THE

PRACTICE

OF

THE HIGH COURT OF CHANCERY.

CHAPTER XXIII.

SETTING DOWN THE CAUSE FOR HEARING.

WHEN the evidence is closed, the next step is to set the cause down for hearing.1

Setting down

cause:

Before what

Formerly, the cause might be set down before either the Lord Chancellor or the Master of the Rolls, according to the discretion Court. of the plaintiff, regulated by the nature and importance of the suit, and the arrear of cases depending before each of them respectively; but we have seen that, according to the present practice, it is incumbent upon the plaintiff, at the time when he files his bill, to signify upon the record before which of the Judges of the Court he intends the cause to be heard. The cause may, nevertheless, either before or after it is set down, be transferred to the transfer Court of any other Judge, by special order of the Lord Chancellor, or of the Lords Justices; but, unless so transferred, it must be set down for hearing and heard before the Judge for whom it is

1 The English Rules in Chancery, relating to setting down a cause for hearing, have not been adopted in Massachusetts. Charles River Bridge v. Warren Bridge, 7 Pick. 344; see Pingree v. Coffin, 12 Cush. 600. They are inapplicable in New Jersev. West . Paige, 1 Stockt. (N. J.) 203. In this latter State by rule of Court, all causes, including pleas and demurrers, shall be set down for hearing for the first day of the term, if there is sufficient time to give the required notice; if not time, then at a subsequent day in the term, and shall have priority according to the date of the issue. Chancery Rule, 90.

2 For the practice as to setting down a cause for hearing, where the bill was filed

before 20 May, 1837, or 11 Nov., 1841, see
Braithwaite's Pr. 432; and for a list, show-
ing the order of succession among the Vice-
Chancellors, see Vol. III.

3 Ord. VI. 1; ante, p. 397.

4 In Massachusetts, cases in Equity, and motions and other applications therein, whether interlocutory or final, shall in the first instance be heard and determined by one of the Justices of the Supreme Judicial Court. Genl. Sts. c. 113, § 6. And for hearings, and making, entering, and modifying orders and decrees in Equity causes, by a single Justice, and issuing writs in such causes, the Court shall be always open in each county, except on holidays established by law. Genl. Sts. c. 113, § 6.

Power to

cause.

CH. XXIII. marked.1

Within what

time cause to be set down, and by whom.

Where time for taking evidence is enlarged;

cause in the mean time.

Distinct lists of the causes and other matters set down to be heard before each Judge are kept by the Registrars.2

3

A cause is usually set down for hearing by the plaintiff; and, as we have seen, if the plaintiff neglects to set down the cause to be heard, and obtain and serve a subpoena to hear judgment, within four weeks after the evidence has closed, the defendant may move to dismiss the bill for want of prosecution, or may set down the cause, at his own request, and obtain a subpœna to hear judgment, and serve the same on the plaintiffs The plaintiff may set down the cause for hearing, and obtain a subpoena to hear judgment, on any day, as soon as the evidence has closed."

Where either party has obtained an order enlarging the time for taking the evidence, the cause cannot be set down before the expiration of such enlarged time, except by consent of the plaintiff, and all the defendants with whom issue has been joined: 7 Setting down unless the order enlarging the time be made without prejudice to the cause being set down, or direct it to be set down in the mean time; and the order is frequently made in that form. If the cause is thus set down, the parties are not precluded from continuing to take their evidence; but they must, of course, take care that the evidence is completed before the time for taking evidence has closed, and before the cause is put into the paper for hearing. If, after the cause has been set down, the time for taking the evidence is further enlarged, the order enlarging the time should be produced, as soon as it is entered, to the Registrars' clerk at the order of course seat; and he will notify the fact against the entry in the cause-book, to prevent the cause being placed in the paper for hearing prematurely."1

Where cause

10

If the plaintiff, instead of filing replication, desires to set down is to be heard the cause to be heard upon bill and answer,12 he must set it down within the same time that is allowed him for filing replication, that is, within four weeks after the answer, or the last of the

on bill and

answer.

1 Ord. VI. 4. As to the transfer of causes, see ante, pp. 70, 398.

2 Ord. VI. 8. As to the power of a Judge during vacation to hear a motion or petition, or make special orders, in a cause not attached to his Court, see post, p. 984; Ord. VI. 11; and Holloway v. Phillips, 17 Jur. 875, V. C. W.; Price v. Gardner, 1 Jur. N. S. 975, V. Č. W.; Bean . Griffiths, ib. 1045, V. C. W. The duties of the Vacation Judge commence as each Court rises, although the vacation may not have actually commenced. Francis v. Browne, 8 Jur. N. S. 785; 10 W. R. 811, L. C.

any co-defendants. Clarke v. Dunn, 5 Mad. 474; Smith v. Wells, 6 Mad. 193.

