THE PRACTICE OF THE COURT OF CHANCERY. CHAPTER I. THE COURT. of Chancel practice. and In a case recently before the Chancellor, he took oc- See 7. casion to bring into one view the several sections of the Vol 1. p. 10Revised Statutes as to the distribution of the powers of 11(a) Powers the court; and prescribed the mode in which causes and lor: regulamatters are to be brought to hearing before himself and the tion of bearVice Chancellors. He observed: When the proceedings Ings, are originally commenced before a Vice Chancellor, in a case where he has jurisdiction under the second section, he has as full power to hear and finally decide the cause, and to enforce the performance of any order or decree therein, and to revise and correct the proceedings of any inferior officer of the court, as the Chancellor himself. But all decrees and orders made by him are subject to be reversed, discharged or altered by the Chancellor, on appeal. (2 R. S. 177. § 57.) Where a cause commenced before a Vice Chancellor is in readiness for hearing, the proceedings may be removed, and the cause heard before the Chancellor in person, where from the difficulty of the case, or for any other reason, the latter may think proper so to direct. (2 R. S. 178. § 63.) If a cause is brought before the Chancellor, under this provision of the revised statutes, the whole case is before him. The orders and decrees made therein by the (4) The chapters and sections of the first volume are those of the present. Where a ch. and §. are VOL. II. 1 referred to in this. without desig- CHAP I. Chancellor, are to be entered with the Register or assistant Register. And all subsequent proceedings are to be before the Chancellor, unless by his order the cause is again remitted to the Vice Chancellor. But where the Chancellor, or the Vice Chancellor of another circuit holds the stated term of a Vice Chancellor, as authorized by the fifty third section (2 R. S. 177. § 53.) the order, or decree, is to be entered, as made by the Chancellor, or substituted Vice Chancellor, holding the stated term of the Vice Chancellor of the particular circuit, where the proceedings were pending; and it must be entered in the office of the clerk residing in such circuit. In such cases the subsequent proceedings in the cause will remain, and be continued before the Vice Chancellor of that circuit. The fifty third section has made no provision for the hearing and decision of a special motion, or other collateral application in the cause, in vacation; or where it would be inconvenient for the Chancellor, or the Vice Chancellor of another circuit to hold the stated term of a Vice Chancellor who had been counsel in the cause, or who for any other reason could not hear and decide upon the motion or other application. In such a case there can be no doubt of the right of the Chancellor to direct the motion or application to be made before himself. And under the general power given by the sixth section, (2 R. S. 169. §6.) he may authorize the same to be heard and decided by the Vice Chancellor of any other circuit, at such time and place as will be most convenient to such Vice Chancellor and to the parties in the cause. The fourth section of this title provides that the hearing or decision of any motion, or of any cause set down for hearing before the Chancellor, may be referred by his order to any Vice Chancellor, subject to the appellate jurisdiction of the Chancellor. (2 R. S. 169.) The practice of entering an order and setting down a cause for hearing, was abolished by the rule of the 4th of August, 1823. By the former practice, an order to set the cause down might be entered at any time after the cause was in readiness for hearing. The proper construction of that part of the section therefore is, that either party may apply to the Chancellor as soon as the cause is in readiness, for leave to bring the same to hearing before such Vice Chancellor as may be most convenient to the parties or their counsel, and who has sufficient leisure CHAP. I. to hear and decide the cause. The petition on which such application is founded, should state the nature of the suit, and show that it is in readiness for hearing, either upon bill and answer, plea or demurrer, or on pleadings and proots, or otherwise. And due notice of the application must be given to the adverse party. If the parties neglect to make such application, and more causes are placed upon the calendar of the Chancellor than he is able to hear and decide, he will, without the request of either party, refer such causes as he is unable to hear and decide in person to such Vice Chancellor as is most convenient. Under this provision of the revised statutes the Chancellor will retain such causes to be heard before himself as will, from the nature of the litigation, or the amount in controversy, be likely to be carried up by appeal; and also such causes as have been partially examined by him on the merits upon motion to dissolve an injunction, or otherwise. Mortgage cases, and other causes in which there is no real litigation, and which are entitled to a preference by being placed in either of the three first classes on the calendar, will not be referred to a Vice Chancellor, unless some special reasons are shown which may render such refer ence necessary. When the order is general, referring the cause to a Vice Chancellor to hear and decide the same, the whole cause is to be considered before the Vice Chancellor, as fully as if the original proceedings had been commenced before him; subject to the restrictions which