Suits in Chancery PDF

; PREFACE TO THE FIRST EDITION. While there is a general family resemblance between the systems of jurispru- dence prevalent in the various States of the Union, the differences and peculiarities systems of pleading and practice are, nevertheless, so great that no work, in their dealing with t...

; PREFACE TO THE FIRST EDITION. While there is a general family resemblance between the systems of jurispru- dence prevalent in the various States of the Union, the differences and peculiarities systems of pleading and practice are, nevertheless, so great that no work, in their dealing with the procedure in Courts, unless which he Books of general lives. tioner needs much practical value to the practitioner, progress of a practice, with foot-notes of the diverse rulings What a book on Court procedure that omits everything that is own in his State, and contains everything that he Such a book suit. Chancery practice What of more confusing than enlightening. in various States, are often law is adapted to the jurisprudence and practice of the particular State in is it is I is likely to have endeavored to make this, What happens suits, I the exceptional and the mon, in my our in so far as the And while I Volume fill several matters of pleading and practice in 99 out of every have labored to give; what«may happen not striven to forecast. libraries. in the concerned. ordinarily happens in a litigation can well be compressed into one volumes. not the is need but what very seldom happens, the unusual and the possible, would 100 the practi- in the hundredth have suit, I The ordinary law is comparatively small in compass it is uncommon that necessitate a multiplicity of books, and fill : have not attempted to give what is exceptional and uncom- purpose has been to give everything likely to prove of value, to be found statutes, decisions, and and rules of practice, in standard authorities on the subject. 1. In Matters of Equity Jurisprudence, and the Story, 2. statutes and with our statutes. sistent The many work judicial decisions of In Matters of Chancery Pleading, largely. this I our is based mainly on Pomeroy, own State. have followed Story, in so far as con- Daniel and Barbour have, also, been drawn on, quite differences, between our system of pleading and that of the English Court of Chancery, are clearly pointed out, where necessary to prevent confusion. 3. In Matters of Chancery Practice, the works of Daniel and Barbour have been relied on when consistent with our system of jurisprudence. statutes, decisions, rules of practice, and PREFACE. VI In Drawing the Forms, Pleadings, Orders, and Decrees, brevity, simplicity, 4. perspicuity and precision have been constantly kept prolixity have been avoided • view; and surplusage and In the Arrangement cf the Contents of the Book, everything has been given 5. order of time in which in the . in and reprehended. it usually takes place in the progress of a suit, when possible so to do. In Providing Means for Finding any Particular Matter in the Book, a 6. full index has been given in the back part of the book, and a complete table of contents in the front part of the book and the ; titles given in the top margins of the book, and the foot-notes. Each of the chapters and articles have been many cross references will be found in section begins with a statement of its subject, in bold face type. The and object of this to contribute those Courts. work is somewhat to aid those to the who minister in the Chancery Courts; improvement of the pleadings and practice HENRY R. GIBSON. in PREFACE TO THE SECOND EDITION. Whatever of the a man does he flatters himself he can improve on, and so the author aware of edition of this work, better first its anyone deficiencies than else, began the preparation of what he hoped would be an improved edition before the first had been The main but it left was expressed object of the original edition many To considered. The fully printed. suits- in Chancery unconsidered, and supply these deficiencies deficiencies the in the is that the necessary additional matter others very imperfectly main object of the present edition were caused, first and Preface; in its Title, left first, edition. by an apprehension would make too unwieldy a volume second, by the author's duties as Chancellor engrossing too much and ; of his time. Tn preparing this edition, the author has had adequate time, and the suggestions Law of a considerable proportion of the lawyers of the State, besides the use of the Library of Congress for over ten years: so he hopes the deficiencies have been reduced to the The minimum consistent with one volume. present edition, (which contains 20 per cent treats of every kind of suit in Chancery more matter 1 than the original,) the average lawyer will be called bring, or defend, in an average lifetime, 2 the suits oftenest brought being on to most fully considered. The author cannot cellors of the State, edition and publication. it and to the members largely compensated first : forbear expressing his gratitude to the Judges and Chan- him In this connection it of the bar, for their kind reception of the for the drudgery devoted to may its compilation not be out of place to say, that none of the references to reports and text books in either edition are second-hand, but and can be are the results of original investigation, The Code implicitly relied on. references are, unless otherwise noted, to the reasons for this are, 1st, it is quent Codes contain it, the only Statutory so far as extant and ; Code of 1858 Code of the State 3rd, this work may ; : the 2d, all subse- outlive the tem- porary Codes of individuals, (of which there have already been four,) but cannot hope to outlive the Code of the Statutes passed since the State. Code of 1858 are usually referred to by the date and chapter of the Act. The No quotations of book that gewgaws maxims treats of to illustrate the text will, Equity is believed, prove helpful. it is complete without- them. of pedantic lore, but the crystallized preserved by the masters of jurisprudence. wisdom of HENRY They are not the mere the law, polished and R. GIBSON. Knoxville, Tenn., March 4, 1907. 1 61 old sections have been omitted or consolidated, and 244 new sections added. Over 1,000 of the old sections have been re-written, or revised. I I 2 Ad ea quce frequentius accidunt jura adaptantur. CONTENTS. PART I. THE CHANCERY COURT: ITS HISTORY, JURISDICTION, PRINCIPLES. CHAPTER AND I. THE HISTORY OF THE CHANCERY COURT. SECTIONS Article I. II. The Origin and Evolution of Equity Jurisprudence The History of the Chancery Courts of Tennessee CHAPTER 1-9 10-15 II. JURISDICTION OF THE CHANCERY COURT. Article I. Jurisdiction of the Chancery Courts Generally Considered 16-22 II. Equitable, or Inherent, Jurisdiction of the Chancery Court 23-25 Statutory Jurisdiction of the Chancery Court 26-30 III. CHAPTER III. MAXIMS AND PRINCIPLES OF EQUITY. Article I. II. III. Maxims and Principles of Jurisdiction Maxims and Principles of Adjudication Maxims Applicable to the Court, and to its CHAPTER 31-40 41-60 Practice and Pleadings 61-64 IV. NOTICE, LIS PENDENS, ESTOPPEL, ACQUIESCENCE, NEGLIGENCE, LACHES, WAIVER AND CONSENT. Article I. II. Lis Pendens, Estoppel, Acquiescence, Negligence, and Laches Waiver and Consent Notice, CHAPTER PRIORITIES, 65-70 71-72 V. AND BONA FIDE PURCHASERS. 