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answer upon his oath the matters of fact stated in the bill, if they are within his knowledge; and he is compellable to give a full account of all such facts, with all their circumstances, without evasion or equivocation; and the testimony of other witnesses also may be taken to confirm or to refute the facts so alleged.1 Indeed every bill in equity may be said to be in some sense a bill of discovery, since it asks for the personal oath of the defendant, to purge himself in regard to the transactions. stated in the bill. It may readily be perceived how very important this process of discovery may be, when we consider how great the mass of human transactions is, in which there are no other witnesses, or persons having knowledge thereof, except the parties themselves.

32. Mr. Justice Blackstone has in a few words given an outline of some of the more important powers and peculiar duties of Courts of Equity. He says that they are established to detect latent frauds and concealments which the process of Courts of Law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a Court of Law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law.'2 But the general account of Lord Redesdale (which he admits however to be imperfect and in some respects inaccurate) is far more satisfactory as a definite enumeration. "The jurisdiction of a Court of Equity,' says he,3 when it assumes a power of decision, is to be exercised, (1) where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose; (2) where the courts of ordinary jurisdiction are made instruments of injustice; (3) where the principles of law, by which the ordinary courts are guided, give no right, but upon the principles of universal justice the interference of the judicial power is necessary to prevent a wrong and the positive law is silent. And it may

1 3 Black. Comm. 437, 438; 1 Wooddes. Lect. vii.
21 Black. Comm. 92.

8 Mitford, Eq. Pl. by Jeremy, pp. 111, 112.

p. 207.

also be collected that Courts of Equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction, (4) to remove impediments to the fair decision of a question in other courts; (5) to provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law entrusted, or by persons having immediate but partial interests; (6) to restrain the assertion of doubtful rights in a manner productive of irreparable damage; (7) to prevent injury to a third person by the doubtful title of others; and (8) to put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits. And further, that Courts of Equity, without pronouncing any judgment which may affect the rights of parties, extend their jurisdiction (9) to compel a discovery, or obtain evidence which may assist the decision of other courts; and (10) to preserve testimony when in danger of being lost before the matter to which it relates can be made the subject of judicial investigation.'1

33. Perhaps the most general if not the most precise description of a Court of Equity, in the English and American sense, is that it has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence,(a) where a plain, adequate, and complete remedy cannot be had in the Courts of Common Law.2 The remedy must be plain; for if it be doubtful and obscure at law, Equity will assert a jurisdiction.3 (b)

1 Dr. Dane, in his Abridgment and Digest, ch. 1, art. 7, §§ 33 to 51 (1 Dane, Abrid. 101 to 107), has given a summary of the differences between Equity Jurisdiction and Legal Jurisdiction in regard to contracts, which may be read with utility. See also Mitford, Eq. Pl. by Jeremy, 4, 5.

2 Cooper, Eq. Pl. 128, 129; Mitford, Eq. Pl. by Jeremy, 112, 123; 1 Wooddes. Lect. vii. pp. 214, 215.

8 Rathbone v. Warren, 10 John. R. 587; King v. Baldwin, 17 John. R.


(a) See Elborough v. Ayres, L. R. 10 Eq. 367, and note at the end of this section.

(b) If the remedy at law involve delay, and is inconvenient and circuitous, equity will assume jurisdiction. Clouston v. Shearer, 99 Mass. 209. But of course the mere fact that there is doubt in the mind of a party whether he can maintain an action at

law will not give jurisdiction to equity. Allen v. Storer, 132 Mass. 372; Clark v. Jones, 5 Allen, 379. Nor will the fact that the evidence in a cause will be voluminous and tedious give equity jurisdiction. Bowen v. Chase, 94 U. S. 812. Damages alone cannot become a ground of equitable relief. Pickman v. Trinity Church, 123 Mass. 1. Further see note (b), p. 25.

