proceed satisfactorily, to which it did not conceive itself competent previously. Bootle v. Blundell, 19 Ves. 504.

In Pemberton v. Pemberton, 11 Ves. 50, where an issue had been directed at the Rolls, a motion for a new trial was made, in the first instance, before the Lord Chancellor. This is altered by the 47 N. O., which directs, that every application for the new trial of any issue at law, directed by a judge of this Court, shall be first made to the judge who directed such issue. In Footner v. Figes, 2 Sim. 319, the 47 N. O. was construed to mean, that a motion for a new trial must be made before the same jurisdiction that directed the former trial, although the judge may have been removed: thus, though Sir John Leach, as Vice Chancellor, has directed the issue, the motion for a new trial was directed to be made before the then Vice Chancellor, and not before Sir John Leach, who was then Master of the Rolls. If refused by either the Master of the Rolls, or by the Vice Chancellor, the party can then apply on an appeal motion to the Lord Chancellor.

Before a notice of motion is given for a new trial of an issue, the party applying should, on an exparte application, satisfy the judge in equity, that there is a reasonable ground for sending to the judge who tried the issue for his notes of the trial. Morris v. Davies, 3 Russ. 318. On the 5th April, 1821, 6 Madd. 58, it was determined in a conference between the Lord Chancellor, the Master of the Rolls, and the Vice Chancellor, that it is not to be considered as a motion of course to obtain a judge's report of a trial at law, previous to a motion for a new trial of an issue directed out of the Court of Chancery, and that the equity judges would not call upon the learned judge who tried the cause at law, to make his report, until they were satisfied that there were reason

able grounds for entertaining the motion for the new trial. In the case which occurred this day, the Vice Chancellor acted, upon the statement of counsel who attended the trial at law, without requiring an affidavit of the facts which passed at the trial.

If the judge in equity is satisfied, he applies to the judge who tried the issue for his notes, copies of which, by a recent arrangement, are furnished by the Lord Chancellor's secretary, to the solicitors of the parties on their applying for the same. In drawing a brief for the motion, the ordering part of the decree directing the issue and the postea should be prepared in the past tense. A copy of the judge's notes should accompany this; and in some cases, copies of the issue, and of the short-hand writer's notes, are required by counsel.

On the hearing of the motion, the judge in equity reads the notes of the trial furnished by the judge at law; and the right to have a new trial is argued by the counsel on both sides. The late Master of the Rolls, by an Order of 7th July, 1828, directed, that not more than two counsel were to be heard in support of a motion for a new trial of an issue, nor more than the same number in opposition, 5 Russ. 23; but I believe this order is not now in force.

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CHAPTER IX.

ACTION AT LAW.

ON the hearing of a cause, the Court of Chancery will, in certain cases, retain the bill for a limited time, giving the plaintiff liberty, in the mean time, to proceed at law to establish his right. The cases where a bill is retained that there may be a trial at law, are where it is necessary to establish the legal right, in order to found the equitable relief; but if the subject appears to be matter of law, the bill will be dismissed. Walton v. Law, 6 Ves. 150.

The object of resorting to a court of equity, instead of trying the question at law without such assistance, is usually to enable the party to obtain a discovery upon oath, or a foreign commission, or the production of papers, or to remove some legal impediment to an equitable decision, as to prevent an outstanding term being set up, or a statute or a bankruptcy being pleaded. Thus, in Stevens v. Praed, 2 Ves. 518, the Court directed the bill to be retained, with liberty to the plaintiffs to bring an action; and it was ordered that the defendants should not set up the statute of limitations, or the bankruptcy of any party, and should admit themselves to be the surviving partners.

The Court will not afford the plaintiff this assistance on motion before the hearing. In Aston v. Lord Exeter, 6 Ves. 288, the Lord Chancellor said, that where the bill

seeks relief as well as discovery, the Court will not upon motion aid the plaintiff in proceeding at law, without the authority and control of the Court; any such proceeding must be under a decree; therefore, in such a case, a motion that the defendant should produce deeds, &c. at the trial of an ejectment was refused. And in Hylton v. Morgan, 6 Ves. 293, under similar circumstances, the Court would not on motion order that an outstanding term should not be set up by the defendant against an ejectment brought by the plaintiff.

The decree should direct the plaintiff's bill to be retained for a limited time, with liberty for the plaintiff, in the mean time, to proceed at law, touching the matters in question in the cause, as he shall be advised. But in case the plaintiff shall not proceed at law, and proceed to trial within the time aforesaid, the plaintiff's bill is from thenceforth to stand dismissed out of this Court, with costs, to be taxed, &c. But in case the plaintiff shall proceed at law, and to trial as aforesaid, within the time aforesaid, the consideration of further directions and costs is reserved, and liberty is given to the parties to apply. Seton, 356. In an action brought under the direction of the Court, the like order will be made, as to reading depositions, as in the case of issue. Seton, 356. If necessary, the Court will either order or continue an injunction to restrain defendant's taking possession. The decree also directs the production of papers.

The action is tried in the usual manner, and, after verdict, the cause is set down for further directions, in the same manner as after the trial of an issue. Where a bill filed against several defendants was retained with liberty for the plaintiff to bring an action against one of the defendants, the trial may take place during an abatement occasioned by the death of one of the other defendants, if

the decree does not direct them to attend the trial. Humphreys v. Holles, 1 Jac. 73.

A verdict in the case cited was given for the plaintiff, but nothing was said at law about interest, and on the cause coming on again in equity, interest was applied for and refused, on the ground that the jury had the whole matter before them, and that this Court would not try whether they had given enough damages, and vary the verdict. Stevens v. Praed, 2 Ves. 516.

If either party is dissatisfied with the verdict, he may apply for a new trial. The application for the new trial is not, as in the case of an issue, made to the Court of Chancery, but must be made to the court of law which tried the issue. And this is so, although this Court directed the action to be tried at law, with special directions; as that the bankruptcy of the defendant shall not be pleaded in bar, and that the parties shall be examined upon oath. Kensington exparte, Coop. 96.

CHAPTER X.

CASE AT LAW.

Ir a question of law requires to be decided before this Court is in a situation to pronounce a decree or order, it is competent for it to send a case for the opinion of a court. of law. In Horton v. Whitaker, 2 Bro. C. C. 88, the Master of the Rolls sitting for the Lord Chancellor, directed a case to the Court of King's Bench, although he