73-76 X CONTENTS. • PART II. PROCEEDINGS IN A SUIT IN CHANCERY, FROM ITS PRELIMINARIES TO THE APPEARANCE OF THE DEFENDANT. CHAPTER VI. SECTIONS PROCEEDINGS PRELIMINARY TO A CHAPTER Article I. II- General Rules as to Parties IV. Who Who VII. VIII. 77-79 VII. PARTIES TO SUITS IN CHANCERY'. May Sue in Chancery who Who May be Sued in Chancery HI. V. VI. SUIT. 80-85 • 90-95 Should be Complainants Should be Defendants Next Friends and Guardians ad Litem Mis-joinder and Non-joinder of Parties Effect of Death or Marriage of Parties, or Assignment of their '. X. 103-108 109-112 117-127 Parties in Particular Suits Parties in Suits by 96-99 100-102 113-116 Interests IX. 86-89 and against the State, Counties, Cities, and Corporations 128-131 CHAPTER VIII. ORIGINAL BILLS IN CHANCERY. Article I. II. Original Bills Generally Considered 132-138 Frame 139-152 of an Original Bill III. Form IV. Practical Suggestions as to the of an Original Bill 153-164 Drawing CHAPTER of Bills 165-173 IX. PROCEEDINGS PRELIMINARY TO PROCESS. Article I. II. III. Proceedings Preliminary to Extraordinary Process 174-176 Filing of the Bill 177-179 Proceedings in Reference to Costs 180-183 CHAPTER X. ORIGINAL PROCESS IN CHANCERY. Article I. II. III. IV. Original Process Generally Considered 184-186 Subpoena to Answer Process by Publication Attachment to Compel an Answer 187-195 CHAPTER 196-200 201-204 XI. PROCEEDINGS BETWEEN PROCESS AND APPEARANCE. Article I. II. Pro Confessos, and Proceedings Thereon 205-213 Motions by the Complainant 214-221 CONTENTS. PART Xt III. PROCEEDINGS IN A SUIT IN CHANCERY, FROM THE APPEARANCE OF THE DEFENDANT TO THE CLOSE OF THE PLEADINGS. CHAPTER XII. APPEARANCE AND DEFENCE. Article I. II. III. SECTIONS 222-228 Appearance by the Defendant 229-232 Defences Generally Considered Preliminary Motions by the Defendant CHAPTER 233-239 XIII. PLEAS IN ABATEMENT. Article I. Pleas in Abatement Generally Considered 240-243 Pleas in Abatement to the Process 244-246 III. Pleas in Abatement to the Bill 247-252 IV. Frame and Form V. VI. Pleas in Abatement in Attachment Suits II. Proceedings Upon of Pleas in Abatement a Plea in Abatement. CHAPTER 255-259 260-265 . . . ' XIV. MOTIONS TO DISMISS CHAPTER 253-254 BILLS. 266-274 XV. DEMURRERS. Article I. II. III. IV. V. VI. VII. Demurrers Generally Considered Demurrers by Allowance Demurrers of Right Rules Governing Demurrers Frame and Form of Demurrers Action of the Court on Demurrers Practical Suggestions Concerning Demurrers CHAPTER , 275-280 281-288 289-300 301-308 309-312 313-316 317-319 XVI. PLEAS IN BAR. Article I. II. III. IV. V. Pleas in Bar Generally Considered Kinds of Pleas in Bar Frame and Form of Pleas in Bar Pleas Supported by an Answer Proceedings upon a Plea in Bar 320-324 325-334 335-340 341-349 , 350-354 . CONTENTS. Xll CHAPTER XVII. ANSWERS AND DISCLAIMERS TO Article I. II. The Answer The Answer BILLS. as a Pleading • . as a Deposition Common Matters IV. The Frame and Form V. VI. Practical Suggestions as to to all 361 367 Answers III. SECTIONS 355-360 368-376 Answer Answers of an 377-386 387-392 Disclaimers to Bills 393-398 CHAPTER XVIII. CROSS BILLS. CHAPTER 399-401 XIX. THE JOINDER OF DIFFERENT DEFENCES TO A BILL 402-405 CHAPTER XX. ANALYSIS AND COMPARISON OF PLEADINGS. Article I. II. Rationale of Pleadings 406-410 Different Defences Distinguished 411-415 CHAPTER HOW Article XXI. PLEADINGS ARE TESTED. Testing the Sufficiency of Pleadings Exceptions to Answers 416-419 II. III. Suggestions as to Testing Pleadings 425-426 I. CHAPTER 420-424 XXII. AMENDED AND SUPPLEMENTAL PLEADINGS. Article I. II. III. IV. Amendments to Pleadings Generally Considered Amended and Supplemental Bills Amended Demurrers and Pleas Amended and Supplemental Answers PART 427-429 430-431 432-433 434-437 IV. PROCEEDINGS IN A SUIT IN CHANCERY, EROM THE CLOSE OF THE PLEADINGS TO THE CONCLUSION OF THE HEARING. CHAPTER XXIII. HEARING A CAUSE ON BILL AND ANSWER. 438-440 CONTENTS. Xlll CHAPTER XXIV. EVIDENCE IN CHANCERY. Article I. II. III. IV. V. SECTIONS 441-451 Evidence Generally Considered When Proof is, and is not, NeCessary Pleadings when Evidence When Proof Must be Filed Practical Suggestions concerning Proof 452-457 458-462 463-468 469-473 CHAPTER XXV. DEPOSITIONS IN CHANCERY. Article I. II. III. IV. V. Depositions Generally Considered 474-479 Notice to Take Depositions 480-482 Depositions Taken on Interrogatories Formalities of a Deposition 483-485 486-491 Powers and Duties of Commissioners, and Rights and Duties of Witnesses VI. VII. VIII. • Exceptions to Depositions Amendment 492-496 497-501 of Depositions 502-504 Practical Suggestions about Depositions 505-513 CHAPTER XXVI. MOTIONS PREVIOUS TO THE HEARING. Article I. II. III. IV. Motions Before the Case is Called Motion for a Continuance Motions to Dismiss the Bill Suggestions How to Prevent Delays, Arising From Amendments and Continuances '. CHAPTER 514-518 519-522 523-525 526-529 XXVII. THE HEARING, OR TRIAL OF THE CAUSE. Article I. II. III. The Hearing; by the Chancellor 530-538 Incidents of the Hearing 539-546 Trial by Jury 547-554 PART V. PROCEEDINGS IN A SUIT IN CHANCERY, FROM THE CONCLUSION OF THE HEARING TO THE ENFORCEMENT OF THE DECREE. CHAPTER XXVIII. DECREES ON THE MERITS. Article I. II. III. IV. Nature and Extent of the Relief Granted Decrees Generally Considered Kinds of Decrees Practical Suggestions as to Decrees 555-563 564-574 575-579 580-581 CONTENTS. XIV CHAPTER XXIX. DECREES AS TO COSTS. SECTIONS Article I. II. Costs Generally Considered The Adjudication of Costs 582-S8S 586-593 . CHAPTER XXX. REFERENCES TO THE MASTER AND PROCEEDINGS THEREON. Article When References are Necessary, or Proper Proceedings upon a Reference 603-610 III. The Master's Report 611-614 IV. Proceedings upon a Master's Report I. II. 594-602 ' 615-620 CHAPTER XXXI. DECREES OF SALE AND PROCEEDINGS THEREON. Article I. II. III. IV. V. Sales Generally Considered Report of Sales, and Proceedings Thereon Opening of Biddings Purchasers' Duties, Rights and Liabilities Payment of Money under a Decree to Parties Entitled , HOW Article CHAPTER 634-639 640-643 644-645 XXXII. DECREES ARE ENFORCED. Final Process Generally Considered Transfer of Title by Decree, or Deed 646-648 III. Final Process Against the Person 651-652 IV. Final Process Against Property 653 657 V. VI. Sequestrations to Enforce Decrees 658-661 Proceedings in Enforcement of Decrees on Remandment. 662-665 I. II. PART BILLS IN 649-650 VI. CHANCERY RELATING TO ORIGINAL CHAPTER I. II. III. Amended BILLS. XXXIII. AMENDED AND SUPPLEMENTAL Article 621-627 628-633 BILLS. 666-679 Bills Supplemental Bills Defences to Amended and Supplemental 680-692 Bills 693-697 CHAPTER XXXIV. ABATEMENT AND REVIVOR. Article I. II. Bills of Revivor Statutory Methods of Revivor Akin Revivor Proceedings to Revive to Bills of III. Bills IV. Defences to 698-709 710-716 717-719 720-722 XV CONTENTS. CHAPTER XXXV. BILLS TO CARRY DECREES INTO EXECUTION. SECTIONS 723-724 CHAPTER XXXVI. CROSS BILLS. PART . 