Mode of commencing a chancery suit.

Again, those cases in which ordinary courts could not administer a right, were the following: Account; Partition; Assignment of dower; Subtraction of tithes; Ascertainment of boundary; Partnership; Administration of testamentary assets; Contribution and exoneration; Marshalling; Infancy; and Idiocy and Lunacy.

For full information as to this subject, the student is referred to those works devoted to an exposition of the principles of equity jurisprudence. But enough has been stated to show that a large number of cases were regarded as within the peculiar jurisdiction of a court of equity. All such cases are now within the jurisdiction of the supreme court, which acts in the capacity of a court of equity, in all equitable matters, while the same court, held by this same judge, also acts as a court of law in all legal actions.

ARTICLE III.

MODE OF COMMMENCING A CHANCERY SUIT.

Section 1. In general. A suit in equity, when commenced by what was called an original bill, was either for relief, that is, praying the decree of the court upon some right or claim, insisted upon by the plaintiff, in opposition to those set up by the defendant; or for discovery, or to obtain and perpetuate the testimony of witnesses.

In either of those cases, under the old practice in chancery, the appearance, as it was called, of the defendant was essential to enable the complainant to obtain either relief or discovery; for, previous to the establishment of rules by the chancellor, under the authority of the Revised Statutes, no bill could be taken as confessed, until the appearance of the defendant had been entered. In case of a bill of discovery, an answer was, of course, essential to the remedy sought, and such answer could not be put in until after appearance; and, therefore, the first step on the part of the complainant in an equity suit was to compel an appearance by the defendant.

Section 2. Equity suit how commenced. An equity suit was commenced by filing in the proper office a bill of complaint, which contained a statement of the facts, out of which the complainant's claim had arisen, and praying the relief sought in the

Parties and pleadings in a suit in equity.

action; and also process of subpana to compel the defendant to appear and answer the bill. Upon filing the bill, a writ of subpæna issued, commanding the defendant to appear in court on a certain day, before the chancellor, or the cellor, to answer the bill of complaint.

proper vice-chan

Upon the service of the subpana on the defendant, he was bound to enter his appearance within twenty days after the appearance day mentioned in the writ. If he neglected or refused so to do, the complainant obtained an order of course that an attachment issue. There was ample provision for compelling an appearance either by natural persons or by corporations.

Such extreme proceedings were, however, seldom needed, as a resident defendant usually answered in due time and manner; and in the case of a non-resident, absent or concealed defendant, when no personal service could be made, the law authorized a publication to be made against him, and directed his appearance to be entered. If he then failed to answer, the bill was ordered to be taken as confessed.

ARTICLE IV.

PARTIES TO A SUIT IN EQUITY.

Section 1. In general. As the present practice is generally the same as the former chancery practice, in relation to the parties to the action, no explanations are required.

ARTICLE V.

PLEADINGS IN A SUIT IN EQUITY.

Section 1. In general. The defendant having appeared, if he determined to contest the plaintiff's claim, proceeded to obtain a copy of the bill and to make preparation for putting in his defense, which was either by demurrer, plea or answer.

A demurrer might be interposed when it appeared on the face of the bill, that there was no equity in the case on the part of the complainant.

A plea was proper when it was desired to set up some matter of defense, which did not appear in the bill, but which was suffi

Trial of suits in equity.

cient to show that the suit should be dismissed, delayed or barred.

An answer was the most usual mode of defense; and this pleading either confessed and avoided, or it traversed and denied, the several allegations in the bill; or it might admit the case made by the bill and submit the questions arising thereon to the court; or it might ask the judgment of the court upon a new case made by the answer, or it might submit both to the court. All these defenses might be joined; that is, the defendant might at the same time demur, plead and answer to separate parts of the same bill.

The defendant might, if he chose, put in a disclaimer and thus terminate the suit at once, by disclaiming all rights and interest in the matter sought in the bill.

