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tion, which were formerly driven into these courts by narrow decisions in courts of law, viz., the true construction of securities for money lent, and the form and effect of a trust or second use, has been gradually erected that structure of jurisprudence, which prevails in our courts of equity.
(1.) Mode of Proof. When facts rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath as to the truth of the transaction; and that being once discovered, the judgment is the same in equity, as it would have been at law. But for want of this discovery at law, the courts of equity have acquired a concurrent jurisdiction, with every other court, in all matters of account.
Jurisdiction in Equity. As incident to accounts, they take a concurrent cognizance of the administration of personal assets, and consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators, Also of tithes, of partnerships and many other mercantile transactions, and so of bailiffs, receivers, factors and agents. Also over all matters of fraud; all matters in the private knowledge of the party, which though concealed, are binding in conscience; and all judgments at law, obtained through fraud or concealment. And thus, not by impeaching or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a judgment, obtained by suppressing the truth.
(2.) Mode of Trial. This is by interrogatories administered to the witnesses, upon which their depositione are taken in writing, wherever they happen to reside, Where the cause originates abroad, and the witnesses reside upon the spot, or if it arose in England, and the witnesses are abroad, or shortly about to depart, or if witnesses here are aged or infirm ; these are grounds for a court of equity to grant a commission to examine them."
(3.) Mode of Relief. The want of a more specific remedy than can be obtained in a court of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases.
Specific Performance. Thus, in executory agreements, a court of equity will enforce performance, unless it be improper or impossible, instead of giving damage for their non-perform
Hence a fiction is established, that what ought to be done shall be considered as done, and shall relate back to the time it should have been done.
1 Courts of law now have the same power.
Concurrent Cognizance. So of waste and other similar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction. Over questions, that may be tried at law, in a great multiplicity of actions, a court of equity assumes jurisdiction, to prevent the expense of endless litigation. In various kinds of frauds, it assumes a concurrent jurisdiction, not only for the sake of discovery, but of a more extensive and specific relief, as by setting aside fraudulent deeds, decreeing re-conveyances, or directing an absolute conveyance merely to stand as a security. And for the sake of a more complete relief, by decreeing a sale of lands, a court of equity holds plea of all debts, encumbrances and charges that may issue thereout.
(4.) True Construction of Securities for Money Lent. Equity courts have jurisdictiou over this question. When they held the penalty of a bond to be the form, as a pledge to secure repayment of the sum advanced with a compensation for its use, they settled the doctrine of personal pledges or securities, which applies also to mortgages of real estate.
Mortgages. The mortgagor continues owner of the land, the mortgagee of the money lent upon it; but the ownership is mutually transferred, and the mortgagor is barred from redemption, if, when called on by the mortgagee, he does not redeem within a time, limited by the court, or he may, when out of possession, be barred by length of time.
(5.) The Form of a Trust or Second Use. Courts of equity have exclusive jurisdiction, as to the subject matter of all settlements and devises in that form, and of the long terms in complicated conveyancing. Nearly the same rules, as would govern the estate in a court of law, govern the trust if no trustee is interposed, and by a positive system in equity, the doctrine of trusts is now reduced to as great a certainty as that of legal estates in the courts of the common law.
Progress of Equity Practice, Eminent lawyers, some of whom have held the great seal, have, by degrees, erected the system of relief administered by a court of equity into a regular science, attained by study and experience, and from which, when understood, it may be known what remedy a suitor is entitled to expect and by what mode of suit, as readily and with as much precision in a court of equity as one of law.
Should Work in Harmony. For the sake of certainty, peace and justice, each court should as far as possible follow the other, in the best and most effectual rules for attaining desirable ends. It is a maxim, that equity follows the law, and in former days, the law had not scrupled to follow equity. Many valuable improvements in the ancient state of our tenures, and the forms of administering justice, have arisen from the reason, that the same thing was effected by means of a subpoena in chancery.
Bill in Equity. The Form. A suit in chancery is commenced, by preferring a bill to the chancellor, in the style of a petition. This is in the nature of a declaration at common law, or a libel in the spiritual courts, setting forth the circumstances of the case at length, as some fraud, trust or hardship, for which "your orator is wholly without remedy at the common law.” Relief is therefore prayed, and also process of subpæna against the defendant, to compel him to answer upon oath to all the matter charged in the bill. If it be to quiet possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed, as in the civil law an interdictum, commanding the defendant to cease.
