The depositions are copied on brief paper, and with the pleadings and copies of the documentary evidence form the brief for the hearing; for which the cause may now ordinarily be considered ripe. Sometimes, however, the parties move to suppress the depositions by reason of the interrogatories being leading or otherwise objectionable, or by reason of some irregularity in the mode of taking or returning the depositions. Sometimes it is discovered that through an accidental slip, either of the solicitor or counsel, or of the Commissioner, some material piece of evidence has been omitted, and it is necessary to make special application to the Court to supply the omission by a further examination conducted in the same way."

The defects of this mode of trial seem sufficiently obvious; yet it was not until 1852 that trial of equity cases in open court was adopted in England and not until 1912 that it was adopted by the federal courts in this country.

In the United States, the usual mode of trial is now ordinarily the same in equity as at law except for the absence of a jury in equity cases. Witnesses are heard in open court, and the procedure is substantially the same as in the trial of actions at law without a jury.1

13. Decision on a plea. As we have seen, if the defendant filed a plea to the bill which was good as a matter of law, the plaintiff might take issue thereon by filing a replication. The issue of fact thus raised was tried in classical equity in the same way as issues of fact raised by an answer and replication. "If the court decides that the plea is proved, the bill is dismissed with costs; if it decides that it is not proved, a decree is made in the plaintiff's favor, founded on the equity of the bill as admitted by the plea". This was, it will be observed, an exception to the general proposition that a pleading in equity did not admit what it failed to deny, and probably resulted from the circumstance that the plea in equity was a borrowing from the common law practice.

14. Decrees. An action at law ordinarily terminates in a judgment. A suit in equity terminates in a decree. If the defendant wins, the decree will dismiss the bill and usually order that the plaintiff pay costs. If the plaintiff wins, the decrees may take various forms depending on the character and object of the suit. If what the plaintiff seeks is the payment of money, as where the vendor under a contract for the sale of land sues in equity for the purchase price, there will be a money decree, which in most respects, as we shall see, is now equivalent to a money judgment at law. In many cases, however, the plaintiff seeks to compel the defendant to do something, as for example to convey land, to deliver up a deed for cancellation, or the like. In such cases the suit will terminate in an act decree. In other

1 For certain qualifications of this general statement, see pp. 692–693, infra. 2 Langdell, Summary of Equity Pleading (2d ed. 1883) 111.

cases, the plaintiff will seek to have the defendant restrained from doing something, in which case the suit will terminate with a negative decree, or in technical language an injunction. In some cases, particularly where the plaintiff seeks specific reparation for a tort, a decree which requires the defendant to make such reparation - an act decree is referred to in the books as a mandatory injunction: In any case, whether the decree be for money or for the doing of an act or an injunction, if it terminates the suit in equity, it is a final decree.

As we have seen, a judgment in an ordinary action at law, aside from local peculiarities of practice, may not be conditional.1 It either adjudges that the plaintiff recover so much money of the defendant, or that the plaintiff recover nothing of the defendant and the defendant recover his costs. A decree in equity, on the other hand, may be made upon such conditions as the equity judge deems appropriate. To illustrate, in a suit by the purchaser for the specific performance of a contract to sell land, a decree that the vendor convey to the purchaser may and will be conditioned upon the purchaser's payment of the price to the vendor. Moreover, the decree is framed in the light of conditions as they exist at the time when it is rendered. If, for example, the plaintiff brings an action at law in general assumpsit to recover the consideration under a contract upon which the plaintiff has defaulted, he must, before bringing that action, have tendered back to the defendant anything which he may have received under the contract. In equity this is not necessary. In a suit to rescind for breach of contract he may tender restitution in this bill or at the trial, or the decree may be conditioned on his making restitution. The common law judgment adjudicates the rights of the parties as of the date of the writ; the decree in equity as of the date of the decree.

15. Enforcement of decrees. The primary method of enforcing a decree in classical equity was by contempt proceedings. The defendant who failed to comply with the order of the Court of Chancery would, upon motion of the plaintiff, be attached for contempt, and unless he purged himself of his contempt by complying with the decree, would be imprisoned until he did comply. Later the Court of Chancery developed other methods of enforcing decrees sequestration and writs of assistance-which together with contempt will be considered more fully later. Many decrees are today ordinarily enforceable in the same way as judgments at law; and sometimes, by reason of constitutional or statutory provisions against imprisonment for debt, are enforceable only by execution. This also will be considered more fully later, as will the enforcement of certain act decrees in rem.2

