FEDERAL EQUITY PRACTICE. CHAPTER I. JURISDICTION. § 1. Equitable Jurisdiction in General. Equity is that system of jurisprudence which was administered by the High Court of Chancery of England in the exercise of its extraordinary jurisdiction, and which has been amplified and extended by the more modern decisions of the English and American courts. It owed its origin to a desire upon the part of the English sovereigns. and their chancellors to supplement the deficiencies and soften the rigors of the common law; and whereas the well-springs of this were such of the customs of the German tribes as had been brought with them from their Fatherland by the Jutes and Angles; those of that, which was administered at first exclusively by ecclesiastics, are in the canon, which was itself derived from the greatest monument of the genius of ancient Rome, the civil law.3 Since the time of Nottingham, before whom each succeeding chancellor had decided the cases brought before him in accordance with his own notions of what was proper, or in the language of Selden, measured justice out by the length of his foot, the same respect has been paid to precedent in the courts of equity and common law. But the rules regulating the remedies administered by the former are much. more plastic. And even at the present time cases often occur where judges sitting at equity, with the approval and assistance of the profession, invent and adopt new remedies suited to a state of society and of civilization unknown and not anticipated when the procedure in chancery first assumed the form that it still substantially retains. The chronicles of the growth and development of equity abound with names well known to the students, as well of general history as of jurisprudence. Among them Wolsey, More, Bacon, Clarendon, Somers, and Erskine are the most familiar to the former, while the members of the profession look back with especial admiration upon the careers of Nottingham, Hardwicke, Eldon, Westbury, Kent, Story, and Taney. Although originally no one could seek their aid who was not denied justice by the courts of common law; yet after he had once shown a title to their assistance, courts of equity would almost always give a suitor complete relief in the matter about which he complained. And now that since the time of Mansfield the courts of common law have, abandoning their former jealousy, in many instances of their own accord as well as under the compulsion of statutes, accepted doctrines first created by courts of equity, the latter have not felt obliged to relinquish the jurisdiction which they formerly acquired. One of the marked characteristics which distinguish equity from the common law, is that, while the latter, as a general rule, acts against and exercises control over property alone; has but a very limited. and merely incidental power, mostly borrowed from chancery, to enforce obedience to a personal command, its procedure being founded upon the theory that the parties to an action owe no obedience to the court; and is consequently restricted in its operation when the property which is the subject of a contention is beyond the reach of its process: equity acts directly against and exercises complete control over persons, and does not lose jurisdiction when the parties are subject to its process, because the property over which it thereby assumes control is beyond the territory under those laws whence its own power is derived.10 5 Kennedy v. St. Paul & Pacific Railroad Company, 2 Dillon, 448; Wallace v. Loomis, 97 U. S. 146; Joy v. St. Louis, 138 U. S. 1, 50. 61 Fonblanque's Equity, b. i. chap. i. § 3, note (f); Motteux v. The London Assurance Co., 1 Atk. 545; Tayloe v. The Merchants' Fire Ins. Co., 9 How. 390, 405. 7 Moses v. Macferlan, 2 Burrow, 1005; Dickerson v. Colgrove, 100 U. S. 578. 365. 8 Putnam v. New Albany, 4 Bissell, 9 Langdell's Eq. Pl. § 40. 