725-738 VII. INTERLOCUTORY APPLICATIONS IN SUITS IN CHANCERY, AND PROCEEDINGS THEREON. CHAPTER XXXVII. MOTIONS IN COURT, AND PROCEEDINGS THEREON. Article I. II. III. IV. V. VI. Motions Motions Motions Motions Motions Motions Generally Considered by the Complainant by the Defendant Common to Both Parties by Strangers and Quasi Parties About Paying Money Into, or Out CHAPTER 739-743 744-749 7S0-7S2 753-762 763-764 of, Court 765-769 XXXVIII. MOTIONS AT CHAMBERS, AND PROCEEDINGS THEREON. Article I. II. Jurisdiction of the Chancellor at Chambers at Chambers , Proceedings before the Chancellor 770-775 776-783 CHAPTER XXXIX. AFFIDAVITS. CHAPTER 784-790 XL. PETITIONS. CHAPTER SUITS FOR INJUNCTIONS, Article 791-799 XLI. AND PROCEEDINGS THEREIN. Injunctions Generally Considered 8C0-803 804-826 IV. Cases Injunctions will be Granted How Injunctions are Obtained, Issued, and Served Pleadings in Injunction Suits, and Reliefs Granted V. VI. Violations of Injunctions, and Remedies Therefor The Dissolution of Injunctions 845-848 I. II. III. VII. In What Injunction and Refunding Bonds, and CHAPTER SUITS PRAYING their Breach 827-837 838-844 849-858 859-863 XLII. NE EXEATS, AND PROCEEDINGS THEREIN. 864-868 CONTENTS. fXvi CHAPTER SUITS IN Article I. II. XLIII. CHANCERY FOR ATTACHMENT OF PROPERTY. Bills, . CHAPTER SUITS FOR RECEIVERS, Article I. II. III. IV. V. SECTIONS 869-883 and Proceedings Thereon Defences, Decrees, and Subsequent Proceedings Attachment . 884-890 XLIV. AND PROCEEDINGS THEREIN. Receivers Generally Considered In What Case a Receiver will be Appointed 891-894 Time and Manner 903-909 895-902 of Appointing Receivers 910-913 Powers, Duties, and Liabilities, of Receivers Settlements, Removal, and Discharge, of Receivers 914-917 CHAPTER XLV. ATTACHMENTS OF THE PERSON FOR CONTEMPT. PART 918-924 VIII. PARTICULAR SUITS IN CHANCERY SPECIALLY CONSIDERED. CHAPTER XLVI. SUITS IN RELATION TO TRUSTS. Article I. II. Suits in Relation to Express Trusts Suits in Relation to Resulting CHAPTER SUITS ARISING Article I. II. III. I. III. XLVI. FROM FRAUDS, ACCIDENTS, AND MISTAKES 932-935 from Constructive Frauds Suits Arising from Accidents and Mistakes 936-9'S Suits Arising SUITS TO SET UP, REFORM, II. 930-931 Suits Arising from Actual Frauds CHAPTER Article 925-929 and Constructive Trusts 939-941 XLVII. AND RESCIND WRITINGS. Suits to Set up Written Instruments Suits to Reform Written Instruments Suits to Rescind Written Instruments CHAPTER SUITS FOR . 945-946 947-948 XLVIII. SUITS FOR SPECIFIC PERFORMANCE. CHAPTER 942-944 . 949-951 XLIX. AN ACCOUNTING. 952-958 XVU CONTENTS. CHAPTER L. SUITS IN RELATION TO PARTNERSHIPS. CHAPTER LI. SUITS FOR EXONERATION, SUBROGATION Article AND CONTRIBUTION. I. Suits for Exoneration 962-963 II. Suits for Subrogation 964-965 III. Suits for Contribution 966-967 CHAPTER LII. SUITS RELATING TO PERSONS Article I. II. III. Suits Where the Chancery Court Acts I. II. III. Suits to Sell a Decedent's Land Suits Suits V. LIV. WITHOUT REMEDY AT LAW. CHAPTER 1009-1018 1019-1024 1025-1027 1028-1029 LV. SUITS TO ENFORCE LIENS. CHAPTER I. 1005-1008 1030-1035 Debtor's Property SUITS TO PROTECT 988-996 997-1004 '. VI. 980-984 985-987 Pay His Debts to where Judgment at Law Cannot be Obtained where Judgment at Law Has been Obtained, but Execution at Law Cannot be Levied Suits where Judgment at Law Has been Obtained, but a Discovery of Property is Necessary Suits where a Creditor Has Obtained a Judgment in Another State, and Has Exhausted his Legal Remedy Suits where Judgments at Law May be Had, but Execution at Law Cannot be Levied Suits by General Creditors for their Pro Rata of an Insolvent I. 972-979 UII. Suits to Administer Insolvent Estates II. IV. 968-971 Wives Suits to Appoint an Administrator SUITS BY CREDITORS III. Guardian THE ESTATES OF DECEDENTS. CHAPTER Article as DISABILITY. Unsound Mind Suits Relating to Persons of SUITS TO ADMINISTER Article UNDER Suits to Sell or Lease the Property of Infants and CHAPTER Article SECTIONS 959-961 1036-1041 LVI. AND RECOVER REAL AND PERSONAL PROPERTY. Suits to Protect Interests in Land Land 1042-1044 Suits to Recover Interests in 1045-1050 III. Suits to Recover Escheated Property 1051-1052 IV. Suits to Recover Personal Property 1053-1057 II. CONTENTS. xviii CHAPTER EVIL SUITS TO PARTITION LANDS, OR THEIR PROCEEDS. SECTIONS Article I. II. III. Partition by Division 1058-1064 Partition by Sale Gross Value of Life Estate 1065-1069 1070 1072 CHAPTER CHANCERY SUITS IN LVIII. CHAPTER SUITS IN ACTIONABLE AT LAW. IN CASES LIX. THE NATURE OP A QUO WARRANTO PROCEEDING. CHAPTER CHAPTER Article I. II. III. SUITS Article I. II. III. IV. 1084-1087 LXI. AND ALIMONY. 1088-1091 Matters Relating to the Jurisdiction Pleadings and Procedure Trial, Orders, 1081-1083 LX. SUITS FOR WRITS OF MANDAMUS. SUITS FOR DIVORCE 1073-1080 1092-1098 and Decrees 1099-1105 CHAPTER LXII. WHERE NO RECOVERY IS SOUGHT. Suits for an Interpleader 1106-1115 Suits for a Discovery 1116-1124 Testimony Suits to Take Testimony de Bene Esse Suits to Perpetuate PART 1125-1132 : 1133-1135 IX. THE OFFICERS AND RULES OF THE CHANCERY COURT. CHAPTER LXIII. THE CHANCELLOR: HIS POWERS AND DUTIES. Article I. II. The Qualifications and Powers of the Chancellor 1136-1138a 1139-1141 Duties of the Chancellor III. Provisions IV. The when the Chancellor is Incompetent 1142-1147 Etiquette of the Chancery Court CHAPTER 1148-1152 LXIV. THE CLERK AND MASTER: HIS POWERS AND DUTIES. 1153-1172 CHAPTER LXV. SOLICITORS THEIR RIGHTS, DUTIES : AND LIABILITIES. 1173-1184 xix CONTENTS. CHAPTER THE SHERIFF: LXVI. SECTIONS HIS DUTIES. CHAPTER 1185-1188 LXVII. RULES OF THE COURT. PART 1189-1205 X. PROCEEDINGS FOR THE CORRECTION OF ERRORS. CHAPTER NEW Article I. II. III. New New Trials After LXVIII. TRIALS AND REHEARINGS. Judgment at Law 1205a-1209 Trials After Verdict in Chancery 1210-1214 Rehearings in Chancery 1215-1222 CHAPTER LXIX. BILLS OF REVIEW. Article I. II. III. IV. V. VI. Review Generally Considered Review for Errors of Law Bills of Review for New Proof The Leave to File a Bill of Review Frame and Form of a Bill of Review Defences to a Bill of Review 1223-1231 Bills of 1232-1236 Bills of 1237-1239 1240-1243 1244-1248 1249-1253 CHAPTER LXX. WRITS OF ERROR CORAM NOBIS. CHAPTER LXXI. APPEALS IN THE CHANCERY COURT. CHAPTER 1254-1261 1262-1269 LXXII. WRITS OF ERROR, AND OF SUPERSEDEAS. Article I. II. Writs of Error Writs of Supersedeas 1270-1276 1277-1279 CHAPTER LXXIII. TRANSCRIPTS FOR APPEALS, AND WRITS OF ERROR. 1280-1286 CHAPTER LXXIV. THE COURT OF CIVIL APPEALS ITS HISTORY : AND JURISDICTION. 1287-1291 CHAPTER LXXV. THE SUPREME COURT : ITS HISTORY AND JURISDICTION. 1292-1293a XX CONTENTS. CHAPTER LXXVI. PROCEEDINGS AND PRACTICE IN THE APPELLATE COURTS. SECTIONS Article I. II. III. IV. Matters Relating to their Jurisdiction and Powers ' Briefs in the Appellate Courts Motions in the Appellate Courts The Hearing and Decrees in the Appellate Courts 1293b-1301 1302-1307 1308-1312 1313-1323 PART XL CHANCERY SUITS IN THE CIRCUIT AND COUNTY COURTS. CHAPTER LXXVII. CHANCERY SUITS IN CHAPTER CHANCERY SUITS Article I. II. III. IN THE CIRCUIT COURT. 1324-1326 LXXVIII. THE COUNTY COURT. Chancery Suits in the County Court Generally Considered Assignment of Homestead and Dower 1327-1328 Suits to Settle Insolvent Estates 1334-1342 PART 1329-1333 XII. INDEXES. PAGES GENERAL INDEX. 1085-1171 INDEX TO FORMS. 1172-1203 INDEX TO BRRATA. 