Gambar halaman
PDF
ePub

the usual order for the plaintiff to make his election in which Court he will proceed." And the 13th of the same Order directs "That a defendant whose answer is excepted to, alleging that the plaintiff is prosecuting him in this Court and also at Law for the same matter, may, by notice in writing, require the plaintiff to set down. the exceptions, within four days from the service of the notice. And if the plaintiff does not set down such exceptions within such four days, such defendant is entitled as of course, on motion or petition, to obtain the usual order for the plaintiff to make his election in which Court he will proceed." 1

We have before seen that for many purposes a plea is included in the term answer; 2 but under the old practice it was decided, that neither a plea nor a joint plea and answer was so far an answer to the bill, as to entitle a defendant to move for an order for the plaintiff to elect; and it does not seem that there is anything in the present Orders to affect this decision.

The order to elect is obtained as of course, and is not within the discretion of the Court. It is made upon the suggestion that the plaintiff is prosecuting the defendant both at Law and in this Court for one and the same matter, whereby the defendant is doubly vexed.

By the terms of the order, the plaintiff and his solicitor, having notice thereof, shall within eight days after such notice make his election in which Court he will proceed, and if the plaintiff should elect to proceed in this Court, then the plaintiff's proceedings at Law are to be stayed by injunction; but if the plaintiff should elect to proceed at Law, then the plaintiff's bill is from thenceforth to stand dismissed out of this Court as against the defendant, with costs.5

When the defendant has obtained such an order, the plaintiff may move to discharge it either for irregularity or upon the merits confessed in the answer; if upon such a motion there should be any doubt as to whether the suit in Equity, and the action at Law, 1 Browne v. Poyntz, 3 Mad. 24; Leicester v. Leicester, 10 Sim. 87; Coupland v. Braddock, 5 Mad. 14.

See ante, pp. 712, 713.

3 Fisher v. Mee, 3 Mer. 45.

Royle v. Wynne, Cr. & Ph. 255.

Boyd v. Heinzehnan, 1 V. & B. 382; Jones v. Earl of Strafford, 3 P. Wms. 90. See Livingston v. Kane, 3 John. Ch. 224; Rogers v. Vosburg, 4 John. Ch.

are for the same matter, it is the usual course to refer it to the Master to inquire into that fact.1 In the event of such a reference being made, it seems that all the proceedings in both Courts are stayed in the mean time, unless the plaintiff can show that justice will be better done by permitting proceedings to any extent, in which case it is for him to ask for leave to proceed and to state his reasons. Lord Eldon stated his opinion to be, that an injunction to stay proceedings during the reference ought to be inserted as a matter of course; but that the order of reference implied an order to stay the proceedings whether it be asked for or not; and in the case of Carwick v. Young, he also said that "on a search in the Registrar's office, the result of which had been communicated to him, the general rule appeared to be, that the plaintiff is not at liberty after an order for election to proceed either at Law or in Equity, but the Court in the particular circumstances of each case will give liberty to proceed as those particular circumstances require; and accordingly in some of the orders the party has been allowed to proceed, in others, he has been directed to give judgment with an express restraint against taking out execution. There is no case in which the Court would not modify the rule according to circumstances."

In the case of Hogue v. Curtis,5 the defendant did not obtain the common order, but moved specially that the plaintiff should elect to proceed at Law or in Equity, and for an injunction in the mean time, and it being clear to the Court that the proceedings were for the same matters, an order to that effect was made.

By the 16th Order of October, 1842, solicitors are enabled to sign elections and agreements to proceed at Law or in Equity.6 The election must be left at the Report Office to be filed, and notice thereof given to the defendant's solicitor.

3

1 Young v. Lucas, cited 1 V. & B. 383.

Mills v. Fry, 3 V. & B. 9; Anon. 1 Ves. jr. 91; For. Rom. 200.

Amory v. Brodrich, Jac. 533; see, however, observations of Lord Langdale in Fennings v. Humphery, 4 Beav. 8.

* 2 Sw. 243.

5

1 J. & W. 449.

[ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small]

If the plaintiff elects to proceed in Equity, it seems that an injuction will issue without further order as of course. If the plaintiff elects to proceed at Law, the defendant becomes entitled to an order that the bill shall be dismissed with costs; but it has been before stated that the dismission of the bill, in consequence of an election by the plaintiff to proceed at Law, cannot be pleaded in bar to another suit for the same matter.2

It has before been stated, that, in contradistinction to the ordinary cases of election, there is another class of cases which are not, properly speaking, cases of election, where the proceeding at Law is ancillary to that in Equity. There the form of the application is different, that, if the plaintiff shall elect to proceed at Law, the suit may be stayed in the mean time; for in those cases the Court has a discretionary power to mould the proceedings with a view to its own decree, and for that purpose may retain the bill until the action shall have been disposed of.3

