373 Demurrer-Pleas-Parties to Suits-References for Insufficiency.

be dismissed, with costs, under the statute (a)—just as is the practice at the present day.

If the defendant were advised that the bill did not state such a case as called for an answer, he might insist upon this defence on his examination before the Chancellor, or, no doubt, by a written Demurrer; but if the demurrer were allowed, he could not obtain any costs, for it was not within the statute, and the truth of the matter had not been tried (b). If the defendant desired to state some matter not appearing in the bill, which he relied upon as a bar even to his affording any discovery, he might do so by way of Plea, and pray for judgment whether he should give any further answer (c).

One objection that the defendant might raise was, want of proper Parties. Thus, in the 8 Edw. IV., one of three executors being sued, he objected that the others ought to be parties, and the objection was allowed; "for the three," said the Chancellor, "are for this purpose but one person, and one ought not in conscience to be sued alone, lest by his ignorance of what has been done he may be damnified" (d).

[*374] *SECTION III.-Reference of Answer for Insufficiency—Amendment of Bill-Supplemental Bill-Replication-Rejoinder—Bill of Revivor-Cross Bill.

When the answer was alleged to be insufficient, if the defendant submitted, an order was made that he put in a better answer (e); if he did not submit, it was referred to the Master of the Rolls, or a Master (ƒ); the Master's report of insufficiency might be brought before the Chancellor by way of appeal (g).

A plaintiff, if he saw occasion, might amend his bill (h), or he might file a Supplemental Bill, stating additional facts, before or after answer (i).

(a) Int. al. Pickering v. Tonge, temp. Hen. VI. Cal. i. 56.

(b) See 7 Edw. IV. 14, Fitz. Damage, 44; 39 Hen. VI. 26, Brooke, Consc. 6, on the ground that the remedy was by Detinue; and see the Discourse on the judicial authority of the Master of the Rolls, p. 96, temp. Hen. VI. In the Y. Book, 7 Hen. VII. 10, No. 2, also there is a Report of the argument of a Demurrer for want of Equity. The Costs on a Demurrer, whether allowed or disallowed, are now given. See Orders, 8 May, 1845, sect. 45; Sanders, ii. p. 1000; Lord Coventry's Orders, sect. 15; Sanders, i. p. 180-1.

(c) Thus in Beek v Hesill, temp. Hen. IV. Cal. ii. 12, is a plea of the stat. 4. Hen. IV. c. 23, in Latin, though the statute is in French, against persons being called upon to answer in the King's Council, after having obtained judgment at law, and asking for judgment on this ground; it has all the formality of a plea at law.

(d) Y. B. 8 Edw. IV. 5, "Jeo adjugera sur ceo come Judge de Conscience." Still ington, Bishop of Bath and Wells, was Chancellor.

(e) See Anon. 36 Hen. VIII. fol. 165.

(f) Tothill, 49. In Sir N. Bacon's time, the plaintiff took out a subpœna for a better answer, if the answer were found to be insufficient, but afterwards an attachment was issued.

(g) A. 1592-3, fo. 605, an answer having been reported to be insufficient by one of the Masters, on the application of the defendant's council alleging that a Judge of Common Law would be a better judge of the sufficiency of the answer, it was referred to Mr. Serjeant Owen, together with Dr. Forth, a Master.

7th June, 1794 - Subpoena awarded against defendant, to answer so much of the bill as the Master shall find to be insufficiently answered, lib. A. fol. 274.

(h) See Totty v. Norton, temp. Edw. IV. Cal. i, 84, and 14 Edw. IV. Subp. 15.

(i) The only early printed record of such a bill is of one before answer, and praying that the defendant might be examined on that together with the original bill, temp. Hen, VI. Cal. ii. 24; et v. 16 Edw. IV. Ellesmere, 70.

Amended Bills-Replications-Rejoinder-Rules of Pleading. 374

On the death of a party, and the consequent abatement as it is called of the suit, the mode of reviving the suit was then, as now, by a Bill of Revivor by or against the representatives of the deceased party. In the time of Elizabeth such bills against the heir, executor, or administrator of a deceased party were well known (a). The marriage of a female plaintiff, then, as now, abated the suit, and rendered a Bill of Revivor by the husband and the wife necessary (b).

After the defendant's answer had been obtained, whether given personally or returned by commission, the next step was, unless the matter were settled, for the plaintiff to file a Replication. This might be by way of general (c) denial of the allegations in the answer, or it might, till the practice was altered in this respect, be special, introducing other facts and circumstances to avoid the effect of the answer, and to support the plaintiff's case (d).

The defendant might then put in a Rejoinder, either general or *special (e), and there is an instance, temp. Edward IV., of a Surrejoinder (ƒ).

[*375]

If the defendant had any claim to set up against the plaintiff by way of defence, or desired to have the advantage of a discovery from the plaintiff in aid of his defence, he might file a Cross Bill against the plaintiff (g).

