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statute 31 Edw. III. c. 12., a writ of error must be first brought into the court of exchequer chamber.1

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THE American colonies were settled before English equity had been reduced to a system under Lord Eldon. Under the pioneer conditions in America, there was little need for the elaborate machinery of the English Court of Chancery, which was in large part concerned with family settlements and the transactions of wealthy land-owners. Whether there was any substantial hostility in the colonies to equity as such has been disputed. Pound takes the position that the very notion of equity and of discretion in the application of law went counter to Puritan ideas, and that this was an important reason for the hostility to equity in England during the Commonwealth and in the New England colonies. Chafee has suggested that there was no real hostility to equity as such in the colony of Massachusetts Bay, and explains the failure of some of the colonies to set up separate courts of chancery on the ground that this would have been unnecessary and expensive. Whether this was the primary reason for the reluctance of the New England colonies to set up separate equity courts, or whether the reason lay rather in Puritan hostility to equity and to a feeling that the Court of Chancery in England was sister to the hated Courts of Star Chamber and High Commission, are questions which cannot be answered with confidence in the present state of the colonial records. It seems clear that the fact that in some colonies chancery powers were vested in the royal governors or persons appointed by them did not increase the popularity of equity, and it is also clear that the colonists generally became much attached to the institution of trial by jury in civil cases. For whatever combination of reasons, while "courts of chancery had existed in some shape or other in every one of the thirteen colonies" 5 prior to the Revolution, in many instances those courts were legislative bodies, while in other instances equity powers were exercised by the ordinary courts of law. In Massachusetts, for example, the General Court or colonial legislature exercised the powers of an equity court

1 See pp. 7-8, supra.

2 For a bibliography, see 1 Chafee and Simpson, Cases on Equity (1934) 12-13.

3 See Pound, The Spirit of the Common Law (1921) 53-54.

* See Chafee, Introduction, Records of the Suffolk County Court 1671-1680 (ed. Morison), 29 Pub. Col. Soc. Mass. (1933) 1-li.

5 Wilson, "Courts of Chancery in the American Colonies." 18 Am. L. Rev. 226 (1884), reprinted in 2 Select Essays in Anglo-American Legal History (1908) 779.

for many years,' and the regular courts of law exercised a considerable amount of equity jurisdiction. There were, however, regularly constituted courts of chancery in some of the colonies.

After the Revolution, most of the newly-constituted states established courts of chancery, but at first these for the most part administered only a rough layman's equity. There was no American equity jurisprudence; the English precedents were inaccessible and not well settled, and there was in any event a hostility to all things English; many of the judges were laymen. The history of equity in the United States as a system of law as distinguished from a system of lay magisterial discretion in hard cases dates from the second decade of the last century. Joseph Story became a Justice of the Supreme Court of the United States and began to sit in equity cases in the Circuit Court for Massachusetts in 1811; James Kent became Chancellor of New York in 1814. At that time the equity of the English Court of Chancery was becoming settled under Lord Eldon, and the time was ripe for the building of an American equity jurisprudence. The judicial labors of Kent and Story did much to domesticate equity in the United States; their writings, perhaps, did even more. Most of the original states developed courts with full equity powers comparatively early in the last century, and the newer states created such courts.*

But history has left its mark. The New England states were slow in developing full equity jurisdiction - indeed, Massachusetts did not have it until 1877 - so that early New England equity cases are apt to turn upon the meaning of particular statutes granting partial jurisdiction. Pennsylvania equity, also, has had a checkered history; prior to 1836 there were no equity courts at all, with the results that the common-law courts absorbed a considerable amount of equity into the law, sometimes in a rather awkward fashion, and that there was a considerable amount of equitable relief by special acts of the legislature. In Georgia, there was jury trial in all equity cases as late as 1830; and in North Carolina, there is jury trial of

1 See Woodruff, "Chancery in Massachusetts," 5 L. Q. Rev. 370 (1889), reprinted in 9 B. U. L. Rev. 168 (1929).

2 See Chafee, Introduction, Records of the Suffolk County Court 1671-1680 (ed. Morison), 29 Pub. Col. Soc. Mass. (1933) li-lvi.

