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102 FIRST REPORT of COMMISSIONERS on CRIMINAL and
General Observations and Suggestions.according to the circumstances of the case. But if the writ be not confirmed, or
rendered absolute, then the court proceeds as a court at common law, to take cognizance
of the original action.
One advantage attending this mode of proceeding in cases of equity, is, that the
Judge who has to decide, either finally on the merits, or previously on the question
of relief, has all the evidence before him, instead of sending the question as an issue
to be tried by another court; a practice which must always be attended with great
expense, uncertainty, and delay.
The other species of relief known in foreign law, is termed judicial, and, as its
name implies, may be granted by the Judge himself, in the exercise of what is termed
his nobile officium, without the necessity of any recourse to the Sovereign. This
relief is chiefly against errors, or slips in pleading, or defaults, and is generally
granted upon terms, so as not to prejudice the other party.
Having given this short view of the mode of proceeding in cases of equity in the
foreign courts, we shall now proceed to notice the English practice, in order to
suggest such alteration in the practice of the Court of Equity, in Jamaica, as by
reference to that which is in use in other countries, and general principles, we
may deem practicable or advisable.
Process.And first, with respect to the process of the Court of Chancery to compel an
appearance, on the part of the defendant, to the suit.
Subpoena.The subpoena, we think, should be returnable on a day certain, regard being had
to the distance at which the defendant resides; and it should contain in it a clear
notice to the party of what he has to do, and the consequence of his default to do
it within the time limited.
The party may be guilty of contempt, either by not appearing , or by not answering
or pleading, or by refusing to do some act required of him by the court.
In the first case, by the practice in the Dutch courts, the plaintiff, in common law
cases, without any necessity of entering an appearance for the defendant, would be
at liberty, after three citations, and defaults at regular intervals, to file his intendith
(as it is termed) with his vouchers; and if the case be not clearly made out, but very
nearly so, and the plaintiff be of good character, the court admits him to swear to
his claim, or take the suppletory oath, as it is termed in the civil law, and then obtain
judgment, and take out execution against the defendant; but he is not entitled to
have his intendith (as in England the bill is) taken, pro confesso, and thus snap an
unjust judgment without any proof, as may be sometimes the case*.
But there may be cases in which the answer of the defendant, or his executing
some act, may be material. In the latter case, a contempt process or civil confinement,
termed gyzeling, issues, by which the party in contempt is ordered to appear
daily at a certain tavern, till he does the act; and if he stands out for a fortnight,
or does not appear daily, he is then ordered into strict gyzeling, or gaol, where, if
he is another month in contempt, the court orders one of its clerks to do the act
for him, or assesses the damages, as the case may be; and thus the necessity of
keeping a party in prison, for years perhaps, under contempt process, is avoided.
This principle, so long in practice in the Dutch courts, has at length, though
tardily, been adopted by the English law, as regards trustees.
Deferre et Referre Juramentum. Voet ad Pandectas. tit. de Jure Jurando, L. 12. t. 2. n. 17.With respect to the answer on oath, either party is at liberty, by the practice of
the courts, to tender the oath or the other, on any particular or material point in
the cause; and the court may decide which shall take it, and the party refusing
to take it would thereby materially prejudice his cause: on the contrary, the party
accepting it has the full benefit of it, but no contempt process issues in this case, to
compel the answer on oath+. Whether
* The practice at Demerara, when Mr. Henry was appointed president, was to take the
plaintiff's declaration, or intendith, as proven, in cases of default, without any examination;
but Mr. Henry restored the old and more just practice of the court, in cases of default.
+ In England, if the defendant wishes to examine the complainant, he is obliged to file
a cross bill.
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first report of commissioners on criminal and civil justice in the west indies (jamaica) |
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/ 100-109 |
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"extract from mr henry's report on the colony of jamaica / to jeremy bentham esq / with his best respects" |
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