Gambar halaman
PDF
ePub

1. I believe that the defendant, Henry Jones, does claim to have a charge upon the farm and premises comprised in the indenture of mortgage of the 1st of May, one thousand eight hundred and fifty, in the plaintiff's bill mentioned.

2. Such charge was created by an indenture dated the 1st of November, one thousand eight hundred and fifty, made between myself of the one part, and the said defendant Henry Jones of the other part, whereby I granted and conveyed the said farm and premises, subject to the mortgage made by the said indenture of the 1st of May, one thousand eight hundred and fifty, unto the defendant Henry Jones, for securing the sum of two thousand pounds and interest at the rate of five pounds per centum per annum, and the amount due thereon is the said sum of two thousand pounds, with interest thereon, from the date of such mortgage.

3. To the best of my knowledge, remembrance, and belief, there is not any other mortgage, charge or encumbrance affecting the aforesaid premises. M. N.

(name of counsel.)

Proceedings by claim, instead of by bill, were regulated by the Orders of April 22, 1850; which permitted the following parties to pursue this brief method of relief:

1. A creditor, seeking payment out of the personal estate of his deceased debtor.

2. A legatee, seeking payment of his legacy out of the personal estate of the testator.

3. A residuary legatee, seeking an account of the residue, and payment or appropriation of his share.

4. Any person entitled to a distributive share of an intestate's personal estate, and seeking an account and payment.

5. An executor or administrator, seeking to have the personal estate administered under the directions of the Court.

6. A legal or equitable mortgagee, or person entitled to a lien as security for a debt, seeking foreclosure or sale, or otherwise to enforce his security. 7. A person entitled and seeking to redeem such mortgage or lien.

8. A person entitled to and seeking the specific performance of an agreement for the sale or purchase of any property.

9. A person entitled to and seeking an account of the transactions of a partnership which is dissolved or has expired.

10. A person entitled to an equitable estate or interest, seeking to use the name of his trustee in a suit at law, for his own benefit.

11. A person entitled to have a new trustee appointed, in a case where the instrument creating the trust contains no power for that purpose, or the power cannot be exercised, and seeking to have a new trustee appointed.

In other cases, parties may prosecute by claim, on special leave of the Court, upon the ex parte application of the person seeking equitable relief.

These claims are subject to the General Orders and practice of the Court, in the same manner as proceedings by bill, so far as the rules may apply. Forms are set forth, in the schedules annexed to these Orders, for the pursuit of these remedies by claim; of which the following claim for specific performance of an agreement, may serve as a specimen :—

In Chancery.

[ocr errors]

Between A. B., Plaintiff.
C. D.,
Defendant.

The claim of A. B., of the above-named plaintiff. The said A. B. states, that by an agreement dated the day of and signed by the

above-named defendant C. D., he the said C. D., contracted to buy of him [or "to sell to him"] certain freehold property [or "copyhold," "leasehold," or other property, as the case may be], therein described or referred to, for the sum of - pounds; and that he has made or caused to be made an application to the said C. D. specifically to perform the said agreement on his part, but that he has not done so, and the said A. B. therefore claims to be entitled to a specific performance of the said agreement, and to have his costs of this suit; and for that purpose to have all proper directions given. And he hereby offers specifically to perform the same on his part.

CHAPTER II.

OF THE SOURCES, MEANS AND INSTRUMENTS OF EVIDENCE.

§ 268. THE SOURCES OF EVIDENCE in Equity are principally four; namely, first, the intelligence of the Court, or the notice which it judicially takes of certain things; and the things which it presumes; secondly, the admissions of the parties, contained in their pleadings and agreements; thirdly, documents, and, fourthly, the testimony of witnesses.

