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separate equity procedure persists. Also, under the more modern equity procedure, cross-bills for discovery are inappropriate, since discovery is otherwise obtained.
In classical equity, it was necessary that the subject matter of a cross-bill be germane to the matter of the original bill. In other words, an entirely new and unrelated cause of action which the defendant might have against the plaintiff could not be set up by crossbill. The Federal Rules of 1912 required that cross-claims arising out of the transaction which was the subject matter of the main suit should be set up in the answer, and permitted any other cross-claims thus to be urged. In some states having separate equity procedure the requirement of germaneness still exists; 2 in others it has been done away with.
When a cross-bill was filed under the classical practice, the proceedings thereon were the same as on an original bill, with this exception, that a demurrer for want of equity would not lie to a crossbill. The plaintiff usually demurred or answered, and then the two bills were dealt with as a single cause. Under the Federal Rules of 1912, the plaintiff met a cross-claim in the answer by a replication. Under code procedure, a cross-claim for equitable relief is an ordinary counterclaim.
9. Replications. The ancient chancery practice was like that of the common law in that an answer in confession and avoidance was met by a replication, the replication (if by way of confession and avoidance) by a rejoinder, and so on as at law, the names of the pleadings being the same as in the courts of common law. But this system did not survive in equity practice. It worked at law well enough so long as no double pleadings were allowed, and after a fashion even after the Statute of Anne allowed several pleas by leave of court, since no multiple pleading was allowed after the pleas. It worked in the civil law system where each successive pleading was examined and allowed by the court before being filed. But in equity, with no rule against multiple pleading and no court supervision, it produced chaos. As a result, by the latter part of the seventeenth century, all operative pleadings after the answer ceased to be allowed. The only further pleading permitted, the general replication to the answer, was purely formal. It amounted simply to a joinder in issue by the plaintiff upon the allegations of the answer.
This was well enough when the answer did not set up affirmative defenses, or where if it did the plaintiff was satisfied to deny them as matter of fact, but it did not take care of the situation where the plaintiff needed to meet an affirmative defense with new matter —
1 As to whether this rule abolished the requirement that counterclaims be germane, see General Electric Co. v. Marvel Rare Metals Co., 287 U. S. 430 (1932).
2 Cf. Tyree, "Germane Pleadings in the Court of Chancery," 2 U. Newark L. Rev. 145 (1937).
where, in an action at law, he would have filed a replication by way of confession and avoidance. For a time, .even after the change in practice just mentioned, some equity courts allowed a special replication in such cases, but later these ceased to be permitted, and what the plaintiff had to do was amend his bill. But the plaintiff was allowed to file a special replication to a plea.
The Federal Equity Rules of 1912 gave the replication the status of an answer to a cross-claim, and this is ordinarily the situation with respect to the reply under the codes.1
10. Amendments. Amendments to a bill in equity under the classical practice were of two main sorts: (1) Those made to change or perfect the statement of the cause of action set forth in the bill, frequently to meet the situation resulting from the sustaining of a demurrer thereto; (2) those made to meet affirmative defenses set in the answer by the allegation of new matter in avoidance. The first sort were like the amendments to declarations at law with which we have become familiar. The second served the purpose of the replication at law.
Amendments in equity as at law could be made only by leave of court, but were allowed with somewhat greater freedom than at law. If the defendant had demurred to the bill, the plaintiff was allowed to amend on the payment of nominal costs at any time until the demurrer was set down for argument. If the defendant had answered, the plaintiff was entitled to one order for leave to amend as of right.2 When an amended bill was filed, the defendant was required to answer it, and the cause then proceeded as on an original bill.
Leave to amend an answer was much more difficult to secure. Since the answer was upon oath, the court was very reluctant to allow changes in it, and ordinarily would do so only in cases of obvious mistake. Where under modern practice the answer is merely a pleading, leave to amend it is much more readily granted.
