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor's decree, and mult be signed by him before it is enrolled b; which is done of course unless a rehearing be desired. Every petition for a [ 45 S 1 re'ieV"ig muft De signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing all the evidence taken in the cause, whether read before or not, is now admitted to be read; because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may
l> Stat. 3 Ceo. II. c. 30. Sec page 450.
be suppliede. But, aster the decree is once signed and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the house'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 possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowlege of the parties, and which might have been used before, shall be a sufficient ground for a bill os review.
An appeal to parliament, that is, to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by an interlocutory order or final determination in this court: and it is effetled by petition to the house of peers, and not by -writ of error, as upon judgments at common law. This jurisdiction is saidd to have begun in 18 Jac. I. and it is certain, that the first petition, which appears in the records of parliament, was preferred in that yeare; 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 second?. But this dispute is now at rest h; it being obvious to the reason of all mankind, that, when the courts of equity became principal tribunals for deciding causes of property, a revision of their decrees (by way of appeal) became equally necessary, as a writ of error from the judgment of a I. 455 1 court of law. And, upon the fame principle, from decrees of the chancellor relating to the commissioners for the dissolution of chauntries, We. under the statute 37 Hen. VIII. c. 4. (;is well as for charitable uses under the statute 43 Eliz. c. 4.)
< G'tlb. Rrp. 151, 151. 'Lords'ljourn. 3. 11. 11 Dec. ifiir.
<• Cum. Journ. 13 Mar. 1704. 8 Com. Jnurn. 19 Nov. 1675, &c.
e Lo ds' Journ. 13 Mar. I6jo. h Show. Pirl, C 81.
Kk 2 an
an appeal to the king in parliament was always unquestionably allowed'. But no new evidence is admitted in the house oflords upon any account; this being a distinct jurisdiction': which differs itveryconsiderably fromthosc instances, wherein the fame jurisdiction revises 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 superior court is reviewing the sentence of an inferior, to examine the justice os 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't Charitable Uses, 6z. k Cilb. Rep. 155, 156.
THE END OF THE THIRD BOOK.
Proceedings on a Writ of Right Patent. § i. Writ of Right patent in the Court Baron.
^/Jt ŒDIRŒŒ the second by the grace of God of Great 8fp3 Britain, France, and Ireland king, defender of the faith, ^■^ and so forth; to Willoughby earl of Abingdon, greeting. GUt command you that without delay you hold full right to William Kent esquire, of one messuage and twenty acres of land with the appurtenances in Dorchester, which he claims to hold of you by the free service of one penny yearly in lieu of all services, of which Richard Allen deforces him. And unless you so do, let the sheriff of Oxfordshire do it, that we no longer hear complaint thereof for defect of right. CCtl'tllcsS ourself at Westminster, the twentieth day of August, in the thirtieth year of our reign.
Pledges of prosecution, J^harfBoe.
§ 2. Writ of Tolt, to remove it into the County Court.
Cljarles Morton esquire, sheriff of Oxfordshire, to John JjOng, bailiff errant of our lord the king and of myself, greet
K k 3 ing,