No record remaineth in the King's Court, says St. Germain, of the bill or any other proceeding in the suit (h), that is, none that was equivalent to a record at common law; but the proceedings were preserved, as we know from many of them being extant, though in very few of the early ones are all the proceedings to be found.

SECTION IV.-Rules of Pleading-Repression of Scandal, Impertinence and Slander-and of Bills for Trifling Matters.

Attempts were made by the practitioners to introduce into the Court of Chancery the technical rules of pleading which prevailed in the courts of law (i); but the Clerical Chancellors pertinaciously and successfully

(b) A. 1590, fo. 214.

(c) Int. al. Baker v. Parson, temp. Edw. IV. Cal. ii. 50.

(d) The replications generally are of this nature, down to the time of Elizabeth. In Shakespere, of Stratford-on-Avon, (father of the great Shakespere,) v. Lambert, the replication to an answer, setting up a mortgage and default of payment, states a tender according to the proviso, Cal. i. 145.

(e) In Unell v. Fylding, temp. Edw. IV. Cal. ii. 66. the Rejoinder is general. (f) In Worsley v. Bettescombe, Cal. ii. 47. Special Replications (see Lord Bacon's Orders, infra) and all subsequent pleadings on the part of the plaintiff, have since been got rid of, by suggesting the defendant's

case originally, or by way of amendment in the bill, and meeting it by way of charge, to which the defendant may, in the original or further answer, give the answer which originally would have been contained in a rejoinder.

(g) Berryngton v. Elyngham, temp. Hen. VI. Cal. ii. p. 11; the original matter had been brought into Chancery by Hab. Corp. cum causa. Et v. ib. p. 57, Saunder v. Saunder, Bill to quiet possession, and to compel party to execute a release of certain lands.

(h) Doctor and St. i. c. 17, p. 50. (i) Cal. i. p. 100, there is a rejoinder insisting that the Replication was a departure, temp. Edw. IV.; the same objection taken and overruled, temp. Eliz. Reg. Lib. B. 1574, fo. 48.

375 No Decree merely on Default-Impertinence-Scandal.

resisted their attempts, "car il seont la," said the Chancellor, "secundum potestatem absolutam-le common ley secundum potestatem ordinatam" (a).

"In the Chancery," said Chancellor Stillington, who, though in other respects, perhaps, not a very estimable person (b), seems to have done more than any other Chancellor before his time, towards settling the rules of the court, "a man shall not be prejudiced by mispleader, or for default of form, but according to the verity of the matter; we have to judge according to conscience, et non secundum allegata" (c). *The [*376] Chancellor added (in the case, 9 Edward IV., before cited): "If a man should allege by his bill that one had done him wrong, and the defendant should say nothing, yet if it should appear to us that the defendant had done no wrong to the plaintiff, he shall not recover." So says Lord Ellesmere (d), the Chancellor must judge according to truth, and not upon default of the party as at common law. The bill is now read to the court, though pro formâ only, before making a decree pro confesso (e). Had not the Clerical Chancellors resisted with effect the introduction of the common law system of pleading, much of the utility of the court would have been destroyed; this is one of the many advantages that resulted from the court having been founded by persons who took for their guide the principles of general jurisprudence, and looked only to the attainment of what they considered to be substantial justice. But this laxity of pleading did not apply to a Plea, the object of which was to stop the suit; to this kind of pleading a strictness even beyond the law seems always to have been applied (ƒ): as a matter of discovery, though not of pleading, a defendant was bound to answer with precision to those facts which were within his own knowledge (g).

Very stringent measures were taken to prevent impertinent matter from being introduced into answers, and other subsequent pleadings, of which the orders at the foot will serve as sufficient illustrations (h).

(a) Brooke, Conscience, 3; Cary, p. 3. (b) Vestig. Ang. ii. 363, 4; Lord Campbell gives Stillington rather a favorable character, i. 388. 387.

66

(c) Y. B. 9 Edw. IV. 14, No. 9; Bro. Consc. 6; Jurisd. 5, S. C. On an objection being taken, 9 Edw. IV. fo. 41, No. 36, to the want of certainty in a bill, the same Chancellor said, "Sir,-In this Court it is not requisite that the Bill should be in all respects certain, according to the solemnity of the common law, for here it is only a petition," Vin. Abr. iv. 361. The Lord Chancellor, or Lord Keeper's authority is not tied or bound by any certain rule of pleading," Reg. Lib. A. 1594, fo. 292; Lord K. Puckering on a rehearing of Sir C. Hatton's decree. There are, however, now certain rules which have in view to prevent either party being surprised, and to preserve regularity and a wholesome degree of precision.

(d) Page 47.

(e) The modern practice for taking bills pro confesso is regulated by the statute 1 Will. IV. ch. 36, sec. 15; Sanders, i. 738, et seq. And by the subsequent orders of the

11th April, 1842, Sanders, ii. 906, and the 8th May, 1845, p. 987, et seq.