1203 PART I. THE CHANCERY COURT: ITS HISTORY, JURISDICTION AND PRINCIPLES. CHAPTER I. THE HISTORY OE THE CHANCERY COURT. Article Article I. II. Origin and Evolution of Equity Jurisprudence. History of the Chancery Courts of Tennessee. ARTICLE AND EVOLUTION OF EQUITY JURISPRUDENCE. ORIGIN § 1. § 2. § 3. Civil Law its Development. Evolution of Equity in England. Character of the First Chancery Suits. The § : Some 6. § 7. How § 8. The Divine Law The Common Law 5. the Civil the Law has Followed Equity. of Justice the Rule of Decision. lors Acted. § Common of the Deficiencies of the Law. Principles on which the Early Chancel- § 4. I. as Compared with Other Causes Contributing to the Establishment of the Chancery Court. § 9. Law. — The Civil Law: Its Development. The system of jurisprudence called § 1. Equity was originally largely derived from the civil law of the Romans and its early development in England was similar to the development of an analogous system in the jurisprudence of Rome. Therefore, in endeavoring to trace the origin of the Chancery Court, it may be well to notice, briefly, the development ; of the civil law. The early laws of Rome, like the old common law of England, were exceedingly stern, rigid, formal and arbitrary, paying little attention to abstract right and justice. 1 Their judicial proceedings were technical to the last degree. Absolute accuracy was required in complying with the established phrases and acts in the enforcement of civil rights. Any omission, or mistake, of a word or a movement was fatal. 2 As civilization, however, progressed in Rome, subtle technicalities gave way to simpler methods of pleading but even then it was found that cases occasionally arose to which the improved formulas were inadequate. These extraordinary cases were decided by the praetor without being referred to the ordinary tribunal, and without being hampered by any technical requirements as to the proper formula, or kind of action, he himself determining both the law and the facts of the case. The complainant stated the facts of his case, the defendant set up his defense, the praetor decided. This extraordinary method of determining suits, so simple, so free from technicalities, so easily moulded to the exigencies of every case, was found so superior to even the ; 1 1 1 Pom. Eq. Jur., § 7. • $ | 2 1 Pom. Bq. Jur., § 3. ; ORIGIN AND EVOLUTION OF EQUITY. §2 improved formulas, that eventually superseded them, and became the only of the States and in England, the procedure by bill and answer has supplanted the rigid formulas of common law actions. 3 Not only were the pleadings thus simplified by the Roman jurists, but the law was correspondingly improved; and a deliberate and persistent effort was made to bring their jurisprudence into perfect harmony with an absolutely impartial equity, that should do equal and perfect justice to all. 4 And, thus, was perfected that system of jurisprudence known as the civil law, from which are derived many of the maxims, principles and doctrines of Equity, now followed and enforced in the Chancery Courts. 5 Evolution of Equity in England. The development of the extraor§ 2. dinary jurisdiction of the Chancery Court of England was similar, in its causes, progress and results, to the development of the system of Equity in the Roman law, as already intimated. 6 In England, the King was regarded as the fountain of justice;" and, when any person conceived that he had been wronged, either in court or out of court, he had the privilege of petitioning the King for redress. The King, being unable to hear and determine all of these complaints because of their number and complexity, generally referred them to his chief secretary, who was called his Chancellor. This officer was an ecclesiastic, trained in the law and theology of Rome, 7 and was sometimes called the "keeper of the King's conscience." 8 When thus directed to adjudicate the rights, and determine the remedies, of those petitioning the King for justice, the Chancellor naturally had recourse to the civil law of Rome, being most familiar therewith; and, also, finding therein a diviner sort of justice, and a simpler and more efficient form of procedure. Besides, these Chancellors, who were generally very able and very learned men, were no doubt, disposed to regard the English common law as a barbarous code compared with the Roman The Chancellor 's office was one of great trust and confidence he civil law. 9 was the King's adviser and confidant, the chief member of his eouncil, and the keeper of his great seal of State. He is spoken of, at a very early day, as one who "annuls unjust laws, and executes the commands of a pious prince, and puts an end to what is injurious to the people or to morals." 10 Character of the First Chancery Suits. The Chancellors, following the § 3. example of the Roman praetors, 11 applied the equitable principles of the civil law to the determination of all suits referred to them by the King. The suits thus referred were, generally 1, applications to obtain redress for injuries and acts of oppression where from the power of the offender, or for any other cause, a fair trial in the ordinary courts could not be had 2, cases where there were fraud, deceit and dishonesty beyond the reach of the common law; 12 and 3. eases where the common law was inadequate to the requirements of justice. In those times of disorder and oppression, many were the appeals to the King by the poor and the weak for protection against the rich and the strong, the local magistrates being often overawed and many were the complaints of want of remedy at law. The King, unable to give personal attention to so many petitions, finally, conferred upon the Chancellor full authority to give relief in all matters of "Grace," as these applications for redress were termed; and from this period petitions began to be addressed to the Chancellors themselves, and not to the King. This delegation of authority was made in the year 1348 mode of procedure, —much as, in it many — ' ' : — : ; ; 3 1 4 1 Pom. Eq. Jur., § Pom. Eq. Jur., 6. § See post, § lo. 8. s 1 Sto. Eq. Jur., § 23; 1 Pom. Eq. Jur., § 14. 6 1 Pom. Eq. Jur., §§ 1-9; 1 Sto. Eq. Jur., § 50. The fact that the first7 1 Sto. Eq. Jur., § 23. Chancellors were ecclesiastics, generally bish- ops or achbishops, accounts for and explains -various words and phrases found in the old forms of bills, such as: (1) "Orator," one who prays; (2) "doings contrary to conscience," the bishop being bound to act according to conscience; and being also, the keeper of the King's conscience; and (3) "and your orator shall ever pray, etc.," the full sentence being, "and your orator shall ever pray for you." Barton's Suit in Equity, 40, note; see also, Sto. Eq. PI., § 14; and Lube's Eq. PI., 260. This antiquated conclusion is still sometimes used. The Chancery Courts 8 Snell's Pr. Eq., 10. of Tennessee represent the conscience of the State, as the Chancery Court of England represented the conscience of the King. o 1 Pom. Eq. Jur., § 17. 10 Bouvier's Law Die, "Equity." 11 1 Sto. Eq. Jur., § 50. 12 1 Pom. Eq. Jur., § 31. ) ' ; ORIGIN AND EVOLUTION OF EQUITY. §4 and, in the next fifty years, the Equity jurisdiction of the Chancellor clearly established. 13 was — Principles on which the Early Chancellors Acted. When matters of § 4. Grace were thus referred to the Chancellor, he issued a writ commanding the party complained against to appear and answer the complaint, and abide by the order of the Court. 