3 See Pound, “The Place of Judge Story in the Making of American Law,” 48 Am. L. Rev. 676, 695-696 (1914).

4 As to the development of equity jurisdiction in the United States prior to 1835, see Walsh, "The Growing Function of Equity in the Development of Law," in 3 Law: A Century of Progress (1937) 145-155.

5 See Fisher, "The Administration of Equity through Common Law Forms in Pennsylvania," 1 L. Q. Rev. 455 (1885), reprinted in 2 Select Essays in Anglo-American Legal History (1908) 810.

6 See Cowan, "Legislative Equity in Pennsylvania," 4 U. Pitt. L. Rev. 1 (1937).


right in some equity cases today. Moreover, the civil law origin of the law of Louisiana and the Spanish influences on the law of Texas have had their effect on equity in those states.2

By Article III, Section 2 of the Constitution of the United States, "The judicial Power shall extend to all Cases, in Law and Equity" of certain classes. By the second clause of the same section the Supreme Court is given original jurisdiction of certain cases, chiefly "those in which a State shall be a Party." "3 Since this clause makes no distinction between law and equity, it is apparent that the original jurisdiction of the Supreme Court extends to both. When the first Congress created the inferior federal courts by the Judiciary Act of 1789, it followed the same plan. No separate equity courts were created; the same courts, circuit and district, were to administer law and equity, but on different sides of the court and by a different procedure. Some of the states followed this lead; others retained the system of separate courts. Then, beginning with 1848, when the Code of Procedure proposed and drafted by David Dudley Field was adopted in New York, there came a vigorous movement to merge or fuse law and equity. This movement spent its original force by about 1887, when some twenty-two states and territories had adopted codes of procedure purporting to abolish the distinction between actions at law and suits in equity, but has recently been revived, as evidenced by the Illinois Civil Practice Act of 1933 and the Federal Rules of Civil Procedure of 1938. We shall consider later the effects of such unification of civil procedure. For the time being, it is necessary to consider the separate system of equity procedure, not only because it is still followed in a number of important jurisdictions and not only because many important doctrines of substantive law in all jurisdictions can only thus be understood, but also because it is essential to an intelligent comprehension of the unified practice.

At the present time, equity in the United States is administered in one of three ways. (1) Equity may be administered in a separate court from law and by a different procedure. This was the English system prior to 1875, and is still the system followed in Arkansas, Delaware, Mississippi, New Jersey, and Tennessee. (2) Equity may be administered in the same court as law, but by a different procedure and on a different side of the court. This was the federal system prior to September 16, 1938, and is the system in Massachu

1 See Worthy v. Shields, 90 N. C. 192 (1884); Porter v. Armstrong, 134 N. C. 447, 453-454 (1904); Board of County Commissioners v. George, 182 N. C. 414, 417 (1921); Note, 2 N. C. L. Rev. 45 (1923). Cf. pp. 631–632, infra.

2 See Haas, "Does Equity as It Prevails in Common-Law Jurisdictions Obtain in the Civil Law State of Louisiana?" 62 Am. L. Rev. 430 (1928); Britte, "Early Development of Law and Equity in Texas," 26 Yale L. J. 699 (1917). 3 See p. 12, supra.

4 See Simpson, "Fifty Years of American Equity," 50 Harv. L. Rev. 171, 179-181 (1936).

5 See Ch. XVIII, infra.

setts and some fourteen states. Where this system prevails, statutes usually provide for the easy transfer of causes from law to equity and the reverse. (3) Equity may be administered in the same court and by the same procedure as law. This has been the system in New York since 1848 and is now the system in the federal courts and in some thirty states and territories. This is the so-called "code" procedure, and will be considered further in Part Four of this book. The student should ascertain to which of these groups his own state belongs.


THE modern jurisdiction of equity has developed in three main classes of cases.