Parties, Defendants. This bill must call all necessary parties, however remotely concerned in interest, before the court, otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its propriety.
Impertinent Matter. It must not contain scandalous or impertinent matter, otherwise the defendant may refuse to answer it until such matter is expunged, which is done by referring it to a master in chancery. He examines the propriety of the bill, and orders such matter struck out, if he finds it exists; and the defendant shall have his costs, which ought of right to be paid by the counsel who drafted the bill.
Injunction. When the bill is filed, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case. If the bill be to stay execution upon an oppressive judgment, and the defendant fail to answer within the allotted time, an injunction will issue as of course, and when the answer is filed, the injunction can only be continued upon a sufficient ground, appearing from the answer itself. But if an injunction be wanted to save waste, or similar urgent injury, then upon the filing of the bill, and a proper case supported by affidavit, the court will at once grant an injunction, to continue until the defendant shall have answered, and till the court make some further order. When the answer comes in, the court upon argument decides, whether the injunction shall then. be dissolved, or continued until the hearing of the cause. This decision is based both upon an examination of the answer, and also of the affidavits.
Subpoena. But upon common bills, as soon as they are filed, a process of subpoena is taken out, which is a writ, commanding the defendant to appear and answer the bill on a penalty of 1001. If the defendant, thus served, does not appear within the time limited by the rules of court, and plead, answer or demur to the bill, he is then said to be in contempt.
Attachment. The process of attachment, which is a writ in the nature of a capias, is then awarded against him. It is directed to the sheriff, commanding him to attach, or take the defendant, and bring him into court. If the sheriff return non est inventus, then an attachment with proclamation issues, directing public proclamation by the sheriff throughout the county to summon the defendant to appear and answer. If this be also returned non est inventus, a commission of rebellion is awarded against him, and four commissioners ordered to attach him, wherever found in Great Britain, as a rebel. Subsequently if not found, the court sends a serjeant at arms in quest of him, and a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the court's order. The plaintiff's bill in then taken pro confesso, and a decree is made accordingly.
Purged of Contempt. If the defendant be taken on any process, he is to be committed to prison, till he puts in his appearance or answer, or performs whatever else this process is issued to enforce, and clears his contempt by the payment of the plaintiff's costs incurred thereby. A similar process issues in all sorts of contempts, during the progress of the cause.
Corporations and Peers. The process against a corporation is by distringas, to distrain them by their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. If a peer be a defendant, the chancellor sends a letter missive to him to request his appearance, together with a copy of the bill, and if he neglects to appear, he is served with a subpoena. If he still continues in contempt, a sequestration issues against his lands and goods, without any mesne process of attachment, which is directed against the person, and hence not applicable to a lord of parliament.
Absconding Defendant. The above process cannot be sued out until after process of the subpæna, for then the contempt begins, as the respondent has not been presumed previously to have had notice of the bill. If the defendant absconds to avoid service, a day shall be appointed for him to appear to the bill, and notice given him by public advertisement, otherwise the bill will be taken pro confesso.
Act of the Defendant. If the defendant appears, and receives a copy of the bill, he is next to demur, plead or answer.
Demurrer. A demurrer in equity is nearly of the same nature as a demurrer in law, being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff's bill; as for want of sufficient equity therein contained, or where the plaintiff, by his own showing, appears to have no right, or where discovery is sought, which may cause a forfeiture or may convict a man of a crime. For any of these causes, a defendant may demur. If the demurrer is allowed, the plaintiff's bill shall be dismissed ; if it be overruled, the defendant must
Plea. A plea may be either to the jurisdiction, showing that the court has no cognizance of the cause; or to the person, showing some disability in the plaintiff, as by outlawry, excommunication and the like; or it is in bar, showing some matter, wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release or a former decree. The truth of such plea the defendant is bound to prove, if requested by the plaintiff. But as bills are often of a complicated nature, a man may plead as to part, demur as to part, and answer to the residue. No exceptions to formal minutiæ in the pleadings will be here allowed, for the parties are at liberty to amend, on discovery of any errors in form.
The Answer. An answer is the usual defence made to a plaintiff's bill. It is sworn to, unless the action be an amicable
This method of proceeding is taken from the ecclesiastical courts, like the rest of the practice in chancery; for there, in almost every case, the plaintiff may demand the oath of his adversary. Yet if in the bill, any question is put, that tends to