This distinguishing feature of a bill in equity was, that it was not only used as a pleading, or mere statement of the facts constituting the cause of action, but it was also an examination of the defendant. Besides this, the complainant was permitted to set forth collateral circumstances in addition to the facts upon which his claim for relief was based, and by means of special interrogatories in his bill, he might require the defendant to answer under oath as to these interrogatories. The advantage of this proceeding was very great at a time when the parties to an ordinary legal action could not be compelled to testify, and, therefore, bills in equity were frequently filed in aid or defense of actions at law.

ARTICLE VI.

TRIAL OF SUITS IN EQUITY.

Section 1. In general. In reference to the trial of suits in equity, nothing more will be done than to point out some of the principal differences between this mode of trial and that of a trial at law.

Section 2. No jury. The first, and one of the principal distinctions between trials at law and those in equity is, that, as a general rule, no jury is used for the trial of issues of fact raised by the pleadings.

The chancellor might, however, direct the trial of issues by a jury, by an order sending the issues to a court of law for trial,

Decrees in equity suits.

in the ordinary way of trying causes by a jury. Feigned issues might be ordered and disposed of in the same manner.

But the general practice was for the court to decide all matters of fact upon the evidence introduced in the cause.

Section 3. The evidence. Another peculiarity of an equity trial was, that the evidence was taken in writing before the hearing, and afterward submitted in that form to the court, instead of taking the oral statements of the witness, in the usual mode of examining them in a court of law.

As will be seen elsewhere, this rule has been abrogated, and the evidence in equity suits is now taken in the same manner as in actions at law.

ARTICLE VII.

DECREES IN EQUITY SUITS.

Section 1. In general. A decree is a sentence or order of the court, corresponding to the judgment of a court of law, pronounced after the hearing or submission of the cause; by which the rights of the parties to the suit are determined and settled ac cording to equity and good conscience.

Decrees are of two kinds — interlocutory and final.

Section 2. Interlocutory decrees. An interlocutory decree is properly a decree pronounced for the purpose of ascertaining some matter of law or of fact preparatory to a final decree. If some material fact or circumstance, necessary to be made known to the court, is not stated in the pleadings, or is so imperfectly ascertained by them that the court is unable to render a final determination between the parties, and a reference to a master, or an inquiry before him, or a trial of the facts before a jury upon a feigned issue, becomes necessary, the decree entered for that purpose is an interlocutory decree; and the court, in the mean time, suspends its final decree, until, by the master's report, or the verdict of the jury, it is enabled to decide finally. Among the numerous instances in which a reference to a master is made, for the purpose of obtaining information, may be mentioned the taking of accounts, the sale of estates, the distribution of funds, the ascertainment of debts, or the computation of sums due. This subject is fully explained elsewhere, as a part of the present system of practice.

Final decrees-Further orders - Rectifying decrees.

Section 3. Final decrees. A decree is final when all the facts and circumstances material and necessary to a complete explanation of the matters in litigation are brought before the court, and so fully and clearly ascertained, on both sides, that the court is enabled, upon a full consideration of the case made out and relied upon by each party, finally to determine between them, according to equity and good conscience. In other words, when a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree.

A decree may be final notwithstanding there may be some acts to be done subsequent to the decision, if the consequential directions are contained in the decree. So that no further directions are needed for the purpose of giving the parties the full benefit of the previous decision.

Section 4. Further orders. In some instances decrees, although final in their nature, may require the confirmation of a further order of the court before they can be acted upon.

In some cases it may happen that a final decision upon all the points of the case cannot be made until a future period, as in the case of the distribution of a fund among a particular class of individuals, after the death of a person named, but who is still living. In such instances, the decree is final in some respects, but liberty is reserved for the applications of those interested in such fund, whenever it becomes distributable.

Section 5. Rectifying decrees. Formerly, so long as the decree remained in the form of minutes, or until it had been settled and entered by the register, it might have been rectified upon application to the court by petition or on motion. And even important matters might be brought before the court upon an application to vary the minutes. These applications must have been made to the court or officer by which the decree was pronounced, and the chancellor had no power to alter a decree made by a vice-chancellor, except upon an appeal. After a decree had been settled and entered, the court would not entertain an application to vary it, unless upon consent of all parties, or except as to matters which were quite of course, as where the decree was obviously wrong, or there was a clear mistake by the court or the counsel in drawing it up. The proper mode of having a