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CHAPTER XI

PROCEDURE IN EQUITY

103. Federal equity procedure in general. § 104. General course of a suit in equity. § 105. The pleadings-General provisions. § 106. The bill.

107. Parties.

108. Process.

109. Defenses-In general.

§ 110. The answer.

§ 111. Plaintiff's course after answer filed.

§ 112. The trial-Evidence.

§ 113. Continuances.

§ 114. Injunctions.

§ 115. The decree.

$116. Decree pro confesso.

117. Enforcement of decree.

§ 103. Federal equity procedure in general. The procedure of the federal equity courts is entirely independent of that of the state courts. Formerly, and until the adoption of the new equity rules, it was in general the same as that of the High Court of Chancery of England as modified by statute and by rules of court. It is provided by statute that

"The forms of mesne process and the forms and modes of proceeding in suits of equity and of admiralty and of maritime jurisdiction in the circuit and district courts shall be according to the principles, rules and usages which belong to courts of equity and of admiralty, respectively, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the

Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States." 1

"The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings and obtaining evidence, of obtaining discovery, of proceeding to obtain relief, of drawing up, entering and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity, or admiralty, by the circuit and district courts."2

Authority is also given to the circuit (now obsolete) and district courts to make rules and orders regulating their own practice not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court.3

Under the authority of the above statutes the Supreme Court has from time to time prescribed rules to regulate the equity practice in the federal courts, the latest set prior to the adoption of those now in force being the rules promulgated in 1842, with several supplemental rules adopted in later years. These rules embodied in general the English equity practice and remained in force until February 1, 1913, when a new set of rules promulgated by the Supreme Court, November 4, 1912, went into effect.4

The new rules have radically changed federal equity practice; some of the old pleadings have been abolished and the procedure generally has been much simplified.

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There are no separate equity courts in the federal system. The same court sits both as a court of law and as a court of equity, though the practice on the two sides of the court is different.

It is proposed in the present chapter to set out in outline a suit in equity in the federal courts.

§ 104. General course of a suit in equity. The first step in an equity suit is the filing of the bill by the plaintiff. This contains a brief statement of his case. Upon the filing of the bill, and upon application of the plaintiff, the clerk of the court is required to issue process. The plaintiff's application for process is called the "precipe." The process by which the defendant is required to appear and answer the plaintiff's bill is known as the "subpoena." It is the duty of the defendant upon being served with process to file his answer or other defense within the time required by the subpoena. Upon his failure to do so the bill may be taken pro confesso and decree entered thereon for the plaintiff.

If the defendant wishes to make defense he may do so by motion or by answer, the latter being the form of defense on the merits. Ordinarily the filing of an answer by the defendant completes the pleadings, no reply by the plaintiff being usually required. The case is now ready for trial.

In all trials in equity, as in actions at law, the evidence is in the form of the testimony of witnesses taken in open court, but depositions may be taken in exceptional cases. There is, in equity, no jury trial. Matters of accounting are referred to a master in chancery. The subjects of receiverships and injunctions are carefully regulated by statute. The final stage of the suit is the decree of the court, from which, however, an appeal may be taken.

§ 105. The pleadings-General provisions. The pleadings in equity have been greatly simplified by the new

equity rules. The following are the rules of general application:

forms abrogated.

Rule 18. Pleading-Technical Unless otherwise prescribed by statute or these rules the technical forms of pleadings in equity are abolished.

Rule 24. Signature of counsel. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not interposed for delay.

Rule 21. Scandal and impertinence. The right to except to bills, answers and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit.

Rule 78. Affirmation in lieu of oath. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him."

Rule 19. Amendments generally. The court may at any time, in furtherance of justice, upon such terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in an amended or supplemental pleading.

5-As to officers before whom pleadings may be verified, see rule

The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties."

Rule 20. Further and particular statement in pleading may be required. A further and better statement of the nature of the claim or defense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just.

Rule 34. Supplemental pleading. Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit determining the matters in controversy or a part thereof.

Rule 35. Bills of revivor and supplemental bills— Form. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it.

§ 106. The bill. Except where a reply is in order, the plaintiff's only pleading is the bill of complaint. He begins the suit by filing his bill and in it he states his case. The bill is, therefore, very important, but it is quite simple in its nature. The general character and requirements of the bill are set forth in Rule 25 as follows:

6-As to amendment of the bill, see rules 28, 43 and 45, and as to

amendment of the answer, see rule

30.

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