abolished; and any questions of Law which are necessary to be CH. XXV. decided, previously to the decision of the equitable question at issue between the parties, will be determined by the Court of Chancery: calling to its assistance, if necessary, one or more of the Common Law Judges.2 The Court will not require the assist- Assistance of ance of a Common Law Judge, unless it entertains a reasonable Law Judges; doubt; and where the Court desires such assistance, the Judge how obtained. will request the Lord Chancellor to make application accordingly.* 8 5 the Common assistance: It may be also mentioned here, that the Court, or any Judge Scientific thereof, may, in such way as they may think fit, obtain the assistance of accountants, merchants, engineers, actuaries, or other scientific persons, the better to enable them to determine any matter at issue in any case or proceeding, and may act upon the certificate of such persons. The allowances in respect of fees to such persons will be regulated by the Taxing Master of the Court, subject to an appeal to the Judge to whose Court the cause or matter is attached: whose decision will be final. The certificates, how regarded. however, of such persons, although entitled to great weight, are not to be considered in any other light than as furnishing materials for the information and guidance of the Court; and affidavits may, therefore, be received in opposition to them. The Court. will not obtain the assistance of any scientific person, until an issue has been raised between the parties to the suit. Where, after a cause has come on to be heard, it has been discovered that, through inadvertence, although witnesses have been examined, no replication has been filed, the Court has permitted a replication to be filed nunc pro tunc.9 If a cause heard on bill and answer is dismissed, with liberty to the plaintiff to reply within a limited time after such hearing, on payment of costs, and the plaintiff does not pay the costs and reply within that period, the dismissal must stand; and, being also provided that "the Justice by whom a case is heard for a final decree may reserve and report the evidence and all questions of law thereon, for the consideration of the full Court, and thereupon like proceedings shall be had as in appeals from final decrees. Genl. Sts. c. 113, § 15. 1 15 & 16 Vic. c. 86, §§ 61, 62; 25 & 26 Vic. c. 42, § 1. 2 14 & 15 Vic. c. 83, § 8. Heward v. Wheatley, 3 De G., M. & G. 628; 17 Jur. 403; see also Falkner v. Grace, 9 Hare, 280, 283. Hay v. Willoughby, 9 Hare Ap. 30; Deerhurst v. Jones, 16 Jur. 988, V. C. T., apparently S. C.; Hughes v. Chester & Holyhead Railway Company, 8 W. R. 337, V. Č. K. 15 & 16 Vic. c. 80, § 42. For cases in which such assistance has been obtained, see Attorney-General v. Chambers, 4 De 6 15 & 16 Vic. c. 80, § 43. In general, 7 Per L. J. Turner, in Ford v. Tynte, 10 Jur. N. S. 429, 430; 2 De G., J. & S. 127; and see Hill v. King, 9 Jur. N. S. 527, L. C. 8 Stokes v. City Offices Company, 13 W. R. 537, V. C. W.; 11 Jur. N. S. 560. 9 Rodney v. Hare, Mos. 296; Wyatt's P. R. 376; ante, p. 834. Replication permitted to be filed nunc pro tunc. Omission of plaintiff to reply after leave, CH. XXV. signed and enrolled, may be pleaded in bar to a new bill for the same matter.1 Objection for want of parties. Costs. Where cause has been struck out. Private hearing. Entering evidence in the decree. Motion for a decree. Special orders during vacations. It has been before stated, that the proper time for taking an objection at the hearing for want of parties is after the pleadings are opened, and before the merits are discussed: though the Court has frequently at a later period permitted the cause to stand over, for the purpose of adding parties. With respect to the question of costs in such cases, it will be sufficient to refer to what has been before said upon the subject, and to add that, if a cause comes on again, after it has been put off by the Court for want of formal parties, an objection for want of other parties which might have been made in the first instance, comes too late.1 If a cause, instead of being ordered to stand over for want of parties, is struck out of the paper, so that it is necessary again to set it down, and to serve fresh subpanas to hear judgment, the defendant, if the cause is again set down, is, as we have seen, to be allowed the taxed costs occasioned by the first setting down, although he does not obtain the costs of the suit.5 6 In the matter of Lord Portsmouth, Lord Eldon, before going into his private room, for the purpose of proceeding with the further hearing of the petition and affidavits privately, according to appointment, desired that it might be understood that it was the uniform practice in Chancery, as long as the Court had existed, in the case of family disputes, on the application of counsel on both sides, to hear the same in the Chancellor's private room; and that. what was so done was not the act of the Judge, but of the parties themselves in such family cases: but it has since been held, that a cause may be directed to be heard in private, although such course is not consented to." 8 The parties should take care that the evidence made use of at the hearing is entered in the decree as read; or, if rejected, as having been tendered and rejected; but it will not be entered "saving just exceptions." 