14 The principles on which the Chancellor based his decisions were those of Honesty, Equity and Conscience. 15 By "Conscience" was meant those obligations one person is under to another to exercise that good faith the other has a right to expect. 18 On an application to Parliament for redress, the petition was referred to the Chancellor, with the command: "Let there be done, by authority of the Parliament, that which right and reason, and good faith and good conscience, demand in the case. 17 Matters of Grace being thus brought before the Chancellor, as the keeper of the King's conscience, and he being required to do justice in the King's name, he felt under no obligation to determine the rights of petitioners by that law from which they had fled to the King for relief and, for reasons already stated, the Chancellors, at an early day, adopted the equitable principles and simple procedure of the civil law of Rome, adapting them, with wisdom and prudence, to the emergencies of the particular cases. The matters referred to them being matters of Grace and of conscience, the Chancellors felt bound to decide the cause according to conscience. The jurisdiction of the Chancellor being thus established upon Grace and conscience, and his judgments being in the name of the King, and by his authority, whenever the Courts of common law were inadequate to the demands of justice, the party unable to obtain relief therein would have recourse to the Chancellor, who in his Court, called the High Court, of Chancery of England, undertook, like the praetor of Rome, to administer an equity not found in the law, himself determining all questions both of law and fact, and rendering a decree adapted to all the exigencies of justice. 18 The Common Law as Compared with the Civil Law. The common law § 5. was then utterly incapable of doing complete justice in many cases and, in not a few cases, it furnished no remedy or relief whatever. It had certain rigid molds or formulas, into some one of which every cause of action had to be cast and if the cause could not be run into any of these molds, there was no redress; and if it could be run into one of the molds, only such redress as the formula gave could be had, regardless of the equities of the case, and the real rights of the parties. The fictions, formalisms and arbitrary technicalities of the common law, and its dialectical refinements, were inexplicable and incomprehensible jargon to the public, and often a costly mockery of justice to the litigants. Those who asked for bread were often given a stone, and those who applied for a fish sometimes received a serpent. Equity, on the other hand, disregarded forms, ignored fictions, subordinated technicalities to the requirements of justice, and indulged in no dialectical reIts pleadings were simple and natural, and its doctrines were finements. founded upon the eternal principles of right as interpreted by a lofty Christian Its great underlying principles, the constant sources, the never morality. i ailing roots of its particular rules, were the principles of equity, justice, mor' ; — ; 13 1 Sto. Eq. Jur., §§ 44; 46. 14 This writ was the subpoena. 15 1 Spenoe Eq. Jur., 338-339. 16 Ibid, 411. Fides est obligatio conscientiw aliening ad intentionem alterius. (Good. faith is an obligation binding the conscience of one party to a transaction according to the understanding of the other party. it Ibid, 346. The matters thus brought before the King were decided according to reason and conscience; and when matters were referred to the Chancellor, either by the King or by Parliament, he was required to do "that which right and reason, and good faith, and good conscience demanded in the case." The term 'conscience" embraced all those obligations which rested upon a person, who, from the circumstances in which he was placed towards anand the relations subsisting between them, was bound to exercise good faith in his conduct and dealings with that other person. 1 Spence Eq. Jur. 411. The early Chancellors decided, as a rule, according to this conscience, but, in process of time, a system of rules and general principles, based on reason and conscience, were evolved from the adjudications of the Court, or were adopted by the Chancellors from the jurisprudence of the Civil Law, as formulas to specify the nature and limit the extent of their equity jurisdiction. 1 Pom. Eq other, Jur., §§ 43-58. See post, % 58. is 1 Pom. Eq. Jur., § 5; Bisph. Pr. Eq., §§ 6-8. ;: ; ; ; § ORIGIN AND EVOLUTION OF EQUITY. 6 4 ality and honesty, enforced according to conscience and good faith, and so adapted to the requirements of each case and the complications of business affairs, that the rights and duties of all the parties were fully determined. 19 Some of the Deficiencies of the Common Law. The common law then § 6. was not what it has since become under the benign inspiration of the Chancery jurisprudence. 20 At common law, 1, a vendor's lien could not be enforced; 2, a fraudulent conveyance could not be set aside 3, a defective instrument could not be reformed; 4, a mistake or accident could not be effectually relieved against; 5, a debt, note or account could not be assigned; 6, a resulting trust could not be set up 7, a beneficial interest in property could not be enforced 8, a void instrument could not be cancelled 9, a will or trust could not be construed in advance of action thereon; 10, testimony could not be perpetuated; 11, a trust fund could not be impounded 12, a specific performance could not be decreed 13, an equitable partition of land could not be had 14, a deed could not be declared a mortgage 15, title to land could not be effectually quieted 16, waste, trespasses and other violations of rights could not be stayed; 17, a — ; ; ; ; ; ; ; forfeiture or penalty could not be relieved against; 18, a set-off could not be obtained 19, land could not be redeemed from a mortgagee 20, a lien on realty could not be enforced 21, a lost instrument could not be set up 22, the estates of minors and lunatics could not be administered 23, a pro rata distribution of assets could not be had 24, a contract could not be apportioned 25, a cloud could not be removed from one 's title 26, securities could not be marshalled 27, a partnership could not be wound up; 28, a subrogation or contribution could not be obtained; 29, trusts were not recognized, and could be violated with impunity; 30, a wife's equities did not exist; 31, a title bond was no defence to an action of ejectment; 32, an injunction could not be had in any case, or for any purpose, however great the wrong 33, receiverships were unknown 34, equitable rights and interests were not recognized, and, 35, frauds could ; ; ; ; ; ; ; ; ; not be adequately remedied. 