EQUITY. 



o { account, accident, dower, fraud, mistake, partnership, and 



partition. In many cases which fall under these heads, and especially 

 in some cases of fraud, mistake, and accident, courts of law cannot 

 and do not afford any redress : in others they do, but not in so com- 

 plete a manner as a court of equity. 



A court of equity is also assistant to the jurisdiction of the courts 

 of law in cases where the latter have no like authority. It will remove 

 legal impediments to the fair decision of a question depending at law, 

 as by restraining a party from improperly setting up, at a trial, some 

 title or claim which would prevent the fair decision of the question in 

 dispute; by compelling him to discover, upon his own oath, facts 

 which are material to the right of the other party, but which a court 

 of law cannot compel him to disclose ; by perpetuating, that is, by 

 taking and keeping in its custody, the testimony of witnesses, which is 

 in danger of being lost before the matter can be tried ; and by pro- 

 viding for the safety of property in dispute pending litigation. It will 

 also counteract aud control fraudulent judgments, by restraining the 

 parties from insisting upon them. 



The exclusive jurisdiction of a court of equity is chiefly exercised 

 in cases of merely equitable rights, that is, such rights as are not 

 recognised in courts of law. Most cases of trust and confidence fall 

 under this head. This exclusive jurisdiction is exercised in granting 

 injunctions to prevent waste or irreparable injury ; to secure a settled 

 right, or to prevent vexatious litigation; in appointing receivers of 

 property which is in danger of being misapplied ; in compelling the 

 surrender of securities improperly obtained; in preventing a party 

 from leaving the country in order to avoid a suit ; in restraining any 

 undue exercise of a legal right ; in enforcing specific performance of 

 contracts ; in supplying the defective execution of instruments, and 

 reforming, that is, correcting and altering them according to the real 

 intention of the parties, when such intention can be satisfactorily 

 proved ; and in granting relief in cases where deeds and securities 

 Live been lost. 



Much discussion has taken place and various opinions have been 

 expressed upon the question whether it would or would not be best 

 to administer the whole of remedial justice in one court or in one 

 class of courts without any separation or distinction of suits, or of 

 the forms or modes of procedure and relief. Lord Bacon, upon more 

 than one occasion, has expressed his decided opinion that a separation 

 of the administration of equity from that of the common law is wise 

 and convenient " All nations," gays he, " have equity, but some have 

 law and equity mixed in the same court, which is worse, and some 

 have it distinguished in several courts, which is better ; " and again, 

 " In some states, that jurisdiction which decrees according to equity 

 aud moral right, and that which decrees according to strict right, is 

 committed to the same court; in others, they are committed to 

 different courts. We entirely opine for the separation of the courts ; 

 for the distinction of the cases will not long be attended to if the 

 jurisdictions meet in the same person ; and the will of the judges will 

 then master the law." 



Lord Hanlwicke held the same opinion. Lord Mansfield, it is to 

 be presumed, thought otherwise, for he endeavoured to introduce 

 equitable doctrine* into the courts of law. The old strictness has 

 however been restored. His successor, Lord Kenyon, made use of 

 these expressions : " If it had fallen to my lot to form a system of 

 jurisprudence, whether or not I should have thought it advisable to 

 establish different courts, with different jurisdictions, and governed by 

 different rules, it is not necessary to say ; but influenced as I am by 

 certain prejudices that have become inveterate with those who comply 

 with the systems they find established, I find that in these courts, 

 proceeding' by diHerent rules, a certain combined system of juris- 

 prudence has been framed most beneficial to the people of this 

 country, and which I hope I may be indulged in supposing has never 

 yet been equalled in any other country on earth. Our courts of law 

 only consider legal righto ; our courts of equity have other rules, by 

 which they sometimes supersede strict legal rules, and in doing so they 

 act most beneficially for the object" In this country the principle 

 of heparating jurisdictions has been largely acted upon. We have our 

 courts of tquity and law; our bankrupt and insolvent courts, and 

 courts of ecclesiastical and admiralty jurisdiction ; indeed, until recent 

 times, our several courts of law had, in principle, jurisdiction only 

 over certain specified claases of suite. In countries governed by the 

 civil law, the practice has in general been the other way. But 

 whether the one opinion or the other be the more correct in theory, the 

 system adopted by every nation has been mainly influenced by the 

 peculiarities of its own institutions, habits, and circumstances, and the 

 forms of its remedial justice. In all suck- cases the separation or 

 union of the equitable and legal jurisdiction must be a mixed question 

 of public policy and private convenience. 



In some of the American States, the administration of law and 

 equity is perfectly distinct ; in others the administration of equity is 

 only partially committed to distinct courts ; in a third class the two 

 jurisdictions are verted in one and the same tribunal ; and in a fourth 

 there are no courts exercising an equitable jurisdiction. 



In most of our colonies the governor is invested with the jurisdic- 

 tion of chancellor ; but in some of the greatest importance where a 

 judicial establishment of some magnitude is maintained, the chief or 

 supreme court i invested with the chancery jurisdiction. 



EQUITY. 