1. THINGS JUDICIALLY TAKEN NOTICE OF, AND PRESUMED.

§ 269. The first of these, namely, THINGS JUDICIALLY TAKEN NOTICE OF, has already been briefly treated in a preceding volume.1 The principle on which such notice is taken, is, the universal notoriety of the facts in question. These are sometimes distributed into two classes, composed of those things of which the Court suo motu takes notice, and those of which it does not suo motu take notice, but expects its attention to be directed to them by the parties; in which latter class are enumerated those local and personal statutes, in which it is enacted, that they shall be judicially taken notice of without being specially pleaded; journals of the two houses of the legislature; public proclamations; public records, &c. But this distinction is of little or no practical importance; since, in the progress of every trial, the attention of the Court is always called alike to all matters within its cognizance, which the parties or their counsel deem material

[blocks in formation]

to their respective interests, to whichsoever of those two classes they may seem to belong; and whenever a document or writing is required to aid the recollection of the Court, it is generally provided beforehand for the occasion. It is, for example, wholly immaterial, in the final result, whether the facts of public and general history and their dates, are recognized by the Court, suâpte sponte, the books and chronicles or almanacs being used merely to aid the memory; or whether they will remain unnoticed until suggested by the parties and verified by the books; or whether the books themselves are adduced by the parties and admitted by the Court as instruments of evidence, in the nature of public documents; the process and the result being in each case the same.1 Neither is it possible to distinguish à priori, between those subjects of science which are in fact of such notoriety as entitles them to be judicially recognized, and those which are not; nor, between those things which ought to be generally known, and those, the knowledge of which is not of general obligation; since each particular case must be decided by the Judge, as it occurs, and he can have no other standard than the measure of his own information or learning; a standard subject to variations as numerous as the individuals by whom it is to be applied. This standard also must be liable to constant changes with the advancement and gradual diffusion of science; many things which formerly were occult, and to be proved by experts, as, for example, many facts in chemistry, and the like, being now, in the same places, matters of common learning in the public schools. The same may, in some degree, be said of every branch of physical science, of geographical knowledge, and of the religion and customs of foreign nations. A different application of the rule may also be requisite in different parts of the same country or government, as, for example, Maine and California, or England and Australia, or India.

§ 270. In regard to the means or instruments to which resort

1 Ante, Vol. 1, § 497.

1

is usually had by the Court, for the more accurate recollection of matters of general notoriety, it may be observed, that the preamble of a public statute will ordinarily be sufficient for the knowledge of any general fact it recites, any communication from the Secretary of State will suffice, as to the precise state of our relations with a foreign government; the government Gazette, for the dates of public events, such as, proclamations of war or peace, signature of treaties, terms of capitulations, and the like;3 the diplomatic communications of our ministers abroad, for the relations of foreign governments to each other, and, generally, public documents, for the public facts they contain.5

§ 271. In taking notice of the common and unwritten law or customs of the country, resort is had to the reported judgments of the Courts, and to the great Text-books, such as the writings of Bracton, Lord Coke, Lord Hale, Sir Michael Foster, Fitzherbert, and others. There is, however, a diversity in the degrees of credit given to books of reports and to the judgments themselves, arising from the character of the reporter, and of the Court. The judgments of Courts of appellate and ultimate jurisdiction are regarded as binding, by those Courts whose decisions they are authorized to revise and reverse. And Judges, sitting at nisi prius, will not overrule or disregard the decisions in banc of their own Courts. But the decisions of other Courts of coördinate rank and authority, and the decisions of the Courts of other States, are not generally regarded as of binding force, or as conclusive evidence of the Common Law; but are read and respected according to the estimation in which the tribunals are held.

1 Doct. & St. b. 2, ch. 55; 1 Inst. 19, b.; Rex v. Sutton, 4 M. & S. 542. 2 Taylor v. Barclay, 2 Sim. 220. And see ante, Vol. 1, § 6, 490, 491. 3 Ante, Vol. 1, § 492.

4 Thelluson v. Cosling, 4 Esp. 266.

5 Ante, Vol. 1, § 6, 490, 491.

6 See, on the estimation of authorities, Ram on Legal Judgment, ch. 18, per tot.

« SebelumnyaLanjutkan »