required. It appears, however, that, in such cases, previous notice of the motion must be given.2

The order nisi for a sequestration being drawn up, passed and entered, must be served personally in the same manner as a similar order in mesne process, unless the case happens to be one of those in which, as we have seen, personal service will be dispensed with, and substituted service directed. It seems that, where there has been a due service of the original writ upon a person entitled to the privilege of peerage in England, and afterwards he goes into another country (viz. Scotland), personal service of the order nisi upon him there will be good.*

The order nisi, for a sequestration against a peer or member of Parliament, will be made absolute, upon motion or affidavit of service of the order nisi. With respect, however, to peers and members of Parliament, the practice of obtaining a vesting order under the Trustee Act is equally applicable.

The method of enforcing the performance of a decree or order against a corporation aggregate has been already described.5

When the decree is to pay money to a party in person, the letter of attorney. authorizing the person making the demand must be produced, and the execution of it, as well as the demand, proved by affidavit. Crawley v. Clarke, 3 Bro. C. C. 373.

2 Ibid.

Ante, pp. 466, 480 et seq.; Shuttleworth v. Earl of Lonsdale, 2 Cox, 46; Crawley v. Clarke, ubi supra.

Davidson v. The Marchioness of Hastings, 2 Keen, 509.

Ante, pp. 469, 481; Angell & Ames Corp. § 667 et seq. and notes. With reference to corporations established for private emolument, Chancellor Bland, of Maryland, in giving judgment in McKim v. Odom, 3 Bland, 422, said that "evils and embarrassments must arise from a rigid adherence to the notion that such a corporation can only be forced to respond to a suit against it by distringas and sequestration of its property. Take the case of a turnpike road company that had refused to answer a bill in Chancery. The road itself could not be taken and closed by virtue of a distringas or sequestration, because that, as one of the highways of the republic, it could not, and ought not to be obstructed by any process whatever against those, whose only interest in it is the toll they are allowed to exact in consideration of keeping it in repair. Consequently, in this instance, the only method by which the Court could effectually levy upon its property, as a means of enforeing an answer, would be to appoint a sequestrator or receiver, to take the place of the company's toll-gatherer, at each gate along the whole line of the road."

It has always been the practice of the Court in certain cases, either when legal rights were involved, or where there was great difficulty in deciding upon facts, to direct the matter to be tried by a jury, in a Court of Common Law; for which purpose an action is ordered to be brought, and a feigned issue raised. The

1 In Massachusetts, "the Court may frame issues of fact to be tried by a jury, in an Equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending, at the bar of the Supreme Judicial Court or the Superior Court." Genl. Sts. c. 113, § 22. And by rule of Court," whenever it shall be necessary or proper to have any fact tried and determined by a jury, the Court will direct an issue for that purpose, to be framed by the parties, containing a distinct affirmation and denial of the points in question, or in such form as the Court shall order; and the issue thus formed and joined will be submitted to a jury." Rule 23 of the Rules of Practice in Chancery.

In general, according to the practice in Chancery, a cause will be brought to a formal hearing, before an issue is directed. But in a case where it was conceded, that the only material question was that of sanity, a fact peculiarly fit and suitable for a trial by jury, the Court said: "There seems to be no objection to ordering an issue, before a general hearing." Eames v. Eames, 16 Pick. 141; Charles River Bridge v. Warren Bridge, 7 Pick. 344. See Waterman v. Dutton, 5 Wis. 413; New Orleans G. L. & B. Co. v. Dudley, 8 Paige, 452.

Such issues may be directed in Massachusetts by the Court when holden by a single Judge. Eames v. Eames, ubi supra; Genl. Sts. (Mass.) c. 113, § 6. See Duncan v. King, 1 Overton, 79. It was formerly held, that they should be framed and filed at a jury term, and not at a law term of the Court. Coffin v. Easton, 12 Cushing, 107.

But since the recent enactments in Massachusetts, which confer on the Court and on the Justices thereof full power to make and enter all decrees in Equity, either interlocutory or final, at any time, irrespective of the regular terms established by law for the transaction of business on the common law side of the Court, the Court of Chancery is always open for the direction of such issues. See Thompson v. Goulding, 5 Allen, 83, 84.

The ordering of an issue to a jury, being within the discretion of the presiding Judge, is not open to exception. Ward v. Hill, 4 Gray, 593; Crittenden v. Field, 8 Gray, 626.