are contained in the third section. And all motions, petitions, and other questions which are subsequently made, or presented, or which may arise in the cause, must be heard and decided by the Vice Chancellor, unless otherwise specially directed in the order of reference. But where a special motion or petition which only relates to some collateral matter, or particular branch of the cause, is referred to a Vice Chancellor to hear and decide thereon, the cause still remains before the Chancellor. Every proceeding which is necessary or proper to enable the Vice Chancellor to decide the particular matter referred to him, may be done under his order or direction. He may therefore direct a reference to a master to ascertain facts, make an order for the production of books CHAP. I. § 9. Vol. 1. p. 11. § 11. See vol. 1. p. 12. Oath of Office. (a) $ 12. Vol. 1. p. 12. Office hours. 17. See Vol. 1. p 14. Solicitor's sion. No. 1. certi. ficate of com and papers, &c; and may enforce the observance of any such order made by him in the same manner as if the whole case was before him. As to every other branch of the cause, the proceedings must still be had before the Chancellor, as if no such reference of the particular matter had been made. 6 Even in these cases of a reference of a motion or other special application to a Vice Chancellor, the authority given to the Chancellor by the sixth section is sufficiently extensive to enable him to direct all other questious and proceedings in the cause, to be had and heard before the Vice Chancellor to whom the particular matter is referred. In such a case a special provision to that effect may be inserted in the order of reference. ' James Vanderpoel is now Vice Chancellor of the 3d, and Addison Gardiner of the 8th circuit. 'I do solemnly swear,' or affirm,' as the case may be, that I will support the constitution of the United States, and the constitution of the state of New-York, and that I will faithfully discharge the duties of the of fice of (Solicitor of the Court of Chancery, &c. See Vol. I. p. 11, 12.) accordingto the best of my ability.'(b) The office hours of the Register and Assistant Register, &c. in the city of New-York are, by a recent act, (c) required to be from 9 A. M. to 4 P. M. The majority of candidates for admission are those already licensed in the supreme court. In such cases, the forms No. 1 to 5. are unnecessary. The candidates and Counsel- leave their licenses with the Register or Assistant Regislor's, admis- ter, (the present proceeding being before the Chancellor, Vol. 1. p. 37-9.) who will attend to the application, obtain and enter the order No. 6. and give notice to the applimencement of cant accordingly. The examination is usually in term, clerkship. though the order may be applied for on a special motion day, (Vol. I. ch. 11. § 15.) and admission obtained in vacation. The Chancellor, except when he chooses to examine personally, refers it to a Vice-Chancellor or Order for experienced Solicitor and Counsellor; or in term, will name perhaps three Solicitors and Counsellors for the 2. ertificate of allowance for classical studies. 3 term of clerk ip. 4. Certified (a) The oath or affirmation (b) Const. of N. Y. art. 6. § 1. 1 R. S. 119 (4) Act to amend certain proviVisions of the Revised Statutes, passed April 20th, 1830. CHAP. I. order. examina examination of all candidates, who at a convenient time and place ascertain the qualifications and character of the candidate, and report accordingly. The success- copy of said ful applicant obtains and delivers the report No. 7. to the 5. Certificate Register. &c. who enters the order No. 8. for admission, of clerkship. and administers the oath, No. 9. in presence of the 6. Order for Chancellor. The oath is prefixed to the Roll of So- tion. licitors or Counsellors, and signed, and the license, 7 Report of No. 10. sealed and certified by the Register, and signed Vice Chanby the Chancellor. Where the application is not found- cellor or Exed upon previous license the proceedings will then be: No. 1. A Certificate of Commencement of Clerkship: 'I certify that G. H. has this day commenced his clerk- 10. License. ship with me, as a student in Chancery. Utica, January 1 1830. N. W. Vice Chancellor of the fifth circuit, or H. R. S. a practicing (a) Solicitor of said court.'(6) Take this certificate to the Chancellor, or a Vice Chancellor, who upon satisfactory evidence, such as a diploma, affidavit of an instructor, or affidavit of the student himself, will grant: 2. A Certificate of Allowance for Classical Studies. It appearing satisfactorily to me, that the above named G. H. has pursued classical studies for four years since he arrived at the age of fourteen, let the term of his clerkship be three years, and an order be entered accordingly. January, 1, 1830. R. H. W. or N. W. Vice Chancellor of the fifth circuit.' File the certificate, No. 1. and No. 2. with the Register, &c. (Vol. 1. p. 37, 8.) who will enter : 3. An Order for the Term of Clerkship. At a court of Chancery, held for the state of NewYork, at the city of New-York, (or town of Utica,) on the first day of January, one thousand eight hundred and thirty: Present-Reuben H. Walworth, Chancellor, (or Nathan Williams, Vice Chancellor of the fifth circuit.(c) (a) The application being ex parte, the applicant should show every thing necessary to bring him within the rules entitling him to admission. Sed vide, 3 Cowen 22. (b Articles of clerkship are seldom entered into, see a form Tidd's Forms, ch. 2. § 1. See Arch- aminers. 8. Order for |