(f) See Mitford on Pleading, p. 294; the Plea of the Stat. Hen. IV. in the Calendars before referred to, is, as before observed, very formally drawn, sup. p. 373.

(g) Executors of Sir W. Cordel, M. R., v. King, Reg. Lib. B. 1582, fo. 376, et vide Brooke, Conscience, 26; Fitz., Subpœna, 11 and 12.

(h) The following have been selected as calculated to give some notion of the despotic authority which was exercised by the court on the subject:

Between William Mylward, Plaintiff.
William Weldon and others, Defendants.
And between William Weldon, Plaintiff.
And William Mylward, Defendant.
8th February, 1596.

"And where Richard Mylward, the plaintiff's son, did confess that he himself did heretofore draw the long Replications of six score sheets of paper, which hereto fore was put into the court by the plaintiff to the answer of the defendants; in which Replication much impertinent and idle

Penalties for Impertinence and Slander.

*There are some orders in the reign of Elizabeth and her successors that the officers should never again file any pleading signed by counsel who had drawn pleadings grossly impertinent (a). By Lord Bacon's order, if any pleading were found to be of immoderate length, both the party and the counsel who signed it were to be fined. Slander (b) was to be punished by commitment and ignominy (c). Punishment was inflicted, besides costs, against parties who caused vexatious bills to be

377

Interlocutory Applications—Preliminary References.

filed (a); and bills for trifling matters, which, from the multiplied orders we find on the subject must have been numerous, were frequently dismissed as unworthy the dignity of the court (b).

[*378] *SECTION V.-Interlocutory Applications, &c.— Subpœna duces tecum-Production of Documents-Receiver.

The interlocutory applications by motion and petition (c) which could be made before answer, might, of course, be made after answer; the answer would furnish ground for many motions that could not be made before, as for the production of deeds and documents admitted in the answer (d). It would seem that, in the time of Elizabeth, it had become the practice to issue a Subpæna duces tecum to compel the production of documents admitted by the answer to be in the defendant's possession. Cause might be shown against it on the return (e), and the same course was adopted for enforcing the payment into court of money admitted to be in the hands of the defendant, or for which he appeared by his answer to be accountable (f). So the plaintiff might apply to have the property sequestered by the appointment of a Receiver (g).

Certain times were fixed, anciently it would seem always by special orders, within which each proceeding should take place, which might be enlarged by special application (h). Afterwards times were fixed by general rules of practice as will be noticed hereafter.

SECTION VI.-Preliminary References—Evidence.

In early times, commissions were in many cases issued directed to certain persons; sometimes a bishop (i), usually to judges (k), to examine

(a) 4 & 5 Eliz. fo. 45. Sometimes the order was made against the counsel as well, Payne v. Webb, 1 May, fo. 155.

(b) Thus for a mare and colt, value 40s. 7 & 8 Eliz. fo. 415; a gelding, bridle, and saddle, 8 & 9 Eliz. fo. 322; 3 kine and 20 sheep, B. 1570, fo. 11; a debt of 40s., no title to land being in dispute, 8 & 9 Eliz. 187. It was against this description of bills that Sir C. Hatton's observations, after noticed, were probably in a great measure directed: the prevalence of such suits will in some degree account for there having been such a large number of subpoenas issued in this and the beginning of the subsequent reign. Lord Bacon made a general order to repress the practice of filing such bills.

(c) Mr. Norbury, temp. Jas. I., Harg. L. Tra., complains of interlocutory applications being then the great cause of delay.

(d) Pigot, J., 9 Edw. IV. 41, Fitz. Subp. 12; Brooke, Consc. 3, recognizes the jurisdiction of the Court of Chancery to compel the production of deeds; in that case the plaintiff and defendant had a common interest in them; and see Reg. Lib. B. 1575, fo. 326; A. 1576, fo. 31, &c. The jurisdic

tion as to the Discovery and Production of documents generally, will be noticed under a separate head.

(e) Reg. Lib. A. 1576, fo. 31; et v. B. 1575, fo. 326.

(f) Reg. Lib. B. 1583, fo. 489; this is now done by motion, and the order enforced by process of contempt or commitment.

(g) 20th May, 1588, order for sequestering the property pending the litigation; there are many others, both as to real and personal estate. In Reg. Lib. A. 1590, fo. 109, is an order, unless cause shown, for a receiver of a moiety of the profits of a theatre claimed by the plaintiff; the defendant had put in a demurrer, and it had been overruled. See additional Note at the end of this chapter.

(h) As for time to appear and answer, and for a commission to take the answer, Cal. ii. 102. 106; i. p. 110; for time to produce witnesses, ib. i. 94. 96; there are several others. See Sir Henry Seton, p.

121.

(i) Willebye v. Veyle, Cal. ii. 16, directed to the Bishop of Norwich; one of the parties was in prison there.

(k) Int.al. Foly v. Norton, temp. Edw. IV.