10 Archer v. Preston, 1 Eq. Cas. Ab. 133, pl. 3, cited and followed in Arglasse v. Muschamp, 1 Vernon, 75; s. c. 1 Vernon, 135; Penn v. Lord Baltimore, 1 Vesey Sr. 444; Massie v. Watts, 6 Cranch, 148; Muller v. Dows, 94 U. S. 444, at pages 449-450. The authorities are well collected in a learned opinion by Judge, subsequently Chief Judge, Henry E. Davies, in Gardner v. Ogden, 22 N. Y. 327. Cf. Carpenter v. Strange, 141 U. S. 87, 106; cited infra, § 325. § 2. General Survey of the Jurisdiction of Courts of Equity. The jurisdiction of courts of equity is exercised either for the protection of rights which the common law does not recognize; or for the prevention or redress of wrongs for which the common law affords no adequate remedy. A full consideration of this topic is beyond the scope of this treatise. The following summary, although imperfect, may occasionally assist the reader. The rights which a court of equity alone respects are: the rights of beneficiaries under a trust,1 either express or implied, — which latter term includes those which are resulting 2 or constructive: 3 the right to be relieved from an obligation which has been entered into, or to recover a right which has been lost by accident, which expression is said to include the cases where one has become subject to a penalty or forfeiture, or has lost a document the possession of which was essential to his success in a legal action, and is also often used to bolster up a weak equity of another kind; by mistake, which must be mutual, material, ·;6 — and not caused by the negligence of the party seeking relief, and which, if solely of a point of law, will very rarely release one from his contract obligations-;8 by fraud, whether actual or constuctive; 10 or by duress: 11 and the rights of those who are justly entitled to compel election under a will, or an adjustment of § 2. 1 Sturt v. Mellish, 2 Atk. 610; page 286; Stephenson v. Wilson, 2 New Orleans v. Morris, 105 U. S. 600. 2 Dyer v. Dyer, 2 Cox Eq. Cas. 92; Hoxie v. Carr, 1 Sumner, 187. Vern. 325. 8 Hunt v. Rousmanier's Admrs., 8 Wheaton, 174, 215; s. c. 1 Peters, 1, 14; 3 National Bank v. Insurance Co., Snell v. Insurance Company, 98 U. S. 104 U. S. 54, 64–71. 41 Spence Eq. 629, 630; Bispham's Eq. § 178. Mortgages are included under this head, Mitford's Pl. 118-276; Story's Eq. Jur. § 89. Savannah National Bank v. Haskins, 101 Mass. 370; Donaldson v. Williams, 50 Mo. 408; Story's Eq. Jur. § 84; Bispham's Eq. §§ 176, 177. Story's Eq. Jur. §§ 90-99; Bispham's Eq. §§ 182, 183. Cases where this head of equity is invoked for relief against a defective execution of a power are included here. 7 Bispham's Eq. § 191; Whittemore v. Farrington, 76 N. Y. 452; McFerran v. Taylor, 8 Cranch, 281; Elliott v. Sackett, 108 U. S. 132; Duke of Beaufort v. Neeld, 12 Clark & Finnelly, 248, at 85; Pitcher v. Hennessey, 48 N. Y. 415; Adair v. Brimmer, 74 N. Y. 539; Relief Fire Insurance Co. v. Shaw, 94 U. S. 574; Allen v. Galloway, 30 Fed. R. 466; Cooper v. Phibbs, L. R. 2 H. L. 170; Elliott v. Sacket, 108 U. S. 132, 142. 9 Cobbeltiom v. William, Chan. Cal. II.; Stonehouse v. Starishaw, Chan. Cal. XXIX.; Bief v. Dyer, Chan. Cal. XI.; Bacon v. Bronson, 7 Johns. Ch. (N. Y.) 194; Jones v. Bolles, 9 Wall. 364. 10 Mackreth v. Fox, 4 Bro. P. C. 258; Ex parte Lacey, 6 Ves. 625; Villa v. Rodriguez, 12 Wall. 323, 339. Nicholls v. Nicholls, 1 Atk. 409; Gould v. Okeden, 4 Bro. P. C. 198; Baker v. Morton, 12 Wall. 150. liabilities,12- under which term are included set-off,13 contribution,14 exoneration,15 and marshalling of securities.16 The cases where the jurisdiction of equity is exercised merely for the sake of the remedy are where its interposition is needed to assist in obtaining a judgment at law by compelling a discovery from a defendant, or the perpetuation of the testimony of witnesses, 18 or their examination abroad,19 when it is feared that, on account of death, illness, or absence, they cannot be obliged to attend upon the trial; to satisfy a judgment out of property of a debtor which cannot be reached by an execution; 20 to prevent a threatened breach of a right,21 or compel the performance of a duty,22 the commission or omission of which, respectively, would