The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1845-04-11

possible. The tenth section says "ln proceed
tngs under this act, all persons interested in tn
subject matter OF the suit or in the premises in
tended 10 be sold, may, ON application to the cour
wherein The suit Is pending, become parties a
any time before final judgment" And the l5,l
section provides that persons having liens on th
premises, and whose claims are not due at ih
time of the commencement of the suit, may be
come parties; and the 231 section declares iha
"paries in interest within the meaning Of thi
act, shall include all persons who may have an,
legal or equitable claim TO lands or lots upoI
which lien may be attempted to be enfo ced un
der the provisions Of this act" BY this il will b,
seen that all persons whose interest, either lega
or equitable. direct or remote, may by any posi-
biiiy be affected by the proceeding, may becom,
parties; and they not only have the right to be-
come parties, but, from the unlimited power
which the court hns 10 settle and finally deter
mine all their rights and interests, of whatever
name or character they may be, so Far as they may
be affected by the lien, they necessary parties
as much as in any chancery suit whatever. And
the manner OF making them parties is the same
as in ordinary chancery suits; for, by the 9Th
section, 1t is provided, "for the purpose of bring
ing all parties in interest before the court, the
court shall have power to permit amendments to
any part Of the pleadings, and to issue process
make all orders requiring parties to appear, and
requiring notice 10 be given by publication in
newspapers that arc or may be authorized in pro-
| ceedings In chancery.'
We see the same mode prescribed for making
new parties adopted by courts of chancery and
should it he made to appear to tho court, at any
time, that other persons were interested, the court
would compel the complainant to make Ike ne
IF hy bis ai,i rr
the usual aud necessary steps to bring in such
new parties As TO the parties, then, the pre-
cecding is, in all its features chancery proceed
ing, and totally inconsistent with a suit at law.
Wewil now examine further the practice pre-
scrlbed and powers expressly conferred by the ac,
10 arrive at the relief to be afforded
And, first, OF making up issues. By the 7h
section ct the act. it is provided that the defend.
ant shall answer the bill under oath, "and the
plaintiff shall except or reply to the answer as
though the proceeding was IL chanccry. The an
swer shall I've regarded as the plea of the defend
ant, and by a replication thereto an issue or is.
sues shall be formed, " hich shall be tried by the
court, or by jury under the direction Of the
court, Us the court may direct, or the parties
agree The 9Th section provides that the de-
PENDANTS shall answer the bill on before tho day
on which the cause is set for trial, and the issue
direction of the court and oral I, slimonv shall lr
received as in cases at law. The 10Th section
provides that different creditors claiming the be-
neft Of the lien, may contest each others rights
"and upon all questions made Ivy parties, the
court shnl require issues of law or fact tn be form
ed. SO as TO bring about speedy decision thereof"
These are all the specific provisions in relation
to making up the issues which are ordinarily 10
he made up by the bill, answers, aud replication
alone; hot, IN extraordinary cases. issues, as in
the court OF chancCry, are to he made up under
the direction and discretion of the court, and, 10
attain all the ends Of justice, more comprehensive
powers could not be useful or desired. They are
idenlicay tho same with those known TO the
courts of chancery, and to those alone. AS in
chancery cases rejoindcr can he filed, the repl-
cation must of course, he general; and hence, il
| the answer sets up new matter which requires 10
| he admitted and avoided, or Otherwise specially
replied to, no doubt can he entertained hut II
might be done by amending the bill, and inserting
the new matter in the charging part Of the bill
and thus explaining it as in ordinary cases in
chancery. Thus should defendant como in
and set up an incumbrancc and mortgage, as by
the the 22l section. the complainant would have
a right 10 contest its validity by showing fraud
payment, or the like. The only appropriate mode
| ~
ter, would be by amending his bill, as above suc
gesled. But, as there may be so many defend
ants, who may have such variety of compllcat-
ed, jnrring and hostile interests whose rights as
we shall presently see, may he tried at different
times, tue 9Th and 18th sections, as if to leave NJ
power wanting which is possessed by equity tr
buuals. provides for making up such special is
| sues, under the direction Of the court may ht
deemed necessary to attain the end sought, but j
was not Intended to authorizs any new mode, o.
invent any new plan. for constructing issues un
known both to courts Of law and equity. These
sections must only he understood as adopting, IL
this proceeding, what was before familiar to courts
of equity; making up iegncd issues, orders o
reference TO master to Inquire and repor, as t;
particular matter, and the like.
We will next examine as TO the form Of trial l.
he pursued in this case. Ii is insisted that in ih
9TH section there is departure from the know
course of chancery proceedings. 1t says ian is
sue or issues shall be found which shall he ,rie,
by the court, or by jury under the direction o
the court, as the court may direct or the partie
agree So far from this being departure fror
the mode of proceeding in chancery, it is a strc
and lcuered description Of it. The Same discre
iion is here given TO The court which is posscssc
by thts courts. Should the parties agree t. have
trial by the jury, and the court should make N
, special order ia the case, jury would he called
or should the court think proper TO call TO its al
E jury,it could do so notwithstanding both pal
ties should object. otherwise the trial would b
: before the chancellor as in ordinary cases. i
this, as in all its other features thus far, we fin
e the course Of chonccry courts provided.
f The 9Th section provides that" Oral testimon
i shall be received in cases of law" Here is tn
y first, and indeed, the only substantial deparlur
I to he fund IN 4hs act from the usual and appro
: pirate chancery practice; and yet this dcpnrur
: can hardly I've said to he substantial depauur,
a at least not very important one; for eth,
Q party may IL they choose pursue the usual mod
Of taking deposiions, so as he should not della
the other party thereby, for this provision is il
e troduced for the purpose alone of cxpcdiiiug ii
# proceedings. And can it with propriely be sal
e that because the legislature has seen fit to n,
Il thorize the parties TO introduce oral testmon
& on the trial If they choosc, for that reason aon
d il shall be held not to be a chanccry proceeding