No appeal lies from an order of the Court directing an issue, or for refusing one upon the application of either party. Black v. Lamb, 1 Beasley, (N. J.) 113.

practice still continues; but there are some changes which will render it of less frequent occurrence. By the Chancery Amendment Act, in cases where the Court used to decline granting equitable relief until the legal title or right of the parties seeking such relief was established at Law, it may itself determine such title or right without requiring the parties to proceed at Law. Moreover, by the 39th section of the same Act, the Court is enabled, as we have seen,2 to require the production and oral examination before itself of any witness or party in the cause. These provisions will in many cases prevent the necessity of directing an action or issue. The tendency also of modern times is opposed to the increased length of litigation caused by the practice.3

The attention of the reader has already been called to the circumstances under which the Court will be induced to permit such an issue for the purpose of trying a fact, positively denied by the answer, but which is supported by the evidence of one witness only, with corroborating circumstances. There are many other cases, however, in which issues have been directed; thus, if there is contradictory evidence, between persons who are of equal credit, and have had equal opportunities of information, and the evidence is so equally balanced on both sides, that it becomes doubtful which scale preponderates, the Court has frequently directed an issue, in order to relieve and ease its own conscience, and to be satisfied, by the verdict of a jury, of the truth or falsehood of the facts controverted.7

1 15 & 16 Vict. c. 86, § 62.

2 Ante, p. 895.

3 See Bassett v. Johnson, 2 Green Ch. 417.

Ante, p. 840.

5 In New Jersey, the Court of Chancery may send issues to a jury of its own motion. Black v. Lamb, 1 Beasley (N. J.) 108; Trenton Bank v. Woodruff, 1 Green Ch. 117; Bassett v. Johnson, 2 Green Ch. 421, 422. See Smith v. Croom, 7 Florida, 180.

• See O'Brien v. Bowes, 4 Bosw. (N. Y.) 657.

Mad. P. & P. 621; Stokes v. Edmeades, 1 M'Clel. & Y. 436; Tappan v. Evans, 11 N. Hamp. 311. In this case last cited, Parker C. J. said: "In a controversy about matter of fact, the Court of Chancery, if it have jurisdiction, may direct an issue, to try the fact by a jury; although a verdict is not, perhaps, indispensa ble, and the Court might itself find the fact. The Court directs an issue for the better information of its conscience. If fully satisfied as to the evidence, they will not send it to a trial at law. Issues are frequently directed when matters of law are mixed with matters of fact. Where the uncertainty as to the validity of

There are cases, also, where the Court has directed issues, although there was no contradictory evidence, or any matter to a title arises from questions of fact, it is most proper that they should be tried by a jury." 11 N. Hamp. 334; Seymour v. De Lancey, 1 Hopk. 449; Pomeroy v. Winship, 12 Mass. 514; Lapresse v. Falls, 7 Ind. 692; Fisher v. Porch, 2 Stockt. (N. J.) 243; McDowell v. Bank of W. & B. 1 Harring. 369; Munson v. Reed, 1 Clarke, 580; Hood v. Marquess, 4 Call, 416; Townsend v. Graves, 3 Paige, 453; Knibb v. Dixon, 1 Rand. 249; Douglass v. M'Chesney, 2 Rand. 109; Marshall v. Thompson, 2 Munf. 412; Galt v. Carter, 6 Munf. 245; Boyd v. Hamilton, 6 Munf. 459; Cocke v. Upshaw, 6 Munf. 464; Dale v. Roosevelt, 6 John. Ch. 355; Miller v. Wack, 1 Saxton (N. J.), 205; Decker v. Coskey, 1 Saxton (N. J.), 427; Apthorp v. Comstock, 2 Paige, 484; Lee v. Beatty, 8 Dana, 207; Nice v. Purcell, 1 Hen. & Munf. 372. Issues should be directed only in those cases where there is a want of evidence, or where the evidence is contradictory, or so nearly balanced as to render an open and rigid cross-examination of the witnesses before a jury necessary. Townsend v. Graves, 3 Paige, 453. An issue has been ordered to try a question of fraud. Hooe v. Marquess, 4 Call. 416. See Stewart v. Inglehart, 7 Gill & John. 132. So, to try whether a will, said to have been lost, was ever, in fact, executed, and if so, what were its provisions. Brent v. Dold, Gilmer, 211. So, to try whether a deed was duly and fairly executed. Anon. 1 Desaus. 124; Pomeroy v. Winship, 12 Mass. 514; Dodge v. Griswold, 12 N. Hamp. 573. So, to try the title to land before the purchaser was compelled to accept the title. Bowman v. Middleton, 1 Desaus. 159; Fox v. Ford, 5 Rich. Eq. 349. So, to try the question of the marriage of parents and the legitimacy of a child. Vaigneur v. Kirk, 2 Desaus. 640. So, to try the genuineness of a deed, forming a link in the chain of title, on a bill for the specific performance of a purchase of land. Delancey v. Seymour, 5 Cowen, 714; S. C. 1 Hopk. 436. So, to try whether an absolute bill of sale was intended only as a security. Knibb v. Dixon, 1 Rand. 249. So, to try whether the sale of a horse or other property was really intended as a shift to evade the statute against usury. Douglass v. M'Chesney, 2 Rand. 109. See Ward v. Hill, 4 Gray, 593; New Orleans G. L. & B. Co. v. Dudley, 8 Paige, 452. So, to try whether the testator was sane, or seriously intended the proposed will, as such, or has subsequently nullified it by a republication of a former will, or by a revocation. Banks v. Booth, 6 Munf. 385. So, to try the fact of a secret partnership. Cocke v. Upshaw, 6 Munf. 464. So, to try a claim in a creditor's suit. Ringgold v. Jones, 1 Bland, 89. So, to try the question of title, in partition. Larkin v. Mann, 2 Paige, 27. So, to try the validity of a will of real estate, where the question arose collaterally, and the heir insisted on the invalidity of the will, in his answer. Colton v. Ross, 2 Paige, 396. So, to try a question of usury, arising out of disputed facts, upon the determination of which, the right of the plaintiff to a decree against the defendant depended. New Orleans G. L. and B. Co. v. Dudley, 8 Paige, 452. So, to ascertain the damage sustained by the purchaser, by the loss of twenty-eight acres of land, recovered from him by a better title. Smith v. Martin, 4 Desaus. 149. So, to try whether the execution of a certain deed was an act of fraudulent preference in contemplation of bankruptcy. Grugeon v. Gerrard, 4 Younge & Coll. 119. The question as to