21 How the Law has Followed Equity. Under the influence of the princi§ 7. ples of Equity as administered in Chancery, the rugged features of the common law have grown constantly more and more smooth and humane, and its capacity The evolution of the law in England to do justice has constantly increased. and in America has been on the lines marked out by Equity, 22 until, in the language of Lord Hale, "by the growth of Equity on Equity the heart of the common law has been eaten out." 23 To show the effect of the principles and doctrines of Equity upon our own statutes the following illustrations are cited 24 2, the whole law 1, the law in reference to gambling and wagering contracts of landlords', mechanics', laborers' and other liens; 25 3, the law of notice through registration of deeds 26 4, the pro rata distribution of insolvent estates; 27 5, the apportionment of rents; 28 6, the provisions for the benefit of married women; 29 7, the guardianship over the estates of infants and persons of unsound mind; 30 8, the allowance of set-offs; 31 9, the right to sue upon a debt, note or account purchased from the original creditor 32 10, the statutory remedy of interpleader 38 11, the right to set aside the satisfaction of a judgment; 34 12, the proceeding by garnishment; 35 13, the right to a sale of land — ; ; ; ; 19 1 Pom. Eq. Jur., §§ 25-30. 20 The present §§ 49-56; 1 common law of Sto. Eq. Jur., England is as is the dissimilar from that of Edward III as Jacob v. State, 3 present state of society. Hum., 493; Box v. Lanier, 4 Cates, 408. Equity jurisdiction was established in England in the reign of Edward III. Green v. Allen, 5 Hum., 197. Edward III was born in 1312, and died in 1377. 21 See 1 Pom. Eq. Jur., §§ 40; 43-88; 97; 102117; 137; 162; 155; 175; 182; 279-280; 340; 370406; 430; 912; 1098; 1121; 1179-1180; 1270; 1280. 22 Case, trover and assumpsit were invented to give quasi equitable remedies, in the Courts 1 Pom. Eq. Jur., §§ 24-29. of law. 23 3 Pom. Eq. Jur., § 24 Code, §§ 1769-1775. & 2.1 M. 33 31 35 Code, Code, Code, 1180, note. V.'s Code, § 2739-2799; 4280-4305. 26 Code, §§ 2071-2075. 27 Code, §§ 2311-2397. 28 M. & V.'s Code, § 3289. 29 Code, §§ 2478-2488. 30 Code, §§ 2489-2546; 3681-3719. 31 Code, §§ 2918-2925. Nashville Trust Co. Bank, 7 Pick., 336. 32 Code, §§ 2795-2797. § 2800. §§ 2990-2996. §§ 3087-3103. ORIGIN AND EVOLUTION OF EQUITY. 5 §8 partition; 36 for 14, the proceding at law to remove a cloud from title by suing a claimant not in possession, in ejectment; 37 15, the right to defend by title bond as by deed 38 16, the power to sell the property of infants and lunatics for reinvestment or support; 39 17, the right to impound the property of absconding ; debtors; 40 18, the remedies by motion allowed sureties; 41 19, the removal and appointments of trustees 42 20, giving the right to take depositions at law 43 21, making parties witnesses 44 22, providing for the perpetuation of testimony and the taking of evidence de bene esse; 45 23, allowing lost instruments to be proved 46 and authorizing lost records to be supplied. 47 All of these statutes are mere enactments of rights recognized and enforced, remedies employed, defences allowed, and procedures used, in the Chancery Court by virtue of its inherent jurisdiction, and were wholly unknown to the common law, their recognition in our Courts of law depending exclusively upon the statute, and the statute being suggested by the practice in Equity. The Divine Law of Justice the Rule of Decision. The statement, often § 8. made, that the Court of Chancery was established to mitigate the rigor of the common law, and to supply its defects, is not wholly true. 48 This Court was established to do justice, regardless of any and all law. The King deemed it a duty imposed upon his conscience, both by his oath and by religion, to "decree justice," and in decreeing justice he deemed himself bound rather by the Divine Law than by human law 49 and, when the Chancellor acted in his stead, he based his decisions, not upon the law of the land, but upon honesty, equity and conscience, for so was he commanded to do in exercising the King's prerogative of Grace. 50 In short, the Chancery Court was established rather as a Court based on the precepts of Religion than as a Court based on the rules of Law. 51 It is unquestionably true that the harshness of the common law, its unfitness to cope with fraud, its incapacity to do justice in many cases, the defects in its remedies, the opportunities it gave the strong to oppress the weak, and its general inadequacy to meet the requirements of equity, greatly contributed to perpetuate the existence of the Chancery Court, and to enlarge and justify its Nevertheless, the vital principle from which the Court sprung jurisdiction. was the prerogative doctrine that the King was the "fountain of justice ;" and that, when a citizen could not get justice in the ordinary Courts, he might come to this fountain. 52 The King, in administering justice in such cases, deemed himself above all the laws and customs of his realm, and bound only by his conscience and his will. As it was not a matter of right in a citizen to draw on this reserve source of justice, when remedy was given it was deemed "granted as of Grace." 53 Other Causes Contributing to the Establishment of the Chancery Court. § 9. As the Chancery was the office out. of which all writs at common law issued, the Chancellor retained cases for his own disposition when the facts were such that no common law writ was adapted to the requirements of the case, or when the common law Courts were unable to furnish adequate relief and some contend that herein originated the extraordinary jurisdiction of the Chancellor. In this class of cases, the Chancellor determined the matters in dispute, so that the court of the King might not be deficient in doing justice. 54 But it is ; ; ; ; — ; — ; believed that the equitable jurisdiction of the Chancellor originated mainly, 36 37 38 39 40 Code, Code, Code, Code, Code, § 3231. § 3243 a. §§ 3323-3340; 3708-3719. 3455. This was writ of ne exeat in Equity. love, 2 Yerg., 516. 41 Code, §§ 3620-3635. 4i' Code, §§ 3648-3664. " "~rie. 88 3836-3870. 44 Code, §§ 3813 a. 45 Code, § §§ 3876-3885. if Code, §§ 3901-3906. 47 Code, §§ 3907-3908. 48 1 Sto. Eq. Jur., §§ 16-17. 46 §§ 3262-3322. a substitute for the See Cox v. Breed- Me 49 By Kings reign, and princes decree justice. Proverbs, 8:15. 50 1 Pom. Eq. Jur., § 35; 1 Sto. Eq. Jur., § 21. 51 1 Pom. Eq. Jur., § 55. 52 Bisph. Pr. Eq., § 7; 1 Pom. Eq. Jur., §§ 33-37 53 i Pom. Eq. §44. 54 1 Sto. Jur., Eq. Jur., §§32-35; 1 Sto. Eq. §§ 43-44, Jur., § 9 ORIGIN AND EVOLUTION OP EQUITY. 6 not exclusively, from the reference to him by the King of petitions for justice and redress, as already stated. BB It is unquestionably true, however, that, had it not been for the deficiencies of the common law, the number of these petitions to the King would have been comparatively few. When the lay Chancellors succeeded the ecclesiastics, no material changes were made in the jurisdiction of the Court. Its system of jurisprudence was, however, enlarged and made more comprehensive, precedents were more closely followed, and the decisions of the Chancellors more carefully preserved. But the equitable principles of the civil law were as fully enforced, and the peculiar proofs and practice of the Court in all things continued, the lay Chancellors being greatly aided herein by the Masters in Equity, who were permanent officers of the Court. 66 Thus was established the High Court of Chancery of England; and thus originated that grand system of jurisprudence known as Equity; both maintaining their existence by virtue, alone, of their inherent merits, and their wonderful fitness for the purposes of administrative justice. 