recognizes chancery jurisdiction. Besides, we shall see hereafter, that this court has the power to direct an issue to be made up for a jury, whenever a question arises to render it expedient. 4. When we come to describe the manner in which the parties present their case before the court, and the manner in which the court, by their decree, so shape the remedy as exactly to meet all the circumstances of the case, we shall find a still more striking difference between equity and law; and we shall cease to wonder that the two jurisdictions are kept entirely distinct. It will then be manifest, that the great object of equity is to supply the manifold deficiencies of law, and that it is admirably adapted to effect this object, as well on account of the flexibility of its forms, as of its almost entire freedom from the fetters of technicality. But a discussion of these matters would now be premature.

In several of the States, as Pennsylvania and Massachusetts, the general chancery system is not adopted. (a) But even there necessity has required some special chancery powers to be conferred on the courts of law, without which the administration of justice would be hardly tolerable. Perhaps the erroneous notion already pointed out, respecting the arbitrary nature of chancery power, has been the cause of this jealous policy. Again, in several other States, as New York and Virginia, the English chancery system is adopted in almost every particular; and full chancery powers are conferred on a single chancellor, who has no common-law jurisdiction. But the constitutions of the United States and of this State adopt a sort of middle course. They admit the existence of chancery powers in their full extent; but instead of creating distinct tribunals to administer them, they require these powers to be conferred, if conferred at all, upon the same tribunals which administer the law. Thus, the same persons officiate both as chancellors and judges; but their modes of proceeding in the two capacities are kept as entirely distinct, as if controlled by different persons. There being a general similarity between these two systems, I shall confine my remarks to the system adopted here. In fact, the principles and practice of equity are nearly the same, wherever it has been adopted; since all systems are copied from the same original; namely, the English chancery system.

By the terms of our constitution, as we have seen, the judicial power" both as to matters of law and equity," is vested in the same courts who are to have "common law and chancery jurisdiction in all cases as shall be directed by law." This language establishes two points: first, that equity may or may not be a part of our judicial system, at the option of the legislature; but if adopted, it must be administered by the same tribunals which administer the law; and secondly, that our legislature is left entirely free, either to adopt the English chancery doctrines as they are, or to modify them at pleasure. To understand, then, the nature and

(a) Full equity powers have been conferred in Massachusetts on the supreme judicial court.

extent of our equity jurisdiction, we must see what the legislature has actually done; and on referring to the statutes, we find two sets of provisions relating to equity jurisdiction. The first set of provisions merely apportions this jurisdiction between the supreme court and the court of common pleas, according to the value in dispute. In general, if this value be between one hundred and one thousand dollars, proceedings must be commenced originally in the common pleas, but may be carried by appeal to the supreme court; but if it exceed one thousand dollars, proceedings may be commenced indifferently in either court. In the single case of injunction, to stay proceedings at law, the common pleas may descend to twenty dollars, and the supreme court to one hundred; and in questions relating to land, either court may exercise original jurisdiction without regard to value. The other set of provisions is designed to fix the limits of chancery jurisdiction, with reference to the subject-matter. This jurisdiction is declared to extend to "all cases properly cognizable by a court of chancery, in which a plain, adequate, and complete remedy cannot be had at law: " and in exercising it, the courts are required "in all things to be governed by the known usages of courts of equity, except where it may be otherwise provided by law." The effect, therefore, of these provisions is, to adopt the English equity system as our own, except where the legislature otherwise directs; and it follows that in order to determine whether a given case is within our chancery jurisdiction, the two following points are to be considered: 1. Is there a plain, adequate, and complete remedy at law? For, equity, as we have said before, is intended only to be subsidiary to law, to supply its deficiencies, and help out its designs. It is neither above law, nor opposed to it. Both are designed to promote the great ends of justice, by the application of established rules. When the law is insufficient, equity steps in; but then only. If, therefore, the law furnishes no remedy, or only a doubtful or inadequate one, we have the first requisite for chancery jurisdiction. 2. Is there any authority either in the statutes or precedents, for entertaining jurisdiction in the given case? For the question must be "properly cognizable by a court of chancery," and one, in deciding which the "known usages" of that court can be followed. Without this restriction, chancery powers would be, as they have been sometimes represented, perfectly arbitrary, and therefore unfit for freemen; but with it they are sufficiently guarded. The proper rule is this: if a case be entirely new in principle, the court cannot decide it until the legislature gives authority; for this would be usurping legislative power. But when a case is only new in the particular instance, and can be brought within an established principle, by clear expression or analogy, then jurisdiction may be taken. Such, then, are the two predicates of chancery jurisdiction; namely, the absence of a sufficient legal remedy, and the existence of an authority to meet the case. To determine the first, we must know what remedies the law

