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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.

ClassIFICATION OF EQUITY JURISDICTION. 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. 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).

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

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- Ele waste 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.

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.

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.


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.




The mode of procedure in the Court of Chancery was quite different from that in the superior courts of common law. This resulted partly from the circumstance that the early ecclesiastical chancellors naturally enough took for their model the procedure in the ecclesiastical courts with which they were familiar, but partly also from the fact that the common law procedure was poorly adapted to the elucidation and adjudication of complicated controversies. Moreover, the Chancellor was under no necessity of requiring the pleadings in cases before him to simplify and narrow the points at issue for the determination of a jury, and at the same time was conscious of the practical desirability of getting full disclosure of the facts from the parties. Nevertheless, the influence of the common law system of pleading was by no means negligible, as might have been expected in view of the fact that for a long time there was no separate Chancery bar and that the lawyers practising before the Chancellor were members of one or the other of the Inns of Court and so trained in the common law tradition. As we shall see, the demurrer and plea in equity were adapted from the common law practice, although the bill, the answer, and the mode of trial were primarily derived from the practice of the ecclesiastical courts.3

We shall here describe the course of proceedings in a suit in equity in the classical period of English chancery practice and indicate briefly some of the changes which were later made in England and in the United States. As was pointed out in connection with the similar outline of the course of proceedings in an action at law, not all the steps which will be described were likely to be taken in every case; but some of them had to be, and most of them might be. Later in this part of the book we shall consider in greater detail certain of those steps which are of most importance today. 50

1 1

1 For a full account of the English equity practice prior to the Judicature Acts, see 9 Holdsworth, History of English Law (3d ed. 1944) 335–408.

2 The doctors of the civil law of Doctor's Commons who practiced in the ecclesiastical courts and the Court of Admiralty seem never to have been permitted to practice in the Court of Chancery, in spite of the fact that their legal training was much more like that of the earlier Chancellors than was that of the lawyers of the Inns of Court.

3 See Langdell, Summary of Equity Pleading (2d ed. 1883) $$ 1–53.

4 This may be taken as being the time when Lord Eldon held the great seal (1801-1806, 1807-1827).

5 See Ch. XIII, infra.

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1. The bill. The first step in a suit in the Court of Chancery was

. the filing of a bill. This was originally a begging petition to the Chancellor and was very likely to set forth special personal reasons why the petitioner, usually described as “your orator”, should be given relief, as that he was poor, or ill, or an old soldier of the King's armies, or a faithful servant of the King, or the like. But from the

, beginning it stated the plaintiff's ? complaint and prayed for relief. Unlike the declaration in an action at law, which was required to be in Latin, a bill in equity might be and almost always was in English.3

As the procedure before the Chancellor became more settled, the bill assumed a more formal character. By Lord Eldon's time, a

. complete bill might contain nine "formal parts”:* (1) the address, or direction of the bill to the Chancellor by name (e.g., “To the Right Honorable John Lord Eldon, Baron Eldon, of Eldon, in the County of Durham, Lord High Chancellor of Great Britain”); (2) the introductory part, which named the plaintiffs and stated their addresses and the capacity in which each sued; (3) the stating part, often called the "premises”; which will be more fully considered hereafter; (4) the confederacy clause, which alleged that the defendants had combined with other persons unknown to injure the plaintiff, and prayed that these others might be made defendants to the bill when discovered — this was a survival from the time when, as we have seen, one important ground of equity jurisdiction was the obstruction of the remedy at law by the confederating of rich and powerful men to defeat justice; 5 (5) the charging part, of which more hereafter; (6) the jurisdiction clause, which stated that the plaintiff had no remedy, or no adequate remedy, at law; (7) the interrogating part, which was a prayer that the defendant might be required to answer on oath the allegations of the bill 6 and any specific questions stated ;? (8) the prayer for relief, which specified the relief, interlocutory and final, which the plaintiff sought, to be more fully discussed below; and (9) the prayer for process, asking that a

1 In the early days, as we have seen, this petition might be addressed to the King or to the King's Council.

2 The petitioner in an equity suit was usually described in the classical period of equity as the "orator”, but the term plaintiff will be used herein as being the term now ordinarily used.

3 Hence the term "English bill", which occurs occasionally in the older reports. This term was used, for example, to distinguish a bill in equity in the Court of Chancery from a petition to that court on its common law side. Cf. pp. 594–595, supra. Similarly, a bill in equity in the Court of Exchequer, which as we have seen exercised some jurisdiction in equity, was ordinarily called an "English bill in the Exchequer”.

4 It is not to be understood that every bill in equity contained all of these formal parts. See Keigwin, Cases on Equity Pleading (2d ed. 1933) 138–139.

5 The only substantial ground for this survival seems to have been an early idea, long since discredited, that new parties could not be added later unless such a foundation was laid for doing so.

6 This prayer was called the general interrogatory. 7 These were called special interrogatories.




writ or writs of subpoena issue to the defendant or defendants. A form of bill in equity of the classical period is given later in this chapter, and should be studied in this connection.

The stating part of the bill was in substance a declaration. It stated the plaintiff's case, and was required to contain allegations of fact constituting a cause of action. It was the heart of the bill, and, except for the formal beginning and the prayers, the only absolutely essential part. If matters had stopped here, the first pleading in equity would have been less stereotyped to be sure, but substantially analogous to the declaration in an action at law.

But matters did not usually stop here. The plaintiff ordinarily wanted to find out what the defendant knew or would say about various matters of evidence, and in order to "search his conscience" as the old books said, the plaintiff would frequently desire to set out those matters of evidence in his bill to get discovery with regard to them. Since, as we shall see, the defendant ordinarily had to answer the bill line by line, pleading matters of evidence was. an effective way of probing the defendant's conscience. Such matters were therefore pleaded in the charging part of the bill. But this part had another and often equally important function. In classical equity, as we shall see, the plaintiff could reply to affirmative defenses set up in the defendant's answer only by amending his bill. If he knew or suspected that certain defenses would be set up, it was therefore to his advantage to include anticipatory replies thereto in his bill. By so doing, he could get discovery as to matters relating not only to the anticipated defenses but as to his own allegations in reply to them. Moreover, if a defense appeared upon the face of the bill, the bill was demurrable, and hence it might be necessary to negative the defense in the bill. For example, if the bill was filed long after the cause of action arose, it might be dismissed for laches on the face of the bill unless the reasons for the delay were explained therein. The charging part of the bill thus might serve either or both of the two purposes of aiding discovery and anticipating defenses.

The prayer for relief stated the final relief which the plaintiff sought. At law, the relief available was pretty well stereotyped by the form of action chosen, but in equity the same facts might well allow various sorts of relief at the option of the plaintiff, and he had to specify which he wanted. For example: "If ... a bill brought by a wife against her husband alleges adultery, cruel treatment, desertion and failure to support, but makes no prayer, the question arises, what does the lady want, absolute divorce, limited divorce or

1 See pp. 639-642, infra.

2 This desire was emphasized in most cases by reason of the old rules as to competency of witnesses and as to mode of trial in equity, which, as we shall see, was by depositions. See pp. 632–633, 692-693, infra. It was sometimes necessary as a practical matter for the plaintiff to prove his case entirely by securing discovery from the defendant in the answer. See 9 Holdsworth, History of English Law (3d ed. 1944) 357–358.

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