embarrass the Court, or to prevent its coming to an immediate decision upon the evidence before it; these cases, however, are principally confined to those in which the Common Law invests a party filling a particular situation with certain rights, of which it is the object of the suit to divest him. Thus, an heir at law is so far regarded by the Courts, that it is considered, that all freehold estates of which his ancestor died seised, or to which he was entitled at the time of his death, are vested in him, unless it is shown that the ordinary course of descent has been interrupted, by the ancestor having executed a will; and so strongly do Courts of Equity consider the claim of the heir, that they will not, if the heir objects to it, even where the evidence before them is such as to leave no ground for doubt upon the subject, take upon themselves to establish a will affecting real estate, without previously having the opinion of a jury upon an issue devisavit vel non.1 The modern practice of executing the trusts of a will, without declaring it established, has, however, diminished the importance of this rule without in terms repealing it. In the case of a rector, his Comwhether an assignment of a mortgage was intended as an absolute one, or as a mere authority to enable the defendant to collect, being doubtful on the evidence, the Court directed an issue in Fisler v. Porch, 2 Stockt. Ch. (N. J.) 243. The fact that there has been a verdiet of a jury, in an ejectment suit between the same parties, and upon the same question, may be a sufficient reason for refusing to award a feigned issue, in a case where a feigned issue would otherwise have been proper. Van Wyck v. Seward, 6 Paige, 62. Where the amount in controversy is small, and the facts can be satisfactorily ascertained by discovery, an issue at law will not be awarded. Garwood v. Eldridge, 1 Green Ch. 290.

1 Lord Fingal v. Blake, 1 Moll. 113; Tucker v. Sanger, 1 M'Clel. & Y. 424. See Banks v. Booth, 6 Munf. 385; Van Alst v. Hunter, 5 John. Ch. 148; Rogers v. Rogers, 3 Wendell, 515; Middleton v. Sherburne, 4 Younge & Coll. 358; Sneed v. Ewing, 5 J. J. Marsh. 460. An issue will be directed on satisfactory proof adduced, to try whether a will, said to be lost, was ever in fact executed, and what were its provisions. Brent v. Dold, Gilmer, 211. See 2 Rev. Stat New York, 67.

In New Jersey, it is held that there is no reason for the Court submitting the question of fact, whether a will has been cancelled, or surreptitiously destroyed, to a jury, where the evidence is such as to create no embarrassing doubt in the mind of the Court, although insisted on by one of the parties to the suit. Hildreth v. Schillinger, 2 Stockt. Ch. (N. J.) 196.

Courts of Chancery have no original jurisdiction to try the validity of wills of personal estate. See Rogers v. Rogers, on appeal, 3 Wendell, 503; Colton v. Ross, 2 Paige, 369. And in many of the States the decision of the Courts of Probate is conclusive on the validity of wills, both of real and personal estate, and is not re-examined in any other Court. See ante, 871, note.