Chancery attained more extensive jurisdiction, and exercised more diversified powers, new modes of pro formed into what they called articuli; and upon these articuli interrogatories were framed, to be exhibited to the witnesses. But the witnesses were not obliged to answer any interrogatory, which was not framed out of one of the articles. Upon these interrogatories, one of the judices dati himself examined ; and the depositions were taken in writing by a notary, or one of the judge's clerks. When all the witnesses were examined, both for the actor and reus, then they published the depositions, and gave out copies of them to both parties ; upon which the jurisperiti et patroni made the orations for their clients before the judges, and then the judges pronounced their sentence, which was given to the prætor to be executed. “But, to describe this more fully, though according to the ancient form, any Roman, who had a demand against another, might drag him to justice, obtorto collo, as they called it; yet that being found inconvenient, they came to a new method, which was, that they should first edere actionem before the prætor; and then the prætor gave him out his proper action, and a liberty to cite the party, and he either cited him by himself, or by a messenger; and then the defendant was either obliged to go along with his adversary, or give security to appear; and if he did neither, the actor might obtorto collo force him before the prætor. When the reus came in before the prætor, the actor did produce his cause of complaint, which was sometimes called the second libel ; for the first libel was in order to obtain the power of citing, and was called the libellus supplex; and the second, to show the reus, what he was to answer, was called the libellus actionis aut meritorius; and then the actor asked of the prætor potestatem agendi, that is, the power to implead the defendant, and formulam, containing the form of the action, and judicem, who was to hear and determine the matter. “And, for that end, the actor did summarily show before the prætor, how the action accrued ; and, if it was founded on any instrument, he produced it; if not, a witness before the prætor. He, likewise, the reus, proposed his exceptions, either declinatoriæ, also called dilatoria, or peremptoriæ; though the peremptoriæ might also be put in before the judge. And thus the cause agebatur summatim, as they call it, and the prætor determined, whether they should proceed in judgment or not. If the prætor adjudged they were to proceed, then the reus was either to yield, or give up the matter in demand, or contest it, which was the litis contestatio, and was closed before the prætor. “When the prætor had given a judge, he was to make out a citation against the reus to appear before him, and there the first act was, for the defendant to answer the positions on the libel. After those positions were answered, the next citation was upon the articles, upon which the defendant was to bring in his cross interrogatories to the witnesses, who ceeding were from time to time adopted, which were better fitted for its own peculiar purposes ; and the pleadings and practice in Chancery have now become a distinct and independent system. § 15. Before we proceed further in the consideration of this subject, it may be well to take notice of the different kinds of Bills, as the rules applicable to the frame of Bills in general are necessarily subject to many exceptions and modifications, when they are were to be examined on the part of the plaintiff upon the articles, as likewise any witnesses of his own, which he had to produce on the matter of the articles. And at that act there was given a probatory term, within which all witnesses were to be examined, and the depositions afterwards to be published. One of the judges, who was to hear the cause, was one of the persons, who examined the witnesses, and reported as to their credit, as, whether they answered truly, or only as they were instructed. The third act was the citation after the probatory term was over, and publication had passed, in order to hear judgment; so that, in every judiciary act, there was need of a citation, lest they should proceed, P parte inauditâ, which they thought to be unjust, and contrary to the law of nature." Again : " And the modern libel of the canonists is formed from the libel, the positions, and the articles thrown into one, and now called libellus articulatus, for despatch ; for so many acts are not now necessary, as were of old, when the litis contestatio was before the prætor, and the positions and articles before the judge. And in this libel they conclude with clausule salutares sive salvantes, which pray relief omni meliori modo. To this libel, if the defendant puts in a negative answer, that is now reckoned a sufficient litis contestatio to proceed to proof upon ; though, anciently, the manner was for the plaintiff to come in, and briefly affirm his libel, by way of replication. ** With us the bill is the libel, and the prayer of general relief, according to equity and good conscience, is in nature of the salutary clause, and the narrative part of the bill is in the nature of the positions, and the interrogatory part, in the nature of the articles, and the prayer of relief is after the manner of the ancient libel.” Mr. Brown, in his work on the Civil and Adm. Law (2 Bro. Civ. and Adm. Law, ch. 8, p. 347, &c.), has traced out some of the coincidences