6 Ord. XXI. 1, 4; Dowson v. Solomon, 4 Drew. 642; Braithwaite's Pr. 427; Braithwaite's Manual, 94, 131.

7 For form of consent, see Vol. III.

8 Ellis v. King, 4 Mad. 126; Langley v. Fisher, 5 Beav. 588; Dowson v. Solomon, ubi sup.; Braithwaite's Pr. 427.

9 Langley v. Fisher, ubi sup. ; Braithwaite's Pr. 427.

10 Ibid.

11 See ante, p. 889, n.

12 Where an answer, if true, is an insufficient defence, the proper course is to set the cause down for hearing on the bill and answer which is tantamount to a demurrer at Law. Bridge v. Burns, 1 Morris, 287.

plaintiff has

amended his

bill without requiring an

answer.

answers required to be put in, by the defendant against whom it is CH. XXIII. proposed to hear the cause upon bill and answer, is held or deemed to be sufficient:1 or, if the plaintiff has, after answer, amended Where his bill without requiring an answer to the amendments, he must set the cause down within one week after the expiration of the time within which the defendant might have put in his answer, in cases where the defendant does not desire to answer the amendments; or within fourteen days after the refusal to allow further time, in cases where the defendant, desiring to answer the amendments, has not put in his answer within the time allowed for that purpose, and the Judge has refused to allow further time: or within fourteen days after the filing of the answer, in cases where the defendant has put in an answer: unless the plaintiff has, within such fourteen days, obtained a special order for leave to except to such answer, or to reamend the bill.2

Where

not been

A defendant who has not been required to answer the bill, and has not answered it, may apply for an order to dismiss the bill for defendant has want of prosecution, at any time after the expiration of three months from the time of his appearance, unless a motion for decree has been set down in the mean time, or the cause has been set down to be heard.*

answer, and answered.

has not

down.

A cause is set down for hearing by the Registrars' clerk, at the How set order of course seat, upon being furnished with a certificate of the proper officer, that is to say, the Clerk of Records and Writs in whose division the cause is, that the same is in a fit state to be set down for hearing. The solicitor of the party setting down the cause must indorse the certificate with a memorandum, stating, if there be any infant defendant, that a guardian ad litem has been appointed; or, if there be not, stating that there is not any infant defendant. The Registrars' clerk, on the cause being thus set down, will give to the solicitor a note of the day on which the subpoena to hear judgment is to be made returnable. The

1 Ord. XXXIII. 10 (1). In Elston v. Elston, 24 L. J. Ch. 408; 3 W. R. 398, V. C. W., the cause was, by consent, allowed to be set down, no withstanding the defendant had not answered interrogatories filed to the bill.

2 Ord. XXXIII. 12 (1–3); Braithwaite's Manual, 93, 156, n. (5); ante, pp 765, 802. Times of vacation are not reckoned in computing the times under this order. Ord. XXXIII. 13 (4); Braithwaite's Manual, 186; and as to the Vacations, see ante, p. 374.

3 That is, twelve weeks. Ord. XXXIII. 10. The three months run during vacations. Bothomley . Squire, 7 De G., M. & G. 246; but see Braithwaite's Manual, 186, n. (109).

4 Ord. XXXIII. 13; see ante, p. 802. Reg. Regul. 15 March, 1860, r. 1.

6 Ord. XXI. 2; and see Ord. VI. 2, 3. The Record and Writ Clerk was ordered to give the certificate, notwithstanding a bare trustee defendant had not appeared. Westhead v. Sale, 3 Jur. N. S. 1209; 6 W. R. 52, V. C. W. For form of certificate, see Vol. III.

7 Reg. Regul. 15 March, 1860, r. 7. The certificate must be marked with the designation of the Judge to whose Court the cause is attached: Ord. VI. 2, 3; and be also indorsed with the name of the solicitor by whom it has been obtained, and of his client, with the date of setting down the cause. A fee of 48., in Chancery fee fund stamps, is payable on bespeaking the certificate. Regul. to Ord. Sched. 4. For forms of certificate and indorsement, see Vol. III.

