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minutes, p. 27. It does not appear to have been published in any edition of colonial laws."
(S 33 partially enacted in 9 37 R. S.)
Original note. “In 4 J. Ch. R. 183, and 5 ib. 276, Chancellor Kent suggested, that the court of chancery ought not to take cognizance of a cause, unless the matter in controversy exceeded fifty dollars in value. In 1 Hopkins, 112 and 119, Chancellor Sanford held, that the rule of the English chancery, in the absence of any constitutional or statutory provision, was the law of the court; and that where the amount exceeded £10 sterling, the court was bound to take cognizance of the cause
Little doubt can exist that some limit should be fixed, by which ruinous litigation may be prevented. It is also respectfully suggested, whether the limit might not with propriety be fixed at a higher sum, such as five hundred dollars, and disputes concerning property of a less value, be referred exclusively to the equity courts of the circuit judges? The court of chancery would be much relieved, while its jurisdiction would be preserved, as the same subject might be brought before it at the instance of either party, by appeal instead of an original bill. It is believed that the convenience of suitors, the despatch of business, and economy in expense, would be promoted by such a measure.
"As to the last clause of the section, see post. Title III, § 3.”
(S 35. Same as enacted 39 R. S. except that the words “with the exception above stated,” after the words "in trust for him,” were inserted by the legislature.]
Original note to 34, 35. “This section and the last, are founded on the decision of Chancellor Kent, and of the court of errors, in the case of Hadden and Spader, 5 Johns. Ch. Rep. 280; 20 John. Rep. 554. The doctrine established in those cases, has been doubted, and qualified in a subsequent case in court of chancery, (Donovan vs. Finn, 1 Hopkin's Rep. 59;) but it is understood that it is still adhered to in the court of errors. Deeming it important to settle the law, and to preserve the rule as laid down in the case of Hadden and Spader, the Revisers have proposed the above sections.”
(S 36. Substantially enacted § 40 R. S.] Original note. “This is conformable to the uniform course of the court of chancery, which always follows the rules of law, as to allowing a set off. 3 Johns. Ch. Rep. 351; 4 ib. 11, 287.”
(S 40. Same as enacted § 45 R. S.] Original note. "1 R. L. 326, 15. By Chapter VIII of the second part of the revision, the powers of the court of chancery in suits to annul marriages, are defined and extended. The exception in the above section is deemed highly expedient."
IS 41. Same as enacted § 46 R. S.] Original note. “The chancellor now possesses the power of altering and amending the practice; but that part of the section which directs a revision of the rules, is new. It is, however, believed that it will be found of great practical utility. The Revisers are of opinion, that improvements may be made in the practice of the court of chancery; but they are also entirely convinced, that amendments of this sort should be made gradually, and with great deliberation. The chancellor will be better qualified to
introduce such alterations as may be useful in the course of proceeding, than any other person. By imposing upon that officer, the duty of a periodical revision of the general rules of his court, with a view to the objects above indicated, the legislature will intimate their desire that such improvements should be made, and give a more extended authority for effecting them, than is now possessed.”
[S 42, 43. Substantially same as $ 47 R. S. except that in the sections as reported, the chancellor was empowered to impose a fine, which, when collected, was to be paid into the fund belonging to the court of chancery, or to the party injured by such unnecessary prolixity, as the chancellor might direct.]
Original note. “The immoderate length to which bills and other proceedings may be extended in the court of chancery, has always been a serious evil in the practice of that court. From the nature of things, the length of the pleadings in each cause, must depend on its peculiar circumstances; and of those circumstances, the solicitor or counsel is the judge.
judge. The frame of the pleadings, necessarily admits of great prolixity; and the temptation which is thus presented to the accumulation of costs, is sometimes yielded to by the practitioner. There seems no effectual mode to remedy the evil, except by vesting in the chancellor a discretionary power to amerce those who are guilty of such practices. This is conformable to one of Lord Bacon's general orders, by which he provided, that 'if any bill, answer, replication or rejoinder be formed of immoderate length, both the party and the counsel, under whose hand it passed, should be fined. It was also formerly the practice of the English chancery, to compel counsel to pay costs for impertinent matter inserted in the pleadings.
** The abandonment of the rule of Lord Bacon, and the relaxation of the practice in other respects, have led, in England, to evils of the most serious character; for the length and complexity of the pleadings are not merely injurious in point of expense: they distract the attention, increase the labor, and waste the time of the judge, and in that way occasion delay in the decision of the cause.