11. Interlocutory relief. In an action at common law, in the absence of statute, no interlocutory relief was ordinarily available. Now, legislation allowing attachment and garnishment has sometimes made it possible for the plaintiff to insure the payment of a judgment if ultimately obtained by attaching the defendant's property or garnishing his credits.
In equity, it was much more often possible to secure temporary relief pending the outcome of the suit. Suppose, for example, that the plaintiff, entitled in reversion to certain premises, filed a bill
1 As to the situation under the Federal Rules of Civil Procedure, see Rule 7(a), p. 286, supra.
2 The early practice allowed the plaintiff to amend as many times as he wished whether before or after answer, but this was changed by an order of Lord Lyndhurst in 1828. See 1 Daniell, Chancery Practice (1837) 535–536.
against the life tenant to enjoin him from cutting ornamental timber on the estate. A final decree, if ultimately granted, would obviously be ineffective unless the defendant were restrained from cutting the timber during the period of the suit. From an early date the Court of Chancery would in a proper case issue an interlocutory injunction restraining the defendant until a final decree in the suit should be granted. This practice still continues. It is ordinarily necessary for the plaintiff to file a bond to protect the defendant against any damage which he may suffer by reason of the interlocutory decree if the controversy is ultimately determined in his favor.
Such temporary relief pending the decision of the suit may be granted in a variety of cases. If, for example, the plaintiff sues for the cancellation of a negotiable note on the ground of fraud, it is usual to ask for a temporary injunction against the negotiation of the note pending the decision in the cancellation case. Other examples of similar interlocutory relief will appear later. We shall also have occasion later to consider the effect of such interlocutory injunctions.
It was and is possible to obtain in equity other temporary relief than a preliminary injunction. In some cases a receiver may be appointed, and in a few instances courts have granted interlocutory relief in order to restore the status quo pending the determination of the suit. However, the only other measure of temporary relief which it is important for us to consider here is the writ of ne exeat.
This writ was issued in the early common law as a matter of prerogative to forbid a subject of the King from going outside the realm.1 This aspect of the writ has its analogies today in the prohibitions against emigration from some of the countries of Europe. But in England, by the eighteenth century, this use of the writ had ceased and it had become a purely judicial writ. It is only in this connection that we are concerned with it.
The judicial writ of ne exeat regno was an equitable remedy in the nature of bail at common law. It issued from the Court of Chancery on affidavits 2 and was directed to the sheriff commanding him to commit the defendant to prison until he gave security not to leave the jurisdiction without the permission of the court. While there are a few decisions which indicate that the writ was available only to aid in the enforcement of pecuniary demands, as for example in a suit by the vendor of land to recover the price, it is probable that it was available in classical equity whenever the departure of the defendant from the jurisdiction would impair the ability of the Court
1 See Goebel, "Constitutional History and Constitutional Law," 38 Col. L. Rev. 555, 573, n. 51 (1938).
2 As to the character of the ex parte affidavits which the plaintiff must file to secure the writ, see Jastram v. McAuslan, 29 R. I. 471 (1909).
3 See, e.g., Boehm v. Wood, Turn. & Russ. 332 (Ch. 1823).
of Chancery to give effective relief on final decree. For example, equity may exercise jurisdiction to compel the conveyance by a defendant, personally served within the jurisdiction, of foreign land. The only way such a decree can be enforced was and is by personal pressure on the defendant, and if he were allowed to leave the jurisdiction, this would be impossible. If the plaintiff is able to secure a writ of ne exeat, he can keep the defendant in prison until he gives bail, and the bail will normally be set at an amount which will be likely to insure compliance with the decree. Statutes in the United States have abolished this writ in some jurisdictions, but it is usual in such instances to provide for an analogous statutory proceeding.*
It is sometimes possible to secure temporary relief without a hearing. As we have just seen, the writ of ne exeat may issue on ex parte affidavits. So also if threatened action of the defendant would cause serious harm to the plaintiff, it may be possible for him to secure a temporary restraining order ex parte, on his bill and supporting affidavits, which will continue in force until a hearing on his application for a temporary injunction. Such hearing will ordinarily be held within a few days and the defendant will then have an opportunity to file counter affidavits and present argument as to why temporary relief should not be granted."