1 See pp. 388–390, supra.

2 See Ch. XIV, infra.

16. Appellate review. While there was some doubt for a time whether decrees of the Lord Chancellor were reviewable by the House of Lords, it was established ultimately that such power to review existed; 1 and there never was any doubt that a decree of the Master of the Rolls or a Vice-Chancellor was reviewable by the Lord Chancellor, and later by the Court of Appeal in Chancery. An appeal in equity was a very different thing from a writ of error at law. It was not so much a proceeding by way of review as a proceeding by way of rehearing. As we have seen, the testimony in the trial of an equity suit in England was taken by depositions. The judge deciding the case simply listened to the reading of the affidavits which had been taken by commissioners and decided questions of fact on that basis. He did not have the opportunity that a common law judge had to observe the demeanor of witnesses on the stand and to form an independent judgment as to their credibility. The reviewing judge or tribunal had just as good a basis for deciding questions of fact as did the judge of first instance, and in consequence the rule developed that an appeal in equity brought the case up de novo, so that the appellate judge or tribunal was authorized to review not only for errors of law but also for errors of fact.

With the change from trial by depositions to trial by witnesses in open court which we have already considered, much of the reason for the old rule has disappeared, and there is now a tendency to treat the findings of an equity judge of first instance with much the same respect as is accorded to the verdict of the jury. Nevertheless, the formal rule still is that an appeal in equity opens up not only the question whether the decision below was right as a matter of law but also the question whether it was right on the facts- not whether the judge of first instance could reasonably have found as he did, but whether in the opinion of the appellate court he was right in so finding.2

There is, however, a proceeding in equity which is not unlike the writ of error at law. This is the proceeding by bill of review. A bill of review may be brought for error of law apparent on the face of the decree or by reason of the discovery of new matter after the decree was rendered. The precise scope and effect of a bill of review as distinguished from an appeal will be considered more fully later.

17. Delay in Chancery proceedings. When the Court of Chancery in England first began to develop its jurisdiction, it was an extremely expeditious court. Partly y reason of this fact and partly because it was dealing with matters where no relief could be had in the courts of common law, it soon became a very busy court. This alone would have tended to slow up proceedings; but there were other

1 See 9 Holdsworth, History of English Law (3d ed. 1944) 368–369. 2 For some qualifications of this general proposition, see Ch. XIII, §7, infra.

causes at work which produced a thoroughly deplorable situation in the English Court of Chancery by the beginning of the last century. For one thing, the method of trial by depositions was very slow and very costly. For another thing, the insistence of the Chancellors that all persons who might have an interest in the subject matter of the suit should be joined as parties meant that bills were long and complicated, and that numerous answers were necessary. In addition to this, the requirement that whenever a party died or changed his status the proceedings should be continued with appropriate change of parties by a bill of revivor or bill of revivor and supplement, introduced additional complications. The delays resulting from these circumstances were not helped by the fact that several of the Chancellors, notably Lord Eldon, developed a positive genius for procrastination in the decision of causes. The net result of the whole matter was that a suit in Chancery became an almost interminable and terribly costly business. The institution as it existed in the early part of the last century has been well described by Dickens in Bleak House:

2

"London. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln's Inn Hall. . . .

The raw afternoon is rawest, and the dense fog is densest and the muddy streets are muddiest, near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation - Temple Bar. And hard by Temple Bar, in Lincoln's Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.

Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.

On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here as here he is with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon, some score of members of the High Court of Chancery bar ought to be as here they are mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words, and making a pretence of equity with serious faces, as players might. On such an 1 On bills of revivor and the related procedure by bill of revivor and supplement, see Story, Equity Pleadings (10th ed. 1892) §§ 354-387.

2 Bleak House was first published in 1852-53, but it describes the Court of Chancery as of about 1827. See Holdsworth, Charles Dickens as a Legal Historian (1928) 79-115.

afternoon, the various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be as are they not?-ranged in a line, in a long matted well (but you might look in vain for Truth at the bottom of it), between the registrar's red table and the silk gowns, with bills, crossbills, answers, rejoinders,' injunctions, affidavits, issues, references to masters, masters' reports, mountains of costly nonsense, piled before them. Well may the court be dim, with wasting candles here and there; well may, the fog hang heavy in it, as if it would never get out; well may the stained glass windows lose their colour, and admit no light of day into the place; well may the uninitiated from the streets, who peek in through the glass panes in the door, be deterred from entrance by its owlish aspect, and by the drawl languidly echoing to the roof from the padded dais where the Lord High Chancellor looks into the lantern that has no light in it, and where the attendant wigs are all stuck in a fog-bank! This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man amongst its practitioners who would not give who does not often give — the warning, Suffer any wrong that can be done you, rather than come here!

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rockinghorse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a

1 But cf. p. 628, supra.