« EelmineJätka »
PROCEEDINGS FROM THE COMMENCEMENT TO THE CLOSE OF AN ORDINARY SUIT.
The essential Steps in Civil Litigation in all Courts-PracticeSolicitor's Retainer-Instructions for Bill-Subpoena-Time for appearing-Appearance by Plaintiff for Defendant-Demurrer-Plea-Disclaimer-Answer-Cross Bill-Time to plead, answer, or demur-Traversing Note-Instructions for Answer-Dedimus to take Answer-Taking and transmitting Answer-Plaintiff's Proceedings on Answer coming in-Exceptions to Answer-Setting down Cause on Bill and Answer -On objection for want of Parties-Replication-Examination of Witnesses-Interrogatories-Examiners-Commission to examine Witnesses-Proceedings preparatory to and under it-How Examination conducted-Depositions-Enlarging and passing Publication-Setting down CauseHearing-Settling Minutes-Decree-Reference to MasterIssue-Action at Law-Case-Hearing on further Directions -Further or Final Decree-Proceedings on Demurrer and Plea-As to Plaintiff dismissing his own Bill-Motion to dismiss for want of Prosecution-Effect of Dismission-As to the Mode of enforcing the Performance of a Decree. THE object of all civil litigation is either to obtain a right which is withheld, or redress for an injury sustained through the wrongful act of another, and for this purpose resort must be had to a proper judicial tribunal. There are certain steps taken in common by all Courts, in order to arrive at a just conclusion respecting the rights of the litigant parties, none of which could be omitted without opening a door to the grossest injustice; these essential steps are the follow
ing. When a party brings into Court a complaint against another, the party complained of is summoned to appear in order to hear the complaint made against him and to answer it; the party complaining states his complaint, and the party complained of gives his answer to it, so that the whole of what each has to allege is heard: when this is done, it will be found that the facts of the case are either admitted or controverted-if the former be the case, the cause is ripe for the decision of the Court, which will pronounce such judgment as the law warrants upon the facts stated by the parties; but if the facts be disputed between them, the Court takes steps to satisfy itself, by proper means, of the true state of the disputed facts, and that being ascertained, it proceeds, as in the former case, to pronounce such judgment as the law warrants upon the facts now ascertained; and when it has pronounced its judgment, it goes on by means of such powers as the law has invested it with to enforce that judgment.
The foregoing are the essential proceedings in every Court, but each differs, more or less, in the manner, in the order, and in the times in which these steps and proceedings are by its rules to be taken; and it is this difference which constitutes what is called the Practice of Courts. The practice of the Court of Chancery is the subject of this treatise, and though it is intended for a branch of the profession beyond the scope of whose duties it lies to conduct most of the practical parts of a suit, yet in order to understand clearly those parts of the practice which are within that scope, it will be necessary and proper, and tend to the better understanding of the whole, that the entire proceedings in a suit should be stated, bringing more prominently forward, and treating at greater length of that which the country solicitor must attend to.
It will be proper to mention here, that before commencing a Chancery suit, the solicitor should take care to have a written retainer, or at least good evidence
of his authority to take that step: this subject is, however, enlarged upon at the end of Chapter X. post.
The method of instituting a suit in the Court of Chancery is by filing a bill, stating all the circumstances which give rise to the complaint, and praying such relief as the nature of the case may require. This bill is in practice always prepared by counsel, and it is the first duty (and a very important one) of the solicitor for the intended plaintiff to prepare the instructions from which counsel is to draw the bill, It is scarcely necessary to say, that they should be full and particular, for if they be defective, the consequence will most probably be, that an unnecessary expense will be incurred, and useless delay will take place. Wherever the solicitor has a doubt whether his client is entitled to the relief intended to be prayed, it will be a wise step to state a case for the opinion of counsel, before proceeding to have the bill prepared; for when instructions are laid before an equity draftsman to draw a bill, (his opinion on the case not being asked,) he will in general draw it, whatever opinion he may have of its ultimate fate; the bill will be filed, and the defect in the case will not perhaps be discovered till some progress has been made in the suit, or perhaps not even till the hearing, when the bill may be dismissed with costs. In stating a case for the opinion of counsel, it is the practice of some solicitors to set out the substance or portions of deeds or documents in the case itself, and besides this, actuated perhaps by a fear that they may not have been set out correctly or sufficiently, to send copies of the same deeds and documents to accompany the case: this is a bad practice, as it unnecessarily increases the fees to be given to counsel. If a solicitor feels confident that he understands the case sufficiently to be able to set out in the statement of it what is necessary, he need not send with it full copies of the documents; if he be doubtful of his capacity to set them out correctly in the case in an abbreviated shape, he should
COMMENCEMENT TO THE
not set them out at all, but merely refer to the copies which he intends to accompany the case.