inflict such an irreparable injury upon a person, that a judgment for damages, or the cumbrous legal process of ejectment, replevin, detinue, or account render, would be no adequate remedy for the loss thereby occasioned; to prevent a needless multiplicity of suits; 23 and to compel the cancellation or execution of instruments,24 the existence or want of which is a cloud upon, or an apparent flaw in a person's title, or would render it difficult for him to resist an unjust demand, or to dispose of property by sale. § 3. Constitutional Provisions affecting the Jurisdiction of the Federal Courts. The Constitution of the United States provides that, "The judicial power" of the United States "shall extend to 12 Arnold v. Kempstead, 1 Ambler, 466; Jones v. Collier, 2 Ambler, 730; Herbert v. Wren, 7 Cranch, 370, 378. 13 Chapman v. Derby, 2 Vern. 117; Lord Lanesborough v. Jones, 1 P. Wms. 325; 2 Story's Equity Jurisprudence, § 1433; Story, J., in Greene v. Darling, 5 Mason, 201, 207-213. 14 Layer v. Nelson, 1 Vern. 456; Howards v. Selden, 5 Federal Reporter, 465, 473. 15 Galton v. Hancock, 2 Atk. 425; Walker v. Jackson, 2 Atk. 625; Bank of U. S. v. Beverly, 1 How. 134, 151. 16 Aldrich v. Cooper, 8 Ves. 394; Trimmer v. Bayne, 9 Ves. 209; 1 Story's Eq. Jur. § 633. 17 Finch v. Finch, 2 Ves. Sr. 492; Moodalay v. Morton, 1 Bro. C. C. 469; Brown v. Swann, 10 Pet. 497, 500: Heath v. Erie Ry., 9 Blatchf. 316. 18 Earl of Suffolk v. Green, 1 Atk. 450; Pearson v. Ward, 1 Cox Eq. 177; Lord Dursley v. Berkeley, 6 Ves. 251. See 19 Moodalay v. Morton, 1 Bro. C.C. 469. 20 Angell v. Draper, 1 Vern. 399; Scottish American Mortgage Co. v. Follansbee, 14 Fed. R. 125. 21 Robinson v. Lord Byron, 1 Bro. C. C. 588: Osborn v. Bank of the United States, 9 Wheat. 738. 22 Stribley v. Hawkie, 3 Atk. 275; Huguenin v. Baseley, 15 Ves. 180; Hunt v. Rousmanier's Admrs., 1 Pet. 1; Willard v. Tayloe, 8 Wall. 557. 23 Freeman v. Pontrell, Chan. Cal. XIII.; Earl of Bath v. Sherwin, 4 Bro. P. C. 373; Woods v. Monroe, 17 Mich. 238; Cummings v. National Bank, 101 U. S. 153; Dodge v. Briggs, 27 Fed. R. 161. 24 Pierce v. Webb & Stalker, note to Ryan v. Mackmath, 3 Bro. C. C. 15: Peake v. Highfield, 1 Russ. 559, and cases cited; Bunce ». Gallagher, 5 Blatchf. C.C. 481; Boyce v. Grundy, 3 Pet. 210. all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of Admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects." But "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."2 "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction," 3 although "such inferior Courts as the Congress may from time to time ordain and establish" may also have original jurisdiction thereof.5 "In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make." In no other cases can it have original jurisdiction." § 4. The Distinction between Law and Equity in the Federal Courts. The fact that those who framed the Constitution thought it necessary to separately mention law and equity, when blocking out the jurisdiction of the Federal courts, has caused many judges to think, and even to say in their opinions, that it was thereby evidently intended that these branches of the law should always be kept apart. The better opinion, however, § 3. 1 The Constitution, art. iii. § 2. 2 Eleventh Amendment to the Constitution. 3 The Constitution, art. iii. § 2. 4 Ib. § 1. 5 Ames v. Kansas, 111 U. S. 449; Börs v. Preston, 111 U. S. 252; United States v. Ravara, 2 Dallas, 297; Gittings v. Crawford, Taney's Decisions, 1; St. Luke's Hospital v. Barclay, 3 Blatchf. 259; Graham v. Stucken, 4 Blatchf. 50. 6 The Constitution, art. iii. § 2. 7 Marbury v. Madison, 1 Cranch, 137; Ex parte Vallandigham, 1 Wall. 243. § 4. Parsons v. Bedford, 3 Pet. 433; Bennett v. Butterworth, 11 How. 669, 674; Hipp v. Babin, 19 How. 271, at page 277; Fenn r. Holme, 21 How. 481, 486; Costs in Civil Cases, 1 Blatchf. C. C. 652, 654; Butler v. Young, 1 Flippin, 276, 278; Meade v. Beale, Taney, 339, at page 361; Thompson v. Railroad Companies, 6 Wall. 134; Reubens v. Joel, 13 N. Y. 488, at page 497. |