12. Trial. Under the classical practice, an issue of fact in an equity suit might be reached on plea and replication or on answer and replication. The mode of trial was the same in each case, and differed from that at law in two important respects. First, and fundamental, there was no right to trial by jury; the Chancellor decided questions of fact as well as questions of law. Second, evidence was taken by depositions and not in open court. The first of these differences remains today; the second is no longer substantially existent, as we shall see.
Although there was no jury in equity, the Chancellor, if he saw fit, might direct an issue to be tried at law. An action was then brought in one of the common law courts, usually the Court of King's Bench, in which the plaintiff in the equity suit declared on a wager that the fact was as alleged in his bill, and the case was thus tried by a jury on what was called a feigned issue. But the verdict was advisory only; the Chancellor might disregard it and find the fact to be otherwise than the jury had decided. Under modern American equity practice, feigned issues are usually abolished, but
1 See Archer v. Preston, 1 Vern. 77 cited (Ch.; before 1682); Enos v. Hunter, 4 Gilm. 211, 214 (Ill. 1847); Palmer v. Palmer, 84 N. J. Eq. 550 (1915).
2 This question is considered in detail in the course on Equity.
3 See, generally, note, 8 Temp. L. Q. 520 (1934).
4 See, e.g., N. Y. C. P. A. § 827.
5 More properly "hearing." See p. 685, infra.
6 See 3 Blackstone, Commentaries, *452.
the equity judge may impanel a jury if he deems it advisable. But, except in Arizona, North Carolina, and Texas, the verdict of the jury ordinarily remains advisory only.
Unless an issue was directed (and none was directed in most cases), trial of questions of fact in classical equity was by depositions solely. The procedure was as follows:1
"The evidence is taken by written interrogatories, upon which the witnesses are examined in private, none of the parties or their agents being present. The examination is conducted in London by the Examiner, a permanent officer of the Court, and in the country by a Commissioner specially appointed for that purpose. The interrogatories being framed beforehand by counsel without its being certain what witnesses will be forthcoming, or what answer a witness will give to any particular question, are framed to meet the contingencies which are likely to occur and are deemed necessary to be provided against. Several witnesses are frequently produced to prove the same facts or to prove facts leading to the material conclusion, from the uncertainty whether the one witness (who if examined orally and publicly would have been found sufficient), has in his deposition given sufficient evidence of the necessary facts. The Examiner or Commissioner takes down and records the answers of the witnesses to the written interrogatories, and is under the obligation of an oath not to disclose the evidence taken. The theory of the Court is, that the witnesses are subject to cross-examination; but the cross-examination by written interrogatories of witnesses, whose examination in chief is not known, is so ineffective and dangerous that it is seldom resorted to except where the witness is known to be friendly to the cross-examining party, and has previously communicated facts to be the subject of such cross-examination. If the witnesses are to be examined in the country, a Special Commission issues for the purpose. . . . A day is appointed for opening the Commission, generally at an Inn. Besides the Commissioner, there is a clerk; who is also sworn to secrecy. The Commissioner is furnished with the interrogatories and cross-interrogatories of the parties; and each witness is sent in with a note specifying the interrogatories which are to be administered to him. The Commissioner puts the interrogatory to the witness, often, if not generally, being obliged to translate it into less technical language more intelligible to the witness; whose answers are taken down and fair copied by the clerk. The process is very slow. . . . A day is fixed for what is called the publication of the evidence: the parties then, for the first time, get copies of the depositions, for which copies fees are of course charged. After publication no further evidence can be adduced without special leave of the Court.
1 First Report of Her Majesty's Commissioners Appointed to Inquire into the Process, Practice and System of Pleading in the Court of Chancery (1852) 7-8.