With reference to this subject it may, lastly, be observed, that a defendant may also apply to the Court to dismiss a bill with costs in a case in which the bill has upon the hearing been retained for a certain period, with liberty for the plaintiff to bring an action at Law against the defendant, and to try the same within that time, but the plaintiff does not avail himself of that liberty. The most effectual course, however, for a defendant to adopt, under such circumstances, is to set the cause down again for hearing upon further directions, and to get it dismissed with costs, which it seems he may do, although no further directions are reserved in the order dismissing the bill.5

1 Jones v. Earl of Strafford, 3 P. Wms. 90, n. B.

Ante, p. 813. See Countess of Plymouth v. Bladon, 2 Vern. 32.

See ante, p. 658; and Royle v. Wynne, Cr. & Ph. 252.

Dobede v. Edwards, 11 Sim. 454.

Stevens v. Praed, 2 Cox, 374.

69 *

CHAPTER XIX.

MOTION FOR A DECREE.

THE practice of moving for a decree is of recent date, having been recommended by the Chancery Commissioners, and authorized by the recent Act for the Amendment of the Practice of the Court. By the 15th section of this Act, it is enacted, "That the plaintiff in any suit commenced by bill shall be at liberty, at any time after the time allowed to the defendant for answering the same shall have expired (but before replication), to move the Court upon such notice,2 as shall in that behalf be prescribed by any general order of the Lord Chancellor for such decree or decretal order as he may think himself entitled to."

In consequence of this enactment, a plaintiff should now, previous to filing a replication, consider whether he cannot expedite the termination of the suit by at once moving for a decree. He cannot adopt this course until the defendants have answered, or rather until the time allowed them for answering has expired, and it is expressly provided by section 13, that, "If the Court shall grant any further time to any defendant for pleading, answering, or demurring to the bill, the plaintiff's right to move for a decree, under the provisions contained in the foregoing sections, shall in the mean time be suspended." On the other hand, it would appear that a motion for a decree by the plaintiff will be considered as an admission by him of the sufficiency of the answer. It will be observed that this mode of proceeding applies only to suits commenced by bill, and consequently cannot be adopted in suits commenced by claim.

This course of moving for a decree is a very convenient and suitable one in all cases where there is little doubt of the precise nature of the decree to which the plaintiff is entitled, and where also he will be enabled to establish his right to such a decree by affidavit, and without a regular oral examination of witnesses. By the 16th section, "Upon any such motion for a decree or de

115 & 16 Vict. c. 86.

[ocr errors]

The notice may be served on a defendant out of the jurisdiction; Meek v. Ward, 10 Hare, Appx. 55.

3

Boyce v. Cokell, 18 Jur. 770.

15 & 16 Vict. c. 86.

cretal order it shall be discretionary with the Court to grant or refuse the motion, or to make an order, giving such directions for or with respect to the further prosecution of the suit as the circumstances of the cases may require, and to make such order as to costs as it may think right." It would appear that the Court has no power upon the motion to make any other decree than that asked for by the notice of motion; but upon a motion for a decree according to the prayer of the bill, the same relief will be granted as upon the hearing of a cause.2

With respect to the evidence, it is enacted by the 15th section, that "The plaintiff or defendant respectively shall be at liberty to file affidavits in support of and in opposition to the motion so to be made, and to use the same on the hearing of such motion; and if such motion shall be made after an answer filed in the cause, the answer shall, for the purposes of the motion, be treated as an affidavit." It would appear from this section, at first sight, that the only evidence to be adduced on motions for a decree would be evidence by affidavit; but it must be recollected that by the 40th section, "Any party in any cause or matter depending in the said Court may, by a writ of subpoena ad testificandum or duces tecum,3 require the attendance of any witness before an examiner of the said Court, or before an examiner specially appointed for the purpose, and examine such witness orally for the purpose of using his evidence upon any claim, motion, petition or other proceeding before the Court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause; and any party having made an affidavit to be used or which shall be used on any claim, motion or petition, or other proceeding before the Court, shall be bound, on being served with such suit, to attend before an examiner, for the purpose of being cross-examined: Provided always, that the Court shall have always a discretionary power of acting upon such evidence as may be before it at the time, and of making such interim orders or otherwise, as may appear necessary to meet the justice of the case."

Although this section gives the power to a party in a cause to See Gwyon v. Gwyon, 1 Kay & J. 211.

Norton v. Steinkopf, 1 Kay, Appx. 10.

'An order may be obtained for the production of an original will on a motion for a decree; Wigan v. Rowland, 10 Hare, Appx. 13.

Williams v. Williams, 17 Beav. 156.

« SebelumnyaLanjutkan »