942 



This attempt at the exposition of the general principles of what in 

 this country is called equity seems to the writer of this article to be 

 better suited to a work of this nature than a full description of the 

 practice of, that is, the course of proceeding in, a suit in a court of 

 equity. The practice or procedure of any court can hardly be made 

 intelligible to any person but one who knows something of it by 

 experience ; and any technical description of it is useless unless it is 

 minutely and circumstantially exact. It is desirable, however, that 

 in addition to some knowledge of the subjects which belong to the 

 jurisdiction of a court of eqmty, all persons fchould have some clear 

 notion of the way in which the matters in dispute between parties to 

 a suit in equity are brought before the court, and by what kind of 

 proof or evidence they are established. It may also be useful that 

 persons should have a general, and so far as it goes, a correct know- 

 ledge of the different modes in which such questions of fact are put 

 in issue, and proved in our courts of law and equity. The following 

 short outline of the course of proceeding in a suit of chancery, taken 

 in connection with other articles in this work, such as CHANCELLOR, 

 CHAXCERT, DEPOSITION, and PLEADING, may probably, so far as itgoen, 

 give somewhat more information on the subject of equity jurisdiction 

 than is found in books not strictly professional. 



A suit in the courts of chancery is commenced by presenting a 

 petition to the lord chancellor, containing a statement of the plaintiS V 

 case, and praying for such relief as he may consider himself entitled to 

 receive. This petition is technically called a Bill, and is in the nature 

 of the declaration at common law [DECLARATION] ; but if the suit is 

 instituted on behalf of the crown, or a charity, or any of the objects 

 under the peculiar protection of the crown, the petition is in the form 

 of a narrative of the facts by the attorney-general, and is called an 

 Information. There is also a petition termed an Information and Bill, 

 which is where the attorney-general, at the relation (that is, the 

 information) of a third person (thence colled the relator) informs the 

 court of the facts which he thinks are a fit subject of inquiry. The 

 practice which governs all these proceedings is the same. It used to 

 be the practice at the end of the statement in a bill to add what was 

 called the interrogating part, consisting of the statements of the bill 

 thrown into the form of distinct questions, and often expressed in 

 terms of great length and particularity. But by a recent enactment, 

 a bill no longer contains interrogations, which may, however, if thought 

 requisite, be filed separately. The statements in the bill are not made 

 upon oath ; and further, in order to obtain a full and complete dis- 

 covery from the defendant, both as regards the complaint and the 

 supposed defence, various allegations are made in many cases from 

 mere conjecture, and this practice, it has been considered after much 

 laboured discussion, tends to the due administration of justice ; for 

 though doubtless many frivolous sxiits are instituted, yet, from the 

 nature of cases of fraud and concealment, the plaintiff is often ignorant 

 of the precise nature of the case, and frames his bill in various forms 

 so as to elicit from the defendant a full discovery of the truth. Bills 

 of this nature are called original bills, and either may be for discovery 

 and relief, or for discovery merely. 



When the bill is placed on the records of the court it is said to be 

 fled, and the writ of subpoena issues commanding the defendant to 

 appear and answer the allegations of the bill within a certain time. 



If, upon the face of the bill, it should appear that the plaintiff is not 

 entitled to the relief prayed for as against the defendant, the defendant 

 may demur,- -that is, demand the judgment of the court upon the 

 statement made by the plaintiff, whether the suit shall proceed 

 [DEMURRER] ; and if any cause, not apparent upon the bill, should 

 exist why the suit should be either dismissed, delayed, or barred, the 

 defendant may put in a plea, stating such matter, and demanding the 

 judgment of the court, a in the case of a demurrer. But if neither of 

 these modes of defence are applicable, aud the defendant cannot dis- 

 claim [DISCLAIMER], he must answer upon oath the interrogatories in 

 the bill according to the best of his knmolei/yc, remembrance, information, 

 and belief. This mode of defence is styled an Answer. All or any of 

 these several modes of defence may be used together, if applied to 

 separate and distinct parts of the case made by the plaintiff. 



In the successive stages of a suit, references as to the pleadings, aud 

 as to facts, may be made to the judges in equity sitting at chambers, 

 who conduct the routine part of the business through their chief clerks. 

 These references were formerly made to the Masters of the court. If 

 the defendant does not answer the bill with sufficient precision, the 

 plaintiff may except to the answer for insufficiency. If the answer is 

 decided to be insufficient, the defendant must answer further. 



It frequently happens that, during the progress of the suit, from thr 

 discovery of new matter, the deaths and marriages of parties, and 

 other causes, the pleadings become defective, and in these cases it is 

 necessary to bring the new matter, or parties becoming interested, 

 before the court. This is clone by means of further statements, which 

 are now introduced by way of amendments to the bill, or by obtaining 

 leave of the court to revive a suit which has abated proceedings, which 

 recent legislation has rendered very simple and rapid. Formerly the 

 same thing was done by fresh bills, called supplemental bills, bills of 

 revivor, or bills of revivor and supplement, according to the nature of 

 the defect which they were intended to supply. 



Pleas and demurrers are at once argued before the court : if allowed, 

 the suit, or so much of it as is covered by the demurrer or plea, is at 