8 See post, p. 966.

Record and
Writ Clerk's
certificate:
After

replication.

CH. XXIII. Record and Writ Clerk's certificate, that the cause is in a fit state to be heard, will be granted, after replication, at any time after the evidence has closed. Where, however, the time for taking evidence has been extended: unless it is so extended without prejudice to the cause being set down, or all parties consent, the certificate will not be delivered out until such extended time has expired.1 If the cause is set down by the defendant, the words, "at the request of the defendant," must be written on the certificate. If there are any formal defendants, a memorandum of the service of the bill on them must be entered, before the certificate will be given out.3

At defendant's instance. Formal

defendants.

Where cause

to be set down on bill and answer.

Where bill

Where it is desired to set down the cause on bill and answer, the certificate will be given as soon as the answers are filed. A cause cannot be heard on bill and answer against a defendant against whom a traversing note has been filed; but a cause may be set down to be heard on bill and answer against one or more defendants, although it is to be heard on an order to take the bill pro confesso against other defendants.5

If the preliminary order has been obtained to take the bill pro ordered to be confesso against a sole defendant, the cause is set down by the Registrars' clerk, upon production of the order, and of the Record and Writ Clerk's certificate."

taken pro

confesso.

Where

evidence in

chief is to be taken vivá voce at the hearing.

On notice of motion for decree.

8

Where an order has been made to take evidence in chief viva voce at the hearing, the Clerk of Records and Writs makes, upon the certificate, an entry showing that such an order has been made; and the Registrar, in setting down the cause, marks the same so as to indicate that the taking of evidence in chief vivâ voce at the hearing has been ordered; and the cause will be put in the paper to be heard without the special direction of the Court which may be obtained upon an application to the Court, by either party, upon notice, to have a day fixed for the hearing."

The practice, as to setting down a cause to be heard on notice of motion for a decree, has been before stated. 10

9 Ord. 5 Feb., 1861, r. 8. For the mode in which the special direction is obtained, see ante, p. 911. As to marking a cause as short, see post, p. 971. As to setting down a record for trial by jury, or before the Court without a jury, see post, Chap. XXVII., Trials of Questions of Fact.

10 Ante, p. 824, 825. As to setting down a special case for hearing, see post, Chap. XLIII., Special Case.

CHAPTER XXIV.

THE SUBPOENA TO HEAR JUDGMENT.

WHEN the cause has been set down, the next step is to give notice to the adverse party of the day appointed for hearing. This is done by means of a writ called a subpoena to hear judg

ment.

Object of the subpœna.

sued out.

The plaintiff must, as has already been stated, obtain and serve When to be a subpoena to hear judgment, as well as set his cause down for hearing, within four weeks from the time of closing the evidence: and in general, before the time at which the defendant may move to dismiss the bill for want of prosecution. The practice is to issue this subpoena at the time the cause is set down; and if the plaintiff sets his cause down without then suing out the writ, he will not be able to obtain it subsequently without a special application to the Court to adjourn the cause; so that the subpoena may issue and bear date at the time when the cause is entered for hearing.2

8

necessary.

The subpoena must be obtained and served, as well where repli- In what cases cation has been filed, as where the cause is set down on bill and answer, including the case where a traversing note has been filed, or where a defendant, not required to answer, has not answered; * but it is unnecessary in the case of a defendant against whom the bill is to be taken pro confesso.5

6

4

The subpana to hear judgment is prepared by the solicitor How prerequiring it; and is sealed by the Clerk of Records and Writs Issued. in whose division the cause is. When the subpoena is presented for sealing, a note from the Registrar, of the day on which the subpoena is made returnable, called a "subpæna note," and a præcipe must be left with the officer. The Registrar will not

1 Ord. XXI. 1; XXXIII. 10 (2); ante, p. 962; Braithwaite's Manual, 137. For form of subpoena to hear judgment, see Ord. XXVIII. 2, and Sched. E., No. 1; and Vol. III.

2 Harvey v. Towle, 4 Hare, 166. 3 Braithwaite's Pr. 259.

4 Lanham v. Pirie, 2 Jur. N. S. 1201, V. C. S.

5 Braithwaite's Pr. 260.

6 Ord. III. 1.

7 Ord. XXI. 3; XXVIII. 1; Braithwaite's Pr. 258. Each subpoena must be stamped with a 5s. Chancery fee fund stamp. Regul. to Ord. Sched. 4. Forms of the præcipe may be had at the Record and Writ Clerks' Office; and see Vol. III.