57 It may be well here to remark that, by an Act of the British Parliament, which went into operation in 1875, all the great Courts of England, including the High Court of Chancery, were consolidated, and a system of pleading and practice adopted similar to those in use in Chancery. The Act of Parliament also provides that "in all matters in which there is any conflict or variance between the rules of Equity and the rules of the common law, with reference to the same matter, the rules And thus in England the triumph of the righteous of Equity shall prevail. principles of Equity over the rules of the common law is complete, and, no doubt, final. 68 1 ' 55 Ibid, §§ 39-50; 1 Pom. Eq. Jur., §§ 33-35. 56 1 Spence Eq. Jur., §§ 712-713. It will be seen from this review that Equity may be defined to be that system of jurisprudence, based on good reason, good conscience, and the Civil Law, introduced and developed by the Chancellors of England, by authority of the King and acquiescence of the Parliament, to do justice where justice was denied by the common more perfect justice than could be done through the common law. 57 And under its beneficent influence the common law has become so transfigured that it no more resembles the common law of Coke than the image of Moloch stained with the blood of butchered babes resembles the living Jesus blessing the little children of Judsea. 58 Bisph. Pr. Eq., §§ 1; 11; 1 Pom., Eq. Jur., law, or to do § 12. HISTORY OF OUR CHANCERY COURTS. §10 ARTICLE II. THE HISTORY OF THE CHANCERY COURTS OF TENNESSEE. 10. The Chancery Court 11. Introduction of Courts of Equity into Tennessee. 12. Development of our Chancery Courts. of North Carolina. § § § 13. How our Chancery Courts were Finally- Established. 14. Growth of the Court in Public Favor. Pleadings, and 15. Equity Jurisprudence, Practice, in Other States. — The Chancery Court of North Carolina. "When North Carolina was § 10. colonized by the English, they brought with them, as part of their jurisprudence, the principles and practice of the English Court of Chancery, and incorporated them into their judicial system. As early as 1713, we find a Court of Chancery in existence in North Carolina; and it is safe to say that this Court was coeval with the first legal institutions of the colony. The Court of Chancery is referred to in the Acts of 1720, ch. 6 of 1723, ch. 10 of 1746, ch. 2 of 1748, ch. 2 and of 1762, ch. 5. The court thus established by the Lords Proprietors of North Carolina, under the general power given them by the Charter of King Charles II, was similar to the Chancery Court, of England, and was. held by the Governor and Council. 1 This court continued until the outbreak of the American Revolution but no provision having been made for its re-establishment under the State authority, it ceased to exist, for a few years the struggle for Independence and the conflict of armies absorbing public attention. The people of North Carolina, however, in their Constitution of 1776, expressly provided for Courts of Equity, 2 and thus recognized the jurisprudence administered by the Chancery Court as a fundamental part of the law of the new State. Although no Court of Chancery was established, equitable rights continued to exist, notwithstanding; 3 and in 1782 the people discovered, and through their Legislature solemnly declared, that "the Courts of law were not equal to the redress of all kinds of injuries, that many innocent men were withheld of their rights, and some deprived of them, altogether, for want of a Court or Courts of Equity."* It was ; ; ; ; ; — 1 Griffin v. Graham, 1 Hawks N. C. Rep. 97, Green v. Allen, 5 Hum., 235. The decree in the case of William Duckinfleld v. John Arderne's heirs, pronounced May 13, 1713, is probably the most ancient memorial of the Chancery Court of North Carolina in existence. 2 Rev. Stats, of N. C. (by Iredell & Battle,) 528. This decree was confirmed in August, 1720, by Iredell's Laws of the Provincial Legislature. N. C. 36. In Locke's Fundamental Constitu- 132; tions of North Carolina, made in 1669, it was provided that: "§35, The Chancellor's Court, consisting of one of the Proprietors and his six councellors, who shall be called vice-Chancellors, shall have the custody of the seal of the Palatine. * * To this Court, also, belong Iredell & Battle's all invasions of conscience." Rev. Stats, of N. C, 454. 2 Const, of North Carolina, §§13; 21; 29. The meaning of the term "Equity" was not defined. The Constitution assumed that it was known, as in case of other words used without definition; and we are, therefore, to look to the ju- risprudence then in existence for a proper understanding of the term. Franklin v. Armfield, 2 Sneed. 353. 1 Hawks, 132. The 1st ch. 11, § 1. Graham, 3 Griffin v. i Acts of 1782, and 2nd sections of this Act are as follows: I. "Whereas the Courts of Law as at present established, are not equal to the redress of all kinds of injuries, but many innocent men are withheld of their rights, and some deprived of them altogether, for want of a Court or Courts of Equity. II. "Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that from and after the expiration of the present session of the General Assembly, each Superior Court of Law in this State shall also be, and act as, a Court of Equity for the same district, and possess all the powers and authorities, within the same, that the Court of Chancery which was formerly held in this State under the late Government used and exercised, and that are properly and rightfully incident to such a court, agreeable to the laws in force in this State, and not inconsistent with our present Constitution." This statute also made the Courts of Equity courts of record. Hayw. & Cobb, 173. It will thus be seen that the Courts of Equity of North Carolina, established in 1782, were Courts of general Equity jurisdiction. This was not only so declared by the statute referred to, but was also a necessary implication from the language of the Constitution itself. And from the date of that Act down to the cession of Tennessee to the United States, the powers and jurisdiction of the Courts of Equity HISTORY OF OUR CHANCERY COURTS. §11 8 accordingly enacted in that year by the Legislature of North Carolina that each of the Superior Courts of Law should also be Courts of Equity, and possess all the powers and authorities formerly held by the Court of Chancery under the Colonial government, and that were properly and rightfully incident to such a Court, and not inconsistent with the laws and Constitution of the State. 5 This Act prescribed a procedure for the Court, and granted subpcena, and such process to enforce decrees as belonged to Courts of Chancery. All matters of fact were triable by jury, as in suits at Law; costs were to be paid by either party at the discretion of the Court the proceedings of the Court were to be kept distinct from those of the Law Court and it was expressly declared that the Court should be " a Court of record. 