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And thus we have reviewed the whole course of the administration of civil justice in an ordinary suit in the courts of common law, displaying the general principles which regulate all common-law proceedings.
But the reader would have an imperfect idea of the administration of civil justice in England, without some notion of another, and the only remaining, branch of that subject. We will therefore take a rapid view of the chief features of the proceedings in courts of equity.
It has been already shewn1 that equity gives relief in many cases wherein the common law gives either no remedy, or one very insufficient; that the incompetency of the common-law courts to decide an issue of fact without a jury, and the incapacity of juries to deal with many important cases, rendered it necessary that such matters should be decided by another jurisdiction; and that the courts of equity proceed on a method, and are furnished with machinery, enabling them to administer complete justice where the courts of law are impotent. These matters we will not repeat here, but at once chalk out the method of proceeding in these courts, which is totally different from that prescribed by the common law, being formed upon the imperial and pontifical formularies by the prelates who in former times presided in the court of chancery.2
The first commencement of an ordinary suit in chancery is by preferring a bill to the lord chancellor, in the form of a petition, setting forth at full length the circumstances of the case, so far as they are material, and concluding with a prayer for the appropriate relief or other thing required of the court, and for the usual process against the parties against whom that relief or other thing is sought, to bring them before the court to make due
1 Chap. II. * Gilbert, Forum Romanum, c. iii.
answer in the premises.1 In some cases, where it is necessary to preserve property in dispute pending a suit, or to prevent evasion of justice, a writ of injunction, derived from the interdictum of the civil law, to restrain the defendant from proceeding at common law against the plantiff, or committing waste, or doing any injurious act; or a writ of ne exeat regno, to restrain the defendant from avoiding the plaintiff's demands by quitting the kingdom; are also prayed for by the bill.2
Upon ordinary bills, as soon as they are filed (and in the case of a peer or peeress after service of a letter from the lord chancellor to the defendant), process of subpoena is taken out, which is a writ commanding the defendant to appear and answer to the bill ;3 and if the defendant does not appear in due time, and plead, demur, or answer, to the bill, an attachment,—an attachment with proclamations,—and a commission of rebellion, are successively resorted to; after which a sergeant-at-arms is sent in quest of the defendant; and, lastly, a sequestration issues to seize all his personal estate and the profits of his reali subject to the order of the court. After an order for sequestration issued, the plaintiff"s bill is taken pro confesso, and a decree is made accordingly.4
But if the defendant appears, and takes a copy of the bill, he must next demur, plead, or answer.
1. A demurrer in equity is nearly of the same nature as a demurrer at law, and demands the judgment of the court whether the defendant shall be compelled to answer
1 Story, Comment on Equ. Plead, c. ii. p. 5. Maddock's Practice, vol. ii. p. 205.
2 Mitford (Lord Redesdale), Plead, p. 46.
3 Sidney Smith, Chanc. Pract. vol. i. c. viii.
4 Smith, Chanc. Pract. vol. i. c. ix. x. As to taking bills pro emfesso, see stat. 1 Wm. IV. c. xxxvi.; Smith, Chanc. Pract. c. xi.
the bill or not,1 but does not admit the truth of any of the facts stated in the bill.
2. A plea is where the defendant shews some cause why the suit should be dismissed, delayed, or barred ;2 but involves no admission of the truth of any fact alleged by the plaintiff in the bill. And if the plaintiff prevails upon the demurrer or plea (unless it be a plea involving the decision of the cause), the defendant must answer.
3. An answer is the most usual defence that is made to a plaintiff"s bill, and is given on oath, or upon the honour of a peer or peeress. In an answer, two distinct parts must be distinguished, though they are mingled together according as the pleader may find it most convenient; and these are, 1. the examination of the defendant on oath; and 2. his defence against the demands of the plaintiff. As to the first of these, the plaintiff may except to the bill for insufficiency, if any part of the allegations in the bill be not fully answered; in which case the bill and answer are usually referred to a master in chancery, to report as to the validity of the exceptions. But it must here be observed, that as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and answer as to the residue.
When the answer is put in, the plaintiff may amend his bill by adding new parties, or new matter, or both; and to such amended bill the defendant must answer afresh. And this is a very important feature of equitypleading; for the amendment of the bill, and the fresh answer to the bill so amended, stand in lieu of, and serve the same purpose as, the pleadings at common law subsequent to the declaration and plea. Thus, instead of put
ting in a replication, advancing some new fact in avoidance of the defence, the plaintiff in equity brings the new matter before the court by amending his bill, and thus obtains the answer of the defendant to his amended case.
If the plaintiff finds sufficient matter confessed in the defendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only; but in that case he must take the defendant's answer to be true in every point. Otherwise the course is for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant's answer to be directly the contrary, which he is ready to prove as the court shall award; upon which the defendant by his rejoinder joins issue.1
To prove the facts on which the parties are at issue is the next concern; and this is done by examination of witnesses, and taking their depositions in writing, according to the manner of the canon-law. The witnesses are examined on written interrogatories in the examiner's office in chancery, if they live in or near London; and before commissioners named on both sides by the parties, if they reside in the country. These commissioners arc, however, sworn not to divulge the examinations until they are published in the court of chancery, which is done after all the witnesses have been examined,2 and then the cause is ripe for hearing. After the evidence has been read to the court, and counsel heard on both sides, the court pronounces the decree. But this is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause, unless it be for the de
1 Blackst. Com. b. Hi. c. xxvii. p. 491.
2 Maddock, Pract. vol. ii. p. 549.
fendant. Frequently long accounts are to be settled, incumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always, by the decree on the first hearing, referred to a master in chancery to examine, which examinations frequently last for years; and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and overruled, or otherwise is confirmed by the court.
Another thing, in some cases, retards the completion of decrees. Where very conflicting evidence is given in a cause, the court considering the deficiency of trial by written depositions, when compared with a proceeding wherein the witnesses are examined viva voce before those who are to decide the question in dispute, will frequently direct the matter to be tried by a jury; but as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the court of queen's bench, or at the assizes, on a feigned issue prepared for the purpose. So, likewise, if a question of mere common law arises in the course of a suit in equity, it is the practice of this court to refer it to the opinion of the judges of the court of queen's bench or common pleas, on a case stated for that purpose, though the court of «quity is not bound by the opinion of the judges.
When all issues are tried and settled, and all references to the master ended, the cause is for the last time brought to hearing upon the matters of equity reserved, and a final decree is made, the performance of which is enforced, if necessary, by commitment of the person, or sequestration of the party's estate. But the decree may be revised before it is signed by the lord chancellor and enrolled, on a rehearing before the same judge by whom