It must be adequate; for if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity.(a) 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 in a perfect manner at the present time and in future; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a Court of Equity is therefore sometimes concurrent with the jurisdiction of a Court of Law; it is sometimes exclusive of it, and it is sometimes auxiliary to it.2 (b)

1 See Dr. Lieber's Ency. Americana, art. 'Equity;' Mitford, Eq. Pl. by Jeremy, 111, 112, 117, 123; 1 Wooddes. Lect. vii. pp. 214, 215; Hinde's Pract. 153; Cooper, Eq. Pl. Sir James Mackintosh, in his Life of Sir Thomas More, says: 'Equity, in the acceptation in which the word is used in English Jurisprudence, is no longer to be confounded with that moral equity which generally corrects the unjust operation of law, and with which it seems to have been synonymous in the days of Selden and Bacon. It is a part of laws formed from usages and determinations which sometimes differ from what is called Common Law in its subjects; but chiefly varies from it in its modes of proof, of trial, and of relief. It is a jurisdiction so irregularly formed, and often so little dependent upon general principles, that it can hardly be defined or made intelligible otherwise than by a minute enumeration of the matters cognizable by it.' There is much of general truth in this statement; but it is perhaps a little too broad and undistinguishing for an accurate equity lawyer. Equity, as a science and part of jurisprudence built upon precedents as well as upon principles, must occasionally fail in the mere theoretical and philosophical accuracy and completeness of all its rules and governing principles. But it is quite as regular and exact in its principles and rules as the common law, and probably as any other system of jurisprudence established generally by positive enactments or usages or practical expositions in any country, ancient or modern. There must be many principles and exceptions in every system, in a theoretical sense arbitrary if not irrational, but which are yet sustained by the accidental institutions or modifications of society in the particular country where they exist. There are wide differences between the philosophy of law as actually administered in any country and that abstract doctrine which may in matters of government constitute in many minds the law of philosophy.

2 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ).


(a) Watson v. Sutherland, 5 Wall. 74; Thatcher v. Humble, 67 Ind. 444.

(b) Existence of a Remedy at Law. - How far the existence of a remedy at law in general operates to prevent jurisdiction in equity is considered in many of its features in the text; and it is there shown that there are not a

few cases in which equity has a concurrent jurisdiction with Courts of Law in cases in which all needful relief may be given in those courts. Some special questions of concurrent jurisdiction remain to be considered.

In the beginnings of the distinct jurisdiction of the chancellor, — for

34. Many persons, and especially foreigners, have often expressed surprise that distinct courts should in England and

the chancellor at first sat with the other judges in the ordinary tribunals (Bigelow's History of Procedure, 19),

that functionary held court mainly for two purposes, so far as litigation was concerned: first, for the protection of the poor and the weak against the rich and the strong, who, when they found the king's judges unwilling to aid them sufficiently, were seldom above overawing the courts themselves; secondly, for alleviating the misfortune that had come about in the thirteenth century by the narrowing of the jurisdiction of the ordinary courts to certain specific modes of relief, as seen especially in the forms of action of the common law. Ib. 198; Bigelow, Elements of Equity, 5-7. The relief given by the Stat. of West. 2, ch. 24, authorizing actions on the case, was but partial.


The first of these grounds of jurisdiction substantially disappeared long ago, though not without leaving traces of its existence in the law of to-day. See Worthy v. Tate, 44 Ga. 152 (statutory law as to poverty); Frederick v. Groshon, 30 Md. 436, 446 (powerful corporations). It is enough now, in ordinary cases, so far as any question of poverty of the plaintiff or power of the defendant is concerned, that the cause of action may be satisfactorily tried at law, assuming of course that it is not a case of concurrent jurisdiction in equity. The second ground is the one on which jurisdiction in equity is at this day mainly entertained. It is the case in which the plaintiff has no plain, adequate, and complete remedy at law.

Our American Courts of Equity have had much difficulty under this head, distinct from the difficulties which the English Chancery has encountered; or at least they have failed to agree upon any consistent rule of

jurisdiction with regard to cases remediable at law. Many of our courts derive their powers from statute; and it is probably accurate to say that if, and in so far as, the statute has actually derogated from the powers of the common-law tribunals, the law must be strictly construed, and not taken to confer the broad jurisdiction of equity in England, unless the statute itself indicate the contrary intention. For the converse case see Lane v. Marshall, 1 Heisk. 30; and see State v. Alder, Ib. 543, 547; McGough v. Insurance Bank, 2 Ga. 151, 154.

But the chief difficulty arises with statutes which do not apparently derogate from the powers of the law courts. The statute of Massachusetts may be taken as a typical case for consideration. That statute in conferring equity jurisdiction upon the Supreme Court of the State declares that the court may hear and determine in equity all causes hereafter mentioned, when the parties have not a plain, adequate, and complete remedy at the common law,' and then enumerates the ordinary heads of equity. Pub. Stats. ch. 151, § 2. There the statute stopped, until in 1877 another section was added, to be noticed presently.