6 The English Court of Chancery was not a Court of record, and the statement in some of our reports that "by our Acts of 1787 and 1801, our Court of Equity is a Court of record," 7 while true, ignores the previous Act of 1782. Introduction of Courts of Equity into Tennes&ee. When counties § 11. were created in the territory now Tennessee, by the Legislature of North Carolina, they were at first made parts of adjoining Judicial Districts in that State but in 1784, the counties of Washington, Sullivan, Greene and Davidson were constituted a separate Judicial District, and named the District of Washington. This District covered the whole of the territory now Tennessee but, in the following year, Davidson county was given a separate Court. The Courts thus established in this territory by North Carolina, were vested with general jurisdiction in Law and Equity. 8 In 1787, the two-fold Court of Law and Equity was divided, and it was enacted that the Chancery branch of the Court should be styled the "Court of Equity;" and a "Clerk and Master in Equity" was appointed for each Court of Equity. But both Courts continued to be held by the same Judge. This Act authorized publication as to non-resident and absconding defendants; and provided that executions to enforce money decrees might issue as at law, instead of the then mode of enforcing money decrees by "attachment, habeas * corpus, attachment with proclamation, and commissions of rebellion." 9 In 1790,. the territory now Tennessee was deeded to the United States by North Carolina; and the Act and Deed of Cession provided that "the laws of North Carolina should continue in full force within the territory until repealed, or otherwise altered, by the legislative authority of the territory." In 1793, by an ordinance of William Blount, Territorial Governor, the counties of Knox and Jefferson were formed into a Judicial District, called the District of Hamilton, and the Courts of Law and Equity therein were ordered lo be held at Knoxville. 10 The first session of the 1st Territorial Legislature met in Knoxville in 1794; and the first Act passed by it declared that the North Carolina Act giving Equity jurisdiction to the Superior Courts of Law should be in full force and effect. 11 This same Legislature created the Judicial Districts of Washington, Hamilton and Mero, and vested in the Courts thereof the general Equity jurisdiction conferred by the Act of 1782; and thus the peculiar powers, pleadings, proofs and practice of the Chancery Court were formally made a part of the jurisprudence of the new Territory. 12 The Development of our- Chancery Courts. In 1796, this system of § 12. Equity jurisprudence was incorporated into the Constitution of the new State, 13 and thus imbedded in the very foundations of the government. In 1801, an Act was passed to regulate the proceedings of the Court of Equity: this Act pre; ; ' ' — ; ; • — of North Carolina were, in and for their respective districts, identical in kind and commensurate in extent with the powers and jurisdiction of the English Court of Chancery at the time of the American Revolution. 5 1 Scott's Rev., 261. 6 1 Scott's Rev., 264. 7 Carson v. Richardson, 3 Hay., 231. 8 1 Scott's Rev., 328; 350. 9 1 10 1 n1 Scott's Rev., 389. Scott's Rev., 454. Scott's Rev., 484. The North Carolina statute referred to was the famous Act of 1782, (Ch. 11.) above mentioned, establishing Courts of Equity. 12 1 Scott's Rev., 457-484. 13 Art. V, §§ 1, 2. : HISTORY OF OUR CHANCERY COURTS. 9 § 13 scribesj in detail, the practice of the court; and a large proportion of the provisions of the Act are in force today. Among the changes made in the practice by this Act was the power conferred on the Chancery Court to divest title to land, instead of requiring parties to convey, as had hitherto been the practice. 14 In 1809, the Superior Courts of Law and Equity were abolished, and Circuit Courts established in their stead, and invested with all of their powers and jurisdiction both at common law and in Equity. 15 A Supreme Court of Errors and Appeals was created by the same statute, to be composed of two Supreme Judges and one of the Circuit Judges. By the Act of 1811, 10 this Supreme Court was given "exclusive jurisdiction in all Equity causes arising in the Circuit Courts," and either party was given the right to take depositions. Previous to this Act, the evidence in Equity suits was generally oral. The Act of 1811, repealed so much of the Act of 1809 as authorized Circuit Judges to sit with the Supreme Judges. 17 In 1813, the Circuit Judges were given concurrent jurisdiction with the Supreme Court in all Equity causes, and the Circuit clerks were made Clerks find Masters in Equity. 18 In 1817, it was provided that Equity causes, wherein a Circuit Judge was incompetent, might be adjourned to the Supreme Court, and there heard on the original papers, as though brought there originally. 19 In 1819, the old practice allowing witnesses to give oral evidence in Chancery suits, and the law compelling their attendance, were repealed; and it was enacted that depositions should be taken in all Chancery cases. 20 In this Act, " the Circuit Courts sitting in Equity causes, are styled ".Courts of Chancery. 21 In 1822, it was enacted that the Chancery Courts should be held by one of the Judges of the Supreme Court and in 1824, a Chancery Court was required to be held twice a year in each circuit. Finally in 1827, the laws giving the Supreme Judges original Chancery jtirisdiction were repealed, and two ChanAt the same time the cellors were appointed to hold the Chancery Courts. State was laid off into two Chancery Divisions, the Eastern and the Western, with one Chancellor for each. The Chancellors were declared to be Chancellors for the State, and were given authority to interchange. 22 How our Chancery Courts were Finally Established. In 1834, a new § 13. Constitution was formed, which recognized "the several Courts of Equity" as part of the judicial power of the State, and authorized the establishment of Courts of Chancery, and the appointment of Chancellors and Clerks and MasThis Constitution continued all laws and ordinances then in force and ters. 23 ; — 24 The first Legislature under this Constitution use, until altered or repealed. increased the number of Chancellors to three, and vested them with "the same powers, privileges and jurisdiction in all respects that the Chancellors then had by existing laws, and that were properly and rightfully incident to a Court of Chancery, agreeably to the laws then in force in the State, not incon26 This statute, in substance, re-enacts the sistent with the Constitution." is in force today. 26 and of 1782; North Carolina Act The number of Chancellors was increased to three by the same statute, and a Middle Division established. The Act required Chancellors to make rules ' with a view to the attainment of the following improvements in the practice ' 14 1 Scott's Yerg., 534. is 1 Scott's 10 Ch. 72, § 17 2 Scott's is 2 Scott's 19 Ibid, 361. Rev., 685; Dibrell v. Eastland, 3 Rev., 1148. 4. Rev., 36. Rev., 146. And we learn from Dibrell instead of a transcript as now. Car. & Nich., 220. 20 2 Scott's Rev., 485; Hardin v. Stanly, 3 Yerg., 381. 21 2 Scott's Rev., 485. 22 1 Cobb, 175. 23 Art. VI, §§ 3, 13. 24 Art. XI, § 1. 25 Acts of 1835, ch. 4. 20 Code, § 4279. Whenever the Code is re- Hay & v. Eastland, 3 Yerg., 535, that, in 1832, this law was then in force. By the Act of 1822, ch. 14, on an appeal to th