CHAPTER XII

AN OUTLINE OF THE PROCEEDINGS IN A SUIT IN EQUITY1

THE mode of procedure in the Court of Chancery was quite different from that in the superior courts of common law. This resulted partly from the circumstance that the early ecclesiastical chancellors naturally enough took for their model the procedure in the ecclesiastical courts with which they were familiar, but partly also from the fact that the common law procedure was poorly adapted to the elucidation and adjudication of complicated controversies. Moreover, the Chancellor was under no necessity of requiring the pleadings in cases before him to simplify and narrow the points at issue for the determination of a jury, and at the same time was conscious of the practical desirability of getting full disclosure of the facts from the parties. Nevertheless, the influence of the common law system of pleading was by no means negligible, as might have been expected in view of the fact that for a long time there was no separate Chancery bar and that the lawyers practising before the Chancellor were members of one or the other of the Inns of Court and so trained in the common law tradition.2 As we shall see, the demurrer and plea in equity were adapted from the common law practice, although the bill, the answer, and the mode of trial were primarily derived from the practice of the ecclesiastical courts.3

We shall here describe the course of proceedings in a suit in equity in the classical period of English chancery practice and indicate briefly some of the changes which were later made in England and in the United States. As was pointed out in connection with the similar outline of the course of proceedings in an action at law, not all the steps which will be described were likely to be taken in every case; but some of them had to be, and most of them might be. Later in this part of the book we shall consider in greater detail certain of those steps which are of most importance today.5°

1 For a full account of the English equity practice prior to the Judicature Acts, see 9 Holdsworth, History of English Law (3d ed. 1944) 335-408.

2 The doctors of the civil law of Doctor's Commons who practiced in the ecclesiastical courts and the Court of Admiralty seem never to have been permitted to practice in the Court of Chancery, in spite of the fact that their legal training was much more like that of the earlier Chancellors than was that of the lawyers of the Inns of Court.

3 See Langdell, Summary of Equity Pleading (2d ed. 1883) §§ 1-53. This may be taken as being the time when Lord Eldon held the great seal (1801-1806, 1807-1827).

5 See Ch. XIII, infra.

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1. The bill. The first step in a suit in the Court of Chancery was the filing of a bill. This was originally a begging petition to the Chancellor and was very likely to set forth special personal reasons why the petitioner, usually described as "your orator", should be given relief, as that he was poor, or ill, or an old soldier of the King's armies, or a faithful servant of the King, or the like. But from the beginning it stated the plaintiff's 2 complaint and prayed for relief. Unlike the declaration in an action at law, which was required to be in Latin, a bill in equity might be and almost always was in English.3 As the procedure before the Chancellor became more settled, the bill assumed a more formal character. By Lord Eldon's time, a complete bill might contain nine "formal parts": (1) the address, or direction of the bill to the Chancellor by name (e.g., "To the Right Honorable John Lord Eldon, Baron Eldon, of Eldon, in the County of Durham, Lord High Chancellor of Great Britain"); (2) the introductory part, which named the plaintiffs and stated their addresses and the capacity in which each sued; (3) the stating part, often called the "premises"; which will be more fully considered hereafter; (4) the confederacy clause, which alleged that the defendants had combined with other persons unknown to injure the plaintiff, and prayed that these others might be made defendants to the bill when discovered this was a survival from the time when, as we have seen, one important ground of equity jurisdiction was the obstruction of the remedy at law by the confederating of rich and powerful men to defeat justice; (5) the charging part, of which more hereafter; (6) the jurisdiction clause, which stated that the plaintiff had no remedy, or no adequate remedy, at law; (7) the interrogating part, which was a prayer that the defendant might be required to answer on oath the allegations of the bill and any specific questions stated; (8) the prayer for relief, which specified the relief, interlocutory and final, which the plaintiff sought, to be more fully discussed below; and (9) the prayer for process, asking that a

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1 In the early days, as we have seen, this petition might be addressed to the King or to the King's Council.

2 The petitioner in an equity suit was usually described in the classical period of equity as the "orator", but the term plaintiff will be used herein as being the term now ordinarily used.