"Fortunately for this state, the mischiefs alluded to, are comparatively unknown in the history of our courts of equity; and it is as well to preserve the present reputation of our chancery bar, as to protect the community, that the Revisers have proposed the preceding sections."
“ ARTICLE III.— Of the terms of the court, and the mode of proceeding therein." (S 71. Orig. Rep. same as § 97 R. S., except that the section as reported also contained the following clause, wbich was stricken off by the legislature: “But the time during which proceedings upon any such final decree shall have been suspended by an appeal therefrom, or by order of the court, shall not constitute any part of the said ten years."]
Original note. “By the English law, lands were not bound or affected by decrees in chancery; 2 Maddock, 355, 462; 2 P. Wm. 621. By the act of February 23, 1802, 25th sess. ch. 15 (3d Web. 28, 9), our legislature introduced a new principle, and authorized executions against lands from chancery. In the revision of 1813, 1 R. L. 487, $ 4, a proviso was introduced, that lands and tenements, &c., should
not be bound as against purchasers, without notice, until an actual levy. The consequence is, that decrees, in effect, are not liens on land. The reason for making judgments a charge upon land, seems to apply equally to decrees for the payment of money. The jurisdiction of the courts, is in many cases, concurrent, and the harmony of the law would require that the judgment should have the same effect. It is believed that all inconvenience will be prevented by requiring the transcripts to be entered by the clerks of the supreme court, to whose offices parties will necessarily resort to make other searches. And as it is a peculiar benefit to the complainant, it is proposed to throw the expense on him.
"The expression 'chattels real,' inserted in order to reach leases for years, which are not within the present law, and form an anomalous case; vide 1 J. C. 223; 19 J. R. 73; 2 Cowen, 497.”
(S 80, 81, 82, 83, 84, 85. Same as $ 109 to 114 R. S.] Original note. "$ 83, 84, 85 omitted in act, but deemed necessary."
(S 86, 87, 88, 89, 90, 91, 92. Same as $ 115 to 121 R. S.] Original note. "The last four sections are not in the act, but supply important omissions."
“ARTICLE IV.— Of proceedings against absent, concealed and non-resident defendants.” (S 93, 94. Same as $ 122, 123 R. S.] Original note. “1 R. L. 489, $ 9; and 7th and 8th rules of the court of chancery, somewhat modified. It is conceived that so much of these regulations as now rest on the rules, should be incorporated with the other provisions on the same subject."
(S 97 to 100. Same as $ 126 to 129 R. S., except that in § 97 the words “or of the personal service of such order as herein provided,” after “required,” were inserted by the legislature.] Original note to § 97. “Same act, Ø 9, modified and partly new.”
Original note to ý 100. “ The present statute authorizes the making of a decree, on the mere default of the party. It is conceived, that in a case where no personal notice has been given to the defendant, some proof-the oath of the party, at least-should be required. The latter clause of $ 97, and the three last sections, have therefore been proposed by the Revisers.”
[s 101, 102. Same as $ 130, 131 R. S.] Original note. “The security required in the original act (§ 9), does not seem to extend to this case, though clearly necessary, and probably within the meaning of the legislature.”
(S 103 to 109. Same as enacted § 132 to 138 R. S., except that in $ 105 (134 R. S.), the words “him or them,” were substituted by the legislature for "party interested."
" ARTICLE V.–Of the granting of injunctions to stay proceedings at law." Preliminary note to Article. “The practice in regard to injunctions to stay proceedings at law in our court, is very different from that which prevails in the English chancery. The writ is undoubtedly remedial and often most salutary. At the same time, every observing practitioner must have perceived, that it is often used for mischievous purposes, and that parties are often seriously injured, and sometimes wholly defeated in the prosecution of their just claims at law, by the
operation of an injunction, which may be obtained in many cases, by insolvents, without any means to indemnify the injured, and without being required to furnish any pledge for such indemnity. A great inequality is thus produced in the situation of the parties, and a temptation offered to annoy an antagonist, which there is reason to fear is too often felt and indulged. The necessary restrictions are probably not within the power of the court; at all events they are more firmly secured and better promulgated, by legislative enactment.
“In the following sections, the Revisers have extended the principles of the existing rules of the court, so as to require security in all cases where injunctions are applied for, to stay personal actions at issue in courts of law; and have added such other provisions, as seemed calculated to remedy many of the evils which are most frequently experienced."
$ 116. Same as 144 R. S., except that the words “ in any action for the recovery of lands, or the possession of them,” were substituted by the legislature for “ in any real or mixed action."