10 The plaintiff can also, as we have seen," bring his cause to a hearing upon motion for a decree: the hearing in which case is conducted in the same manner as where replication has been filed. It may be here mentioned that, in the interval between the rell, 2 Phil. 453, 463; 12 Jur. 253; and see on this subject, post, p. 1000, and Seton, 7. 9 Watson v. Parker, 2 Phil. 5, 9; 10 Jur. 577. 10 Watson v. Parker, ubi sup. ; Parker v. Morrell, 2 Phil. 453, 462; 12 Jur. 253; Drake v. Drake (No. 1), 25 Beav. 641. 11 Ante, p. 819, et seq. close of the sittings after any term, and the commencement of the CH. XXV. sittings before or at the beginning of the next ensuing term, applications for special orders may be made to any Judge of the Court, in the same manner as if the rules which attach every cause to a particular branch of the Court had not been made; but orders which may be so made in any such interval by the Lord Chancellor or the Lords Justices, or by the Master of the Rolls, or by any of the Vice-Chancellors are, if not made by the Judge to whom the application, if made during the ordinary sittings of the Court, would have been made,2- to be marked as having been made for such Judge, and are, in the future proceedings of the cause, to be deemed to be the orders of such Judge in all respects, save this: that no order so made by one Judge for another, under the circumstances aforesaid, is to be reheard, for the purpose of being discharged or varied, otherwise than by the Lord Chancellor or by the Lords Justices. certificates, and prosecu decrees and During the like interval, one Judge may also sign and adopt Approval of any certificate made by the Chief Clerk of any other Judge, and decrees and orders made by any Judge may be prosecuted at the Chambers of any other Judge, by his permission: and, if not completed during such interval, may be continued at his Chambers, if, and so far as, he thinks fit.* Where, during vacation, a motion in a cause attached to the Court of the Master of the Rolls has been heard by a Vice-Chan.cellor and refused, the Master of the Rolls will not hear the same application, even if supported on different grounds from those before the Vice-Chancellor; but an order made by one Judge for another may be reheard by the Judge for whom it is made, if the Judge who makes the order expressly gives the parties leave to do 80.6 tion of orders, during vacations. Rehearing by one Judge of order made for him, during vacation, by another, refused. By an arrangement among the Master of the Rolls and the Vacation Vice-Chancellors, such business of their respective Courts and Judge. Chambers as requires their personal attention during the vacations, is ordinarily attended to by one of them only, for the space of one year; and such Judge is usually termed "the Vacation Judge." The duties of the Vacation Judge commence immediately on the rising of the Courts for the long vacation. 5 Man v. Ricketts, 9 Beav. 4. 6 Pinchin v. London & Blackwall Railway Company, 5 De G., M. & G. 851. Under the present arrangement, the rota of Vacation Judges stands thus: V. C. Kindersley, 1865; V. C. Wood, 1865-6. V. C. Stuart, 1866-7; and the Master of the Rolls, 1867-8; and see post, Chap. XXIX., Proceedings at Chambers." 8 Francis v. Browne, 8 Jur. N. S. 785; 10 W. R. 811, L. C. CHAPTER XXVI. Definition of a decree. Interlocutory or final. Interlocutory] decrees: SECTION I. DECREES AND ORDERS. General Nature of Decrees and Orders. A DECREE is a sentence or order of the Court, pronounced on hearing and understanding all the points in issue, and determining the right of all the parties to the suit, according to equity and good conscience. It is either interlocutory or final. An interlocutory decree is: when the consideration of the particular question to be determined, or the further consideration of the cause generally, is reserved till a future hearing. The further 1 See Wyatt's P. R. 154; Hinde, 429. A decree in Equity is for most purposes, if not for all, of as high a dignity and character as a judgment in a Court of Law. Story Eq. Pl. 790; Hopkins v. Lee, 6 Wheat. 109; Wash. Bridge Co. v. Stewart, 3 How. U. S. 413; Crandall v. Gallup, 12 Conn. 365; Calkins v. Evans, 5 Ind. 441; Loyd v. Hicks, 31 Geo. 140. It is equivalent to a judgment at Law as to the distribution of assets. Thompson v. Brown, 4 John. Ch. 636; Woddrop v. Price, 3 Desaus. 206; Blake v. Heyward, 1 Bailey Eq. 208; see Phillips v. Thompson, 3 Stew. & P. 369. A decree cannot be incidentally assailed, but is conclusive as to the rights and liabilities of the parties until reversed by the appellate Court, or impeached by an origiinal bill for fraud in obtaining it, or attacked for palpable error, by bill of review. Sanders v. Gatewood, 5 J. J. Marsh. 