3 Hence the term "English bill", which occurs occasionally in the older reports. This term was used, for example, to distinguish a bill in equity in the Court of Chancery from a petition to that court on its common law side. Cf. pp. 594–595, supra. Similarly, a bill in equity in the Court of Exchequer, which as we have seen exercised some jurisdiction in equity, was ordinarily called an "English bill in the Exchequer".

It is not to be understood that every bill in equity contained all of these formal parts. See Keigwin, Cases on Equity Pleading (2d ed. 1933) 138-139.

5 The only substantial ground for this survival seems to have been an early idea, long since discredited, that new parties could not be added later unless such a foundation was laid for doing so.

6 This prayer was called the general interrogatory.

7 These were called special interrogatories.

writ or writs of subpoena issue to the defendant or defendants. A form of bill in equity of the classical period is given later in this chapter, and should be studied in this connection.1

The stating part of the bill was in substance a declaration. It stated the plaintiff's case, and was required to contain allegations of fact constituting a cause of action. It was the heart of the bill, and, except for the formal beginning and the prayers, the only absolutely essential part. If matters had stopped here, the first pleading in equity would have been less stereotyped to be sure, but substantially analogous to the declaration in an action at law.

But matters did not usually stop here. The plaintiff ordinarily wanted to find out what the defendant knew or would say about various matters of evidence, and in order to "search his conscience" as the old books said, the plaintiff would frequently desire to set out those matters of evidence in his bill to get discovery with regard to them. Since, as we shall see, the defendant ordinarily had to answer the bill line by line, pleading matters of evidence was an effective way of probing the defendant's conscience. Such matters were therefore pleaded in the charging part of the bill. But this part had another and often equally important function. In classical equity, as we shall see, the plaintiff could reply to affirmative defenses set up in the defendant's answer only by amending his bill. If he knew or suspected that certain defenses would be set up, it was therefore to his advantage to include anticipatory replies thereto in his bill. By so doing, he could get discovery as to matters relating not only to the anticipated defenses but as to his own allegations in reply to them. Moreover, if a defense appeared upon the face of the bill, the bill was demurrable, and hence it might be necessary to negative the defense in the bill. For example, if the bill was filed long after the cause of action arose, it might be dismissed for laches on the face of the bill unless the reasons for the delay were explained therein. The charging part of the bill thus might serve either or both of the two purposes of aiding discovery and anticipating defenses.

The prayer for relief stated the final relief which the plaintiff sought. At law, the relief available was pretty well stereotyped by the form of action chosen, but in equity the same facts might well allow various sorts of relief at the option of the plaintiff, and he had to specify which he wanted. For example: "If . . . a bill brought by a wife against her husband alleges adultery, cruel treatment, desertion and failure to support, but makes no prayer, the question arises, what does the lady want, absolute divorce, limited divorce or 1 See pp. 639-642, infra.

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2 This desire was emphasized in most cases by reason of the old rules as to competency of witnesses and as to mode of trial in equity, which, as we shall see, was by depositions. See pp. 632-633, 692–693, infra. It was sometimes necessary as a practical matter for the plaintiff to prove his case entirely by securing discovery from the defendant in the answer. See 9 Holdsworth, History of English Law (3d ed. 1944) 357-358.

a decree of maintenance ?" 1 The prayer would also state any interlocutory relief desired by the plaintiff, such as a temporary injunction or the like, and no such relief would be granted without a specific prayer therefor; but in all cases it was usual to include in addition a prayer for general relief. The form of this prayer was "for such other and further relief as to your Honor may seem meet and as shall be agreeable to equity and good conscience," or similar language, and under it relief not specifically prayed for might be granted at least where not inconsistent with the special prayers if any or with the frame of the bill.

Under modern equity practice, the form of the bill has been considerably changed. We may take as typical the practice under the Federal Equity Rules of 1912, under which equity cases in the federal courts were conducted from 1913 to 1938.2 Under these rules, the bill became much more directly analogous to a declaration at law than it had been in the classical period. The address and confederacy clause became unnecessary; the jurisdiction clause became merely a statement of the court's jurisdiction as a federal court; most important, the charging part ceased to exist in its old form, and the interrogating part was eliminated from the bill.