between the proceedings in the Civil Law and in Equity, and shown, that some of the rules of the latter, which would otherwise seem merely arbitrary, are founded upon the natural course of practice under the former. applied to the peculiarities belonging to certain kinds of Bills. § 16. The most general division of Bills is into those, which are original, and those, which are not original. Original Bills are those, which relate to some matter, not before litigated in the Court by the same persons, standing in the same interests.' Bills not original are those, which relate to some matter already litigated in the Court by the same persons, and which are either an addition to, or a continuance of an original Bill, or both. There is another class of Bills, which is of a mixed nature, and sometimes partakes of the character of both of the others. Thus, for example, Bills brought for the purpose of cross litigation, or of controverting, or suspending, or reversing some decree or order of the Court, or of obtaining the benefit of a former decree, or of carrying it into execution, are not considered as strictly a continuance of the former Bill, but in the nature of original Bills. And, if these Bills require new facts to be stated, or new parties to be brought before the Court, they are so far strictly of the nature of supplemental Bills. For all the objects of the present work, this last class may be treated as included in that of Bills not original.5 § 17. Original Bills may be again divided into those, which pray relief, and those, which do not pray relief. In a broad and general sense, all Bills in Equity may be said to pray relief, since they seek the 1 Mitf. Eq. Pl. by Jeremy, 33; Cooper, Eq. Pl. 43. 2 Ibid. 3 Mitf. Eq. Pl. by Jeremy, 33; Cooper, Eq. Pl. 44, 62. 4 Mitf. Eq. Pl. by Jeremy, 96, 97 ; Cooper, Eq. Pl. 100. 5 Lord Redesdale has treated this class separately. Mr. Cooper has treated it as belonging to the class of Bills not original. Mitf. Eq. Pl. by Jeremy, 33, 35, 80; Cooper, Eq. Pl. 62. 6 Mitf. Eq. Pl. by Jeremy, 34 ; Cooper, Eq. Pl. 43, 44. aid of the Court, by some decree or decretal order, to remedy some existing or apprehended wrong or injury. But in the sense, in which the words are used in Courts of Equity, such Bills only are deemed Bills for relief, as seek from the Court in that very suit a decision upon the whole merits of the case set forth by the plaintiff, and a decree, which shall ascertain and protect present rights, or redress present wrongs. All other Bills, which merely ask the aid of the Court against possible future injury, or to support or defend a suit in another Court of ordinary jurisdiction, are deemed Bills not for relief. And this distinction is not merely formal ; but, as we shall presently see, may involve very important consequences ; for, if a plaintiff should by mistake ask for relief, when he is not entitled to it, his Bill may be demurrable, and thereby be, for the purposes of jurisdiction, unmaintainable." § 18. Original Bills praying for relief may be again divided into three kinds. (1.) Bills praying the decree or order of the Court, touching some right claimed by the party exhibiting the Bill, in opposition to some right, real or supposed, claimed by the party, against whom the Bill is exhibited, or touching some wrong done in violation of the plaintiff's right. This is the most common kind of Bill. (2.) Bills of Interpleader, where the person exhibiting the Bill claims no right in opposition to the rights claimed by the persons, against whom the Bill is exhibited, but prays the decree of the Court, touching the rights of those per 1 See Mitf. Eq. Pl. by Jeremy, 33, 34 ; Cooper, Eq. Pl. 43, 44. 3 sons, for the safety of the person exhibiting the Bill. (3.) Bills of Certiorari, which pray a writ of certiorari, in order to remove a cause from an inferior Court of Equity, for the purpose of having it further proceeded in, and decided in the superior Court of Equity, to which the process is returnable. This last Bill is of rare (if any) use in America, and is not of very frequent occurrence in England. § 19. Original Bills, not praying relief, are of two kinds. (1.) Bills to perpetuate the testimony of witnesses, or to examine witnesses de bene esse. (2.) Bills of discovery, technically so called; that is to say, Bills for the discovery of facts resting within the knowledge of the party, against whom they are exhibited, or of deeds, writings, or other things, in his custody or power. Of each of these different species of original Bills we shall treat more at large hereafter. § 20. Bills not original (as we have seen) are either (1.) an addition to, or a continuance of, an original Bill; · or (2.) they are for the purpose of cross litigation, or of controverting, or suspending, or reversing some decree or order of the Court, or carrying it into execution. Of the former kind are, (1.) A Supplemental Bill, which is merely an addition to the original Bill, to supply some defect in its frame or structure. · (2.) A Bill of Revivor, which is a continuance of the original Bill, to bring some new party before the Court, when, by death or otherwise, the original party has become incapable of prosecuting or defending the suit, 1 Mitf. Eq. Pl. by Jeremy, 34, 48; Cooper, Eq. Pl. 43, 45; Wyatt, Pr. Reg. 78. 2 Mitf. Eq. Pl. by Jeremy, 34, 50; Cooper, Eq. Pl. 44, 50; Wyatt, Pr. Reg. 101. 3 Mitf. Eq. Pl. by Jeremy, 34, 51 ; Cooper, Eq. Pl. 14, 52, 57, 58. |