a writing called a bill, and the written answer of the defendant, which is given in upon oath, and the evidence of witnesses, together, if necessary, with the evidence of all parties, also given in writing and upon oath. These decrees are so adjusted as to meet all the exigencies of the case, and they vary, qualify, restrain, and model the remedy so as to suit it to mutual and adverse claims, and the real and substantial rights of all the parties, so far as such rights are acknowledged by the rules of equity.

case by the plaintiff, which he makes by | diction in cases where the rights are purely of a legal nature, but where other and more efficient aid is required than a court of law can afford. In some of these cases courts of law formerly refused all redress, but now will grant it. For strict law comprehending established rules, and the jurisdiction of equity being called into action when the purposes of justice rendered an exception to those rules necessary, successive exceptions on the same grounds became the foundation of a general principle, and could no longer be considered as a singular interposition. Thus law and equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule; a great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next. (Prof. Millar, View of the Eng. Govt.) But the jurisdiction having been once acquired at a time when there was no such redress at law, it is still retained by the courts of equity.

The courts of equity bring before them all the parties interested in the subject matter of the suit, and adjust the rights of all, however numerous; whereas courts of law are compelled by their constitution to limit their inquiry to the litigating parties, although other persons may be interested; that is, they give a complete remedy in damages or otherwise for the particular wrong in question as between the parties to the action, though such remedy is in many cases an incomplete adjudication upon the general rights of the parties to the action, and fails altogether as to other persons, not parties to the action, who yet may be interested in the result or in the subject matter in dispute.

The description of a court of equity, as given by Mr. Justice Story in the Encyclopædia Americana,' which he has filled up in his recent Treatise on Equity, is this. A court of equity has jurisdiction in cases where a plain, adequate, and complete remedy cannot be had in the common law courts. The remedy must be plain, for if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate, for if at law it fall short of what the party is entitled to, that founds a jurisdiction in equity; and it must be complete, that is, it must attain the full end and justice of the case; it must reach the whole mischief and secure the whole right of the party present and future, otherwise equity will interpose and give relief. The jurisdiction of a court of equity is sometimes concurrent with the jurisdiction of the courts of law; sometimes assistant to it; and sometimes exclusive. It exercises concurrent juris

The most common exercise of the concurrent jurisdiction is in cases of 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 complete 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 courts of law 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 in writing and keeping in its custody, the testimony of witnesses, which is in danger of being lost before the mat

ter can be tried; and by providing for | if the jurisdictions meet in the same perthe safety of property in dispute pending son; and the will of the judge will then litigation. It will also counteract and master the law." control fraudulent judgments, by restraining the parties from insisting upon

them.

Lord Hardwicke held the same opinion. Lord Mansfield, it is to be presumed, thought otherwise, for he endeavoured to The exclusive jurisdiction of a court of introduce equitable doctrines into the equity is chiefly exercised in cases of courts of law. The old strictness has merely equitable rights, that is, such however been restored. His successor, rights as are not recognised in courts of Lord Kenyon, made use of these expreslaw. Most cases of trust and confidence sions: "If it had fallen to my lot to form fall under this head. This exclusive a system of jurisprudence, whether or not jurisdiction is exercised in granting in- I should have thought it advisable to junctions to prevent waste or irreparable establish different courts, with different injury; to secure a settled right, or to jurisdictions, and governed by different prevent vexatious litigation; in appoint- rules, it is not necessary to say; but ining receivers of property which is influenced as I am by certain prejudices 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 have been lost.

Various opinions have been expressed upon the question whether it would or would not be best to administer justice altogether 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," says 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 and 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

that have become inveterate with those who comply with the systems they find established, I find that in these courts, proceeding by different rules, a certain combined system of jurisprudence 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 rights; our courts of equity have other rules, by which they sometimes supersede strict legal rules, and in so doing they act most beneficially for the subject." In this country the principle of separating jurisdictions has been largely acted upon. We have our courts of equity and law; our bankrupt and insolvent courts, and courts of ecclesiastical and admiralty jurisdiction; indeed until lately our several courts of law had, in principle, jurisdiction only over certain specified classes of suits. 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 most 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 original forms of giving redress for wrongs.

In some of the American states, the administration of law and equity is distinct; in others the administration of equity is only partially committed to distinct courts; in a third class the two jurisdictions are vested in one and the

same tribunal; and in a fourth there are any of the objects under the peculiar prono courts that exercise equitable jurisdic-tection of the crown, the petition is in the tion.

In most of our colonies the governor is invested with the jurisdiction of chancellor; but in some of the most important colonies, where a judicial establishment of some magnitude is maintained, the chief or supreme court is invested with the chancery jurisdiction.

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 called the relator), informs the court of the facts which he thinks are a fit subject of inquiry. The practice in all these proceedings is the same. At the end of the statement in a bill, there is added what is called the interrogating part, which consists of the statements of the bill thrown into the form of distinct questions, and often expressed in terms of great length and particularity. The statements in the bill are not made upon oath : and further, in order to obtain a full and complete discovery from the defendant, both as regards the complaint and the supposed defence, various allegations are

This attempt at the exposition of the general principles of what in this country is called Equity, seems 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 except 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 sub-made in many cases from mere conjecjects which belong to the jurisdiction of a court of equity, all persons should 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 knowledge 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, CHANCERY, DEPOSITION, and EVIDENCE, may probably give somewhat more information on the subject of equity jurisdiction that is found in books not strictly professional.

A suit on the Equity side of the courts of chancery is commenced by presenting a written petition to the lord chancellor, containing a statement of the plaintiff's 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; but if the suit is instituted in behalf of the crown, or a charity, or

ture, a practice which tends to the due administration of justice; for though many frivolous suits are instituted, yet, from the nature of cases of fraud and concealment, the plaintiff is often ignorant of the precise nature of his own 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 filed, and the writ of subpoena issues which commands 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; 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 as in the case of a demurrer. But if

neither of these modes of defence are litigation in the original bill, as where a applicable, and the defendant cannot dis-discovery is necessary from the plaintiff in claim all knowledge of the matters con- order that the defendant may obtain comtained in the bill, he must answer upon plete justice. There are also bills of reoath the interrogatories in the bill accord-view, to examine a decree upon the dising to the best of his knowledge, 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.