Original note. “The 42d rule of the court of chancery requires the deposite in mixed actions, of a sum at least equal to the costs. But this is entirely inadequate to the injury that the plaintiff may sustain by being kept out of the possession of the land recovered. Nor is there any good reason for not extending the rule to real as well as mixed actions. In the above sections we have adopted the principle of the act concerning writs of error,' 1 R. L., 143."
[S 117, 118, 119. Same as enacted § 145, 146, 147 R. S.] Original note to $ 119. “This exception seems to be necessary, as otherwise a party against whom a judgment has been fraudulently obtained, may be rendered remediless." " ARTICLE VI.-Of the powers and proceedings of the court, upon bills for the foreclosure or
satisfaction of mortgages. [S 123. Same as $ 151 R. S.] Original note. “1 R. L., 493, $ 21, and 490, $ 11, made general, so as clearly to embrace all cases of foreclosure, whether the defendant appear or not, conformably to the decisions of the court of chancery, the supreme court, and the court of errors."
[S 124 adopted with variations in § 152 R. S. Original note. “New. The first part of the section conformable to 4 J. C. R., 609; the latter part proposed, in order to give the court complete jurisdiction over the whole subject, and save the necessity of suits at law. It is known that a mortgagee has now three distinct remedies : 1. By an ejectment; 2. By a suit on the bond ; 3. By foreclosing under the statute, or in equity. When a court has once jurisdiction over an integral part of the subject, there is an obvious propriety in allowing it to dispose of the whole, instead of compelling parties to resort to other tribunals. Nor, on the other hand, should a mortgagor be subjected to the ruinous expenses of all these proceedings, unnecessarily.”
S 125 as reported, enacted with material variations § 153 R. S.
Original note. “Pursuant to the principles stated in the foregoing note, and in conformity to the doctrine of the court, which interposes to restrain the collection of the mortgage debt, out of other property,
but seems to leave the party exposed to the costs of a judgment at law. 2 J. C. R., 125."
S 126 as reported, substantially enacted as $ 57, Title I. of Chap V. post. Original note. “Pursuant to the principles before stated; and the action of ejectment is the less necessary, since the court of chancery will compel possession. It is submitted, that a party ought not to be permitted to avail himself of a legal remedy upon a mere equitable security; and thus often compel the mortgagor to resort to a court of chancery to establish bis equitable rights. A dormant mortgage may be, and often is, used for improper purposes against third persons. From the nature of the security, it would seem that its validity, and its having become absolute, should be first established directly against the parties, by a foreclosure either in equity or by advertisement under the statute, before legal proceedings are had
" The above section properly belongs to a subsequent Chapter, in which the action of ejectment is treated of; but it is now presented here for the purpose of showing more distinctly the views of the Revisers."
$ 128 enacted with variations $ 156 R. S. Original note: “Necessary to prepare for the subsequent section, and to compel a party to elect his tribunal and exhaust his remedies there, before trying another."
$ 129 as reported, partially adopted in $ 156 R. 8. Original note. “A perusal of the opinion of Chancellor Kent, in the case of Tice vs. Annin, in 2 J. C. R., 129, is invited, in order to a clear apprehension of the difficulties attending the present law on this subject. The chancellor doubts, “if there be any good sense in allowing the mortgagee himself to proceed and sell the equity of redemption by execution at law, without proceeding on his pledge,' and intimates a design, in future cases, to prohibit a mortgagee from doing so. Without examining into the power of the court thus to restrain a statute, it is yet conceived that it is a very proper case for legislative interference. The Revisers were desirous to propose the remedy suggested in the above case. But they do not perceive how the officer who is to execute the process of a court of law, or the purchasers at a sale, can know or be judicially informed, whether the judgment on which premises are exposed for sale, be, or be not, founded on a debt secured by a mortgage? To allow the defendant to plead in the suit, an exemption of the premises, besides making the proceedings more complicated, would not reach the case of a judgment by default, nor would it ensure the protection of creditors and purchasers. The same object seems to be attained more effectually, by declaring a sale of the equity of redemption a satisfaction of the mortgage security; and then mortgagees will resort to other property, or will at once proceed on their mortgage, much to the benefit of other creditors, and of the mortgagor, and, in every fair and honest case, to their own benefit. The whole interest of the mortgagor in the premises will then be sold, under the foreclosure; there will be no subdivision of that interest into parts; purchasers will know what they acquire, and the property will be more likely to bring its value.”
$ 34, enacted with a material variation, $ 161, R. S.