When the bill has been drawn, the London agent will, if necessary, send it down for perusal; and the country solicitor having perused it, and satisfied himself, so far as he can, of the correctness of the facts stated in it, and supplied any blanks there may be, should return it to his agent, and instruct him to get it ingrossed and filed (a), stating at the same time whether he desires the proceedings in the suit to be before the Master of the Rolls, or either and which of the Vice-Chancellors, and instructing the agent if necessary to retain counsel, also desiring him to send down subpoenas, (or if the number of defendants does not exceed three,) a subpoena, to be served on the defendants: this he will do, and when the subpoenas are received, a copy of each, and of the indorsement on it, must be served on each defendant named in it: the service must take place within twelve weeks after the teste of the writ, otherwise it will be of no validity: at the time of the service the original must be produced and shown to the person to whom the copy is delivered the service should be either personally on the defendant, or at his dwelling-house, on his wife, son, daughter, servant, or some member of his family; or at his usual place of abode, on some one having some connexion with him; for instance, if he live in lodgings, on the master or mistress of the house, or their servant there: it is desirable that the service should be made in one of the ways just mentioned, because if it is, and the defendant should neglect to enter an appearance in due time, the plaintiff will be enabled to enter an appearance for him without an application to the Court; but it may happen that the service cannot be made in one of the ways just men
(a) It is the duty and privilege of the agent to ingross the bill, but as it is nevertheless sometimes done in the country, and
as the formal conclusion is never given in the draft bill, the forms of conclusions of the bills most frequently filed are given in the Appendix, section 1.
LIT OT TZTLJIVIMMOD
and if it be on his clerk or shopman at his counting-house or not often occur shop; it will cannot be made in one of the foregoing ways, should it so happen, the service must be made in the best manner it can be done, so as to render it probable the subpoena will come to the defendant's
in any other wedge; but where the service is made
in any other mode than personally, or at the dwellinghouse or usual place of abode, the plaintiff will not be in a condition to enter an appearance for the defendant (in the event of his not appearing) without an application to the Court; on which application the Court will judge of the sufficiency of the service to entitle the plaintiff to enter an appearance for the defendant. Where the subpoena is against husband and wife, service on the husband alone is sufficient for both, except the relief sought by the bill be against the wife's separate estate, in which case it will be prudent to serve the wife also. With respect to the service of the subpœna on a defendant who is out of the jurisdiction of the Court, or who has absconded to avoid service, it will be treated of in Chapter X.
The defendant is bound to appear within eight days after being served with the subpoena, exclusive of the day of the service; for instance, if he be served on Monday, he must appear on the Tuesday week fol lowing; if on Saturday, on the Monday week following; and his solicitor should instruct his agent to appear in time, mentioning to him the names of the parties and the day the subpoena was served, and the agent will then appear and obtain an office copy of the bill, and send down a copy of it. The defendant's solicitor may also at the time of instructing the appearance, if the suit be of sufficient importance, desire his agent to retain counsel.
If the defendant, after being served with the subpoena, do not appear, the plaintiff's solicitor must send an affidavit of the service (a) to his agent, and
(a) See the form in Appendix, sect. 2. It may here be convenient to observe, that all affidavits in Chancery must now be