« ΠροηγούμενηΣυνέχεια »
Chancellor, at a court of Chancery, to be held at the
City-Hall of the city of New-York, on the last Monday
of September, inst. at the opening of the court on that
day, or as soon thereafter as counsel can be heard.
Dated, Sept. 1817.
To G. H. Sol’r for def’t.
K.A. B. Complainant,
10. Finalde. This cause having this day been brought on to be erce, heard, in pursuance of a notice for that purpose, on reading the said notice, and an affidavit of the due service thereof, and after reading and filing the nisi prius record and postea on the feigned issue, by a former order of this court, directed to be tried in this cause between the above named parties, to ascertain whether the adultery complained of in the complainant's bill of complaint has been actually committed by the defendant; and it further, appearing, by the certificate of the honorable Ambrose Spencer, one of the justices of the people of the state of New-York, of the Supreme Court of Judicature of the same people, before ...," whom the said cause was tried, at a Circuit Court, held *"at the City-Hall of the city of New-York, that the said issue was tried by a jury duly empannelled, and that the verdict was supported by proof in addition to he confessions of the party charged, which certificate is also filed; and on hearing Mr. of counsel on behalf of the complainant, and Mr. - - on behalf of the said defendant, it is ordered, adjudged
and decreed, and his honor the Chancellor, by the
power and authority of this court, and in pursuance of
the act of the Legislature of the state of New-York, entitled, “An act concerning divorces, and for other
purposes,” passed the 13th day of April, in the year. of our Lord 1813, doth order, adjudge and decree,
that the marriage between the said complainant A. B. and the said defendant C. B. be dissolved, and the
same is hereby dissolved accordingly, and the said par
ties, and each of them, is and are freed from the obligations thereof. -
As the court of Chancery, for the purpose of enabling it to make the decree, requires the assistance of a jury upon a question of fact, for the same purpose, if a question of law arises, a case is frequently (in England)
directed to be made up, and sent to a court of law for
its opinion on that point.(a) The case is framed by the court, or under its direction, or which is the most usual, it is referred to a master to settle the case; but the facts to be noticed in it may be stated in the order by the court.(b) And it seems, that if the Chancellor is dissatisfied with the opinion of the court, he may
send it back to be reviewed. But it is said that there
is but one instance known of sending the case back to the same court; the usual mode being to send it for the opinion of another court.(c) But in that case, Lord Kenyon expressed his satisfaction that it had
been sent back, and upon reconsidering their opinion, the judges unanimously made a decision contrary to their former judgment.(d) In England, after the case is made, a consilium is moved for in the court of law, and a rule obtained from the clerk of the rules, and the case is set down with the clerk of the papers, and copies made for the judges and left with their clerks. ! After the case has been argued, and it has been considered by the judges, they return their opinion to the Chancellor in the form of a certificate generally, without stating their reasons for their opinion. The form of a case, and of the judge's certificate,
will be found at large in 6 T. R. 307. Daintry v. Daintry.
Special Contents. i
I. The nature and division thereof.
1. Nature AN injunction is a remedial writ in the nature of a and division
thereof. prohibition, as where a person is doing or about to do
an act that is against equity or good conscience, or 'o " . that is: litigious or vexatious, the court will not : leave the party to feel the mischief or inconvenience: of the wrong, and in vain look for redress, but inter-, pose its authority to restrain unjustifiable proceedings. , Injunctions are of two kinds—common and special. *::::::* If the injunction prayed for be to stay proceedings at law, it will be granted of course, upon an attachment for want of appearance, or of an answer; or upon a dedimus, obtained by the defendant to take his answer: in the country; or upon his praying for time to answer; and likewise for want of an answer to an amended bill, after an answer has been put into the original: bill, if no injunction has been before obtained or applied for.(a) A special injunction is obtained only on special mo-' tion or petition, with notice to the other party, and is applied for sometimes on affidavit before answer, but most frequently upon the merits disclosed in the defendant's answer. The injunctions before answer are granted in cases of waste, and other injuries of so urgent a nature that mischief would ensue if the plaintiff were to wait till the answer is put in. But the court will not grant an injunction whilst a plea or demurrer to the bill be pending;(b) for until that be argued, it appears not, whether the court has cognizance of the cause.(c) The injunction which is granted in this stage of the suit, is to continue till answer or further order; but the injunction which is obtained upon the merits confessed in the answer, continues generally to the hearing of the cause.(d)
...W.” Here it may be proper to observe, that by one of filed. the provisions of our statute, no injunction can issue in any case until the bill is filed with the proper officer of the court,(e) and by one of the rules of our court, every order for an injunction, whether made by the Chancellor, or by a master in his absence, shall regularly be entered with the register or assistant register, previous to the sealing of the process by the clerk.(f) These few remarks being made, for the purpose of showing the nature and kinds of an injunction, with 4. In what the manner in which they are obtained, filed and en“tered, &c. the compiler will now proceed to the examination of those cases in which they are obtained, and in which they are intended to give relief, and of which he proposes to treat in the due order of succession. They are as follow:
1. To stay proceedings in a court of law.
(e) 1 N. R. L. 489. s. 8. vember, 1810.