This statute - as it stood before 1877- has always been strictly construed, and not as declaratory of any existing rule, or as equivalent to the adoption of the jurisdiction of the English Court of Chancery; indeed the courts have looked with scant favor upon jurisdiction in equity. Bassett v. Brown, 100 Mass. 355; Pratt v. Pond, 5 Allen, 59; Martin v. Graves, Ib. 601; Jones v. Newhall, 115 Mass. 244, 251; Suter v. Matthews, Ib. 253; Hubbell v. Courrin, 10 Allen, 333. For example, though fraud in procuring a deed to land (or of any written contract, valid on its face, Simp

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America be established for the administration of equity, instead of the whole administration of municipal justice being confided

son v. Howden, 3 Mylne & C. 97; Hoare v. Bremidge, L. R. 8 Ch. 22; British Assur. Co. v. Great Western Ry. Co., 38 L. J. Ch. 132; s. c. on appeal, Ib. 314) affords in England a clear ground for jurisdiction in equity; Simpson v. Howden, supra; and see Holliway v. Holliway, 77 Mo. 392; post, § 700; - in Massachusetts, before 1877 (and perhaps still), if the aggrieved party was in a position to maintain a writ of entry, he could not have relief in equity from such a deed. It would not be treated as a cloud to be removed by equity, though after the recovery in the writ of entry the deed would still be in existence and might be on record. Bassett v. Brown, 100 Mass. 355, Pratt v. Pond, 5 Allen, 59. (But cases like this may be deemed to have fallen to some extent under the influence of special statute in relation to quieting titles.) Indeed a strict construction of the statute, consistently maintained, would virtually exclude all concurrent jurisdiction except in cases where a defective remedy at law has been perfected. Jones v. Newhall, 115 Mass. 244, 250, 252.


In contrast with the construction of the Massachusetts statute, the Federal Judiciary Act of 1789, ch. 20, § 16, which declares that suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law,' had already been repeatedly pronounced to be merely declaratory of the pre-existing rule; it was not intended to narrow jurisdiction in equity, but on the contrary to affirm the general doctrine of Courts of Equity, as handed on from England. Mr. Justice Story directly says that the equity jurisdiction of the United States Courts does not depend upon what is exercised by Courts of Equity or Courts of Law in the several

States, but upon what is a proper subject of equitable relief in Courts of Equity in England. Bean v. Smith, 2 Mason, 252, 270, citing Robinson v. Campbell, 3 Wheat. 212, 221; United States v. Howland, 4 Wheat. 108, 115. See also, to the effect that the act is merely declaratory of the pre-existing rule, Oelrichs v. Spain, 15 Wall. 211, 228; Parker v. Winnipiseogee Co., 2 Black, 545, 551; Boyce v. Grundy, 3 Peters, 210, 215; Woodman v. Freeman, 25 Maine, 531, 541; Baker v. Biddle, Baldw. 394, 403. But the Supreme Court, while admitting the jurisdiction, appear to have departed from the rule in one case. Insurance Co. v. Bailey, 13 Wall. 616, where cancellation of a policy of insurance for fraud was refused. See infra as to this point. And as to asserting the jurisdiction but declining to exercise it, see Hoare v. Bremridge, L. R. 14 Eq. 522; s. c. 8 Ch. 22, 27; Shepard v. Brown, 4 Giff. 208, 218; In re Whitehead, 28 Ch. D. 614; also infra, near the end of this note.

The disfavor shown in Massachusetts towards enlarged jurisdiction in equity culminated with the cases of Jones v. Newhall, 115 Mass. 244, and Suter v. Matthews, Ib. 253; in the first of these cases especially, the court, by Mr. Justice Wells, defending and applying, in an elaborate judgment,the narrower view of jurisdiction which had been persistently maintained in that State. The case was a bill to enforce, in favor of the vendor, a contract for the sale of land and other property which would have been sustained, it seems, in England on the principle of mutuality of relief to vendor and purchaser. Post, § 723. In the course of the opinion (p. 252), refusing jurisdiction, the court sought to fortify their position by decisions of the Supreme Court of the United

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