These last two changes call for some explanation. It will be remembered that the charging part of the old bill in equity served two purposes, aiding discovery and anticipating defenses, and that the interrogating part also served the first of these purposes. The Federal Equity Rules did away entirely with the first purpose, with the result that matters of evidence were no longer stated in the bill to give a basis for discovery. This eliminated the most prolix feature of the charging part and made it simply a vehicle for anticipatory replies to expected defenses, and of course eliminated the interrogating part also. This did not mean that discovery could no longer be had, but it did mean that it could not be had in the answer. Instead, a system of separate interrogatories was provided for as a collateral procedure.

This description of the bill under the Federal Equity Rules is generally applicable to bills in equity, in those of the states which still retain a separate procedure in equity cases, with the exception that

1 Keigwin, Cases on Equity Pleading (2d ed. 1933) 163, n. 2. It should be noted that while the Court of Chancery had no jurisdiction in matrimonial causes, the situation referred to might well arise in the United States, where . the jurisdiction of the ecclesiastical courts in such cases has in many jurisdictions been given to courts of equity by statute.

2 The first Federal Equity Rules were promulgated in 1822. These were revised and broadened in 1842, and continued in force until 1913, when a new set of rules promulgated by the Supreme Court in 1912 became effective. On the Federal Equity Rules of 1912, see four articles by Lane: "One Year under the Federal Equity Rules," 27 Harv. L. Rev. 629 (1914); “Working under Federal Equity Rules," 29 id. 55 (1915); “Federal Equity Rules," 35 id. 277 (1922); "Twenty Years under the Federal Equity Rules," 46 id. 638 (1933).

the jurisdiction clause is usually unnecessary. The bill is very like a declaration, but less formal, and may properly contain matter by way of anticipatory reply. In the jurisdictions which have adopted code procedure, the complaint replaces bills in equity as well as declarations at law; but in cases which would have been brought in equity prior to the unified procedure it may still be necessary to comply with the substance of the earlier procedure especially with regard to prayers for relief.

2. The subpoena. The student will have observed one respect in which equity procedure differs from common law procedure: At law, the first step is service of process on the defendant; the action begins with the summons. In equity, the first step is filing the bill; the subpoena, which serves much the same purpose as the summons, is issued and served only after the bill is filed. Originally, the subpoena was a command that the defendant appear and answer the bill under a specified money penalty. Since it was issued by the Chancellor under the great seal, it was a royal command which the defendant was bound to obey.

If the defendant did not appear, he was in contempt of the Court of Chancery, and steps might be taken to coerce his appearance. In the classical period, the procedure was this: First the court would issue an attachment to the sheriff, commanding him to arrest the defendant. Then, if the sheriff returned non est inventus (not found), an attachment with proclamations was issued, again to the sheriff, commanding him to make proclamation that unless the defendant surrendered himself, he should be deemed a rebel. If this failed to bring about the arrest or voluntary appearance of the defendant, a commission of rebellion was issued to four or more commissioners for his apprehension; and this failing, the sergeant-at-arms of the Court of Chancery was directed to arrest the defendant. Finally, at the end of this lengthy process, the plaintiff might move for a sequestration of the defendant's real and personal estate to put pressure on him to compel appearance. But unless the defendant was ultimately arrested or appeared, no relief to the plaintiff could be given.1

Under the Federal Equity Rules of 1912 and the analogous state practice, failure to respond to a subpoena in a case where the court has jurisdiction over the person of the defendant by reason of service on him is ground for a motion to take the bill pro confesso against the defendant. An order to that effect has the same effect as a default of appearance at law; it allows the court to grant such relief as would be appropriate if the allegations of the bill had been adImitted by the defendant, but it does not mean that the relief prayed

1 Under the early practice the bill could not be taken pro confesso against the defendant unless he appeared or was in custody. See 1 Harrison, Accomplish'd Practiser in the High Court of Chancery (8th ed. 1791) *275.