First, there are cases where a right exists at law but the legal remedy is inadequate. For example, the plaintiff may have a contract right against the defendant for the conveyance of a desirable building lot. At law, all he can get if the defendant refuses to convey is damages; but in equity he may be able to compel the defendant to convey the land to him. Or the defendant may be operating a factory in such a way as to emit noxious fumes which render the plaintiff's nearby property uninhabitable. Again, the plaintiff's only remedy at law is to sue for damages, but in equity he may be able to get an injunction against the continuance of the nuisance. Such equitable remedies for the better enforcement of a legal right by way of specific performance, specific reparation, or prevention, fall within the concurrent jurisdiction of equity.2 In the same group may be placed those equitable remedies such as interpleader, bills of peace, and bills quia timet which have for their purpose the more effective securing of rights recognized at law.3

Second, there are cases where there is no legal right at all, but nevertheless a right is recognized by courts of equity. The most important example of this, the exclusive jurisdiction of equity, is to be found in the law of trusts. The trustee has the entire legal interest in the trust property; at law the beneficiary (or cestui que trust, as he is often called) has nothing. But in equity the beneficiary has a right against the trustee that he deal with the trust property for

1 See 1 Story, Equity Jurisprudence (13th ed. 1886) § 75.

2 This classification is that of Story. Pomeroy, Equity Jurisprudence (4th ed. 1918) §§ 136–143, adopts a different classification. He uses the terms "concurrent" and "exclusive" to refer to the remedy; thus, he would say that a money decree against a trustee was an example of the concurrent jurisdiction, while an injunction against a legal tort was an example of the exclusive jurisdiction, because only equity courts grant injunctions. This classification is adopted in Clark, Equity (1919) § 34, but is of little value at best and misleading at worst.

3 These special equitable remedies are considered in courses on Equity, and are fully dealt with in Chafee, Cases on Equitable Remedies (1939).

4 See 2 Story, Equity Jurisprudence (13th ed. 1886) § 960.

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the beneficiary's benefit. Again at law the holder of a mortgage on land may have an absolute title after the day for payment of the

mortgage debt has passed, but equity will under certain circum- I was te

stances require him to reconvey to the mortgagor upon payment of the debt and interest. In such cases as these equity is not enforcing more effectively rights which the law recognizes, but is creating new equitable rights quite independently of the law.

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Third, in some instances the powers of equity may be invoked merely to assist in the conduct of litigation in the law (or equity) courts. For example, a plaintiff in an action at law may wish to find out some facts which are peculiarly within the knowledge of his adversary. Where the procedure at law does not permit him to compel such disclosure in the action itself — and it did not until comparatively recent times it may be desirable for him to bring an equity suit for discovery in aid of the action at law. Or it may be possible for him by a proceeding in equity to preserve the testimony of an old or ailing witness in view of the prospect of a later action at law in which that testimony is likely to be needed. These are illustrations of the auxiliary jurisdiction of equity, as it is usually called.1

The rules and principles laid down by the equity courts bulk large in many of the substantive law courses. The entire course on Trusts and most of the course on Mortgages, for example, are concerned with the exclusive jurisdiction of equity. Equity courses are concerned mainly with important aspects of the concurrent jurisdiction. This course does not, therefore, attempt any complete study of substantive equity but is rather an introduction to such study later in the law school course.

The student will realize that any classification of equity jurisdiction is purely a matter of convenience, and that no classification even that here outlined has any absolute validity or claim to acceptance. But the field of equity is so large that it cannot be surveyed even in a preliminary way without division.3

1 It is also sometimes referred to as the assistant or supplemental jurisdiction. See 1 Story, Equity Jurisprudence (13th ed. 1886) § 75, 2 id. § 1480. 2 Cf. Maitland, Equity (2d ed. 1936) 20-21.

3 The student who wishes to get some idea of the field of equity is advised to read Simpson, "Fifty Years of American Equity," 50 Harv. L. Rev. 171 (1937), bearing in mind that it does not deal with the exclusive jurisdiction to any great extent; and then to read Scott, "Fifty Years of Trusts," 50 Harv. L. Rev. 60 (1937), for a bird's-eye view of the most important part of the exclusive jurisdiction.

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