328; Watson v. Williams, 8 Ired. Eq. 232; Gardiner v. Miles, 5 Gill, 94; Hunter v. Hutton, 4 Gill, 115; Hill v. Hoover, 9 Wis. 15. The conclusiveness of a decree is not affected by any difference between its being obtained by consent or by a decision of the Court on the legal principles involved. Gifford v. Thorn, 1 Stockt. (N. J.) 702. A decree authorizing a sale of all the real estate of a party, is good, as evidence, against all the world, so far as the transfer of the right of such party to another, or to a purchaser under such a decree, is concerned. Ryder v. Inverarity, 4 Stew. & P. 14. All persons who are parties or privies to a decree are bound by it. Gould v. Stanton, 16 Conn. 12; Young v. Henderson 4 Hayw. 189; M'Whorter v. Standifer, 2 Porter, 519; Marrigauld v. Deas, 1 Bailey Eq. 284; M'Call v. Harrison, 1 Brock. 126. But none others. Brown v. Wincoop, 2 Blackf. 230; Canby v. Ridgway, Halst. Dig. 175; Dale v. Roosevelt, 1 Paige, 35; Garnett v. Mason, 6 Call, 308; Este v. Strong, 2 Ohio, 404; Moseley v. Cocke, 7 Leigh, 224; Griswold v. Jackson, 2 Edw. Ch. 461; Matthews v. Roberts, 1 Green Ch. 338. A decree cannot be made as to any who are not parties to the suit. Armstrong v. Armstrong, 4 C. E. Green, 357. The rights of third persons, not parties to a suit, are not affected by the decree therein, although such decree is binding and conclusive with respect to the subjectmatter on which it acts. Beers v. Broome, 4 Conn. 247; Bailey v. Robinson, 1 Grattan, 4; McCall v. Harrison, 1 Brock. 126; Carney v. Emmons, 9 Wis. 114; Buford v. Bucker, 4 J. J. Marsh. 551; but see Goss v. Singleton, 2 Head (Tenn.), 67. 2 See Thompson v. Peebles, 6 Dana, 391; Dunbar v. Woodcock, 10 Leigh, 629; Teaff v. Hewitt, 1 Ohio (State), 511. An order in an Equity suit directing the trial of a question of fact by a jury is an interlocutory order; and in Massachusetts this order may be made by the Supreme Judicial Court when held by a single Judge. Eames v. Eames, 16 Pick. 141; Ward v. Hill, 4 Gray, 593, 595; see also Genl. Sts. c. 113, § 6. And such order may be set aside at a subsequent term of the Court. Dabbs v. Dabbs, 27 Ala. 646. But in Massachusetts the order for an issue is not open to exception. Crittenden v. Field, 8 Gray, 626; Ward v. Hill, 4 Gray, 593. hearing is then termed a hearing upon further consideration, or upon the equity reserved.1 3 2 CH. XXVI. § 1. Issue of fact, It seldom happens that a first decree can be final, or conclude the cause. Thus, if any matter of fact is strongly controverted, how tried. the Court will, where necessary, direct such matter to be tried before itself, either with or without a jury; or, if it can be more conveniently so tried, before a Court of Common Law, in London or Middlesex, or at the Assizes. And where the Court awards damages, they may be assessed in like manner, or before the sheriff. In such cases, no final decree can be pronounced until the issue has been tried. The Court, therefore, in such cases, in the first instance merely orders the issue to be tried; and adjourns the further consideration of the other questions in the cause, until after the trial.7 to settle Sometimes, the object of the suit is a commission to settle the Commission boundaries of lands. In such a case, also, the first decree is not boundaries. generally final: the further consideration of the cause being reserved till after the commission has been returned.8 accounts. But the most usual ground for not making a perfect decree, in Preliminary the first instance, is the necessity which frequently exists to make inquiries and inquiries, or to take accounts, or sell estates, and adjust other matters: which must be disposed of, before a complete decision can be come to upon the subject-matter of the suit.' Inquiry as to There are some cases, in which it is a rule of the Court not to make any decree whatever, till certain preliminary inquiries have title of vendor, in suits been made. Thus, in suits for the specific performance of con- for specific tracts, the Court will not, in general, permit the question whether performance: a good title can be made or not, to be argued before it, in the first instance; even though the objections to the title are stated, and the questions arising upon them are properly raised by the plead 1 Seton, 2. In strictness, a decree is interlocutory until it is signed and enrolled: Gilb. For. Rom. 183; Wyatt's P. R. 154; but the term is more generally applied to decrees in which some inquiry as to matter, either of Law or of fact, is directed, preparatory to a final decision. 1 Newl. 508; see post, Chap. XXX., Further Consideration. 2 21 & 22 Vic. c. 27, §§ 3, 5; 25 & 26 Vic. c. 42. 8 25 & 26 Vic. c. 42, § 2. 4 21 & 22 Vic. c. 27, § 2. 5 lb. §§ 3, 5, 6. 6 The Court will not, except by consent, direct the issue to be tried, until the hearing of the cause. George v. Whitmore, 26 Beav. 557; Morrison v. Barrow, 1 De G., F. & J. 633, per L. J. Turner, 639; Bradley v. Bevington, 4 Drew. 511; 5 Jur. N. S. 562. See post, Chap. XXVII., Trials of Questions of Fact. 9 A decree authorizing an executor to sell the lands of his testator, for the payment of debts, and to report his proceedings in execution thereof to the Court, is not final, but an interlocutory decree. Goodwin v. Miller, 2 Munf. 42. It is said by Judge Spencer, in Jaques v. Method. Epis. Church, 17 John. 558, that no case can be found in which a decree, directing a reference to a Master, or a feigned issue, for the purpose of ascertaining any material fact in the case, has been held to be a final decree; see Travis v. Waters, 12 John. 500. |