furnishes; and to determine the second, we must consult the statutes and reports. Thus you will observe that a knowledge of equity presupposes a knowledge of law; and this fact justifies the vesting of the two jurisdictions in the same persons.

The general sources of information to which you are referred are: 1. Our statute directing the mode of proceeding in chancery. 2. Rules of court made in pursuance of the statutory provision. Without such provision, however, courts have the inherent power of making rules for the convenience and despatch of business, not inconsistent with the existing law; which rules become the law of the court, and have the same authority as if made by the legislature. These rules are either general or special. General rules are those which apply to all cases coming within them; special rules are those adopted for particular cases. General rules are entered upon the journals of the court, and stand for law until rescinded. The general rules of the supreme court run through the State, and are binding upon the common pleas. Those of the common pleas extend only through the circuit in which they are made. Special rules are only obtained on motion of the party desiring them, and expire with the occasion. Our statutory provisions and rules taken together, modify materially those "known usages" of courts of chancery, which would otherwise govern our practice. 3. The "known usages" of courts of chancery, not affected by our statutes and rules. These are to be gathered from the books on equity before referred to, which are themselves framed upon the reported decisions.

§ 218. Bill. We are now prepared to consider the commencement and progress of a suit in chancery. Our statute declares that all applications to the chancery side of the courts shall be by petition, setting forth the nature and grounds of the complaint; which petition shall be filed in the clerk's office. This petition is commonly called a bill, and the filing of it is the first step in every chancery suit. I shall give a general description of its form and contents. In England, bills are drawn with extreme formality and redundancy. The books divide a bill into nine distinct parts, so framed as to tell the story two or three times over; and each time with all the expletives and tautologies which ingenuity can devise. The reason is, that such service is there paid for according to the number of words. Nor are we wholly exempt from the like abuse in this country; but the profession are beginning to improve in this respect, particularly in this State; and to content themselves with telling their story once in a plain and concise manner. In fact, the only important divisions of a bill are three; namely, the address, the statement, and the prayer.(a) 1. The address merely designates

(a) Form of a Bill. To explain more fully the nature of a bill, and show the difference between ancient and modern practice, I shall take the case of a bill to enforce the payment of a legacy, and give its form, first, as divided into nine parts, and then its form as it may be abridged.

1. The Address. To the honorable the judges of the court of chancery, within and for the county of -, and State of

sitting in

the court to which the application is made. 2. The statement must contain a clear and explicit exhibition of the plaintiff's case.

3. The Premises. That

In

2. The Introduction. Humbly complaining sheweth unto your honors, your orator, of the county aforesaid. of the county aforesaid, being seised and possessed of a large real and personal estate, on or about the, did duly make and publish his last will and testament in writing, and thereby, amongst other things, did devise and bequeath to your orator the sum of $- -, by the words following, to wit, [here set forth the words,] as by reference to said will, a copy of which is herewith exhibited as part of this bill, will more fully appear; and that the said testator departed this life on or about the and that on or about the one -, named as executor in the said will, caused the same to be duly proved, and took upon himself the execution thereof, and took possession of the said real and personal property; and that since the same legacy became due and payable to your orator, he has frequently requested the said executor to pay the same, and had well hoped that he would have complied with such request, as in conscience and equity he ought to have done.

4. The Confederacy. But now, so it is, may it please your honors, that the said executor, combining and confederating with divers persons as yet unknown to your orator, but whom, when known, he prays to have made defendants with proper words to charge them with the premises, in order to oppress and injure your orator, does absolutely refuse to pay to your orator the said legacy or any part thereof; and for reason of such refusal, the said confederates sometimes pretend that the said testator made no such will, and at other times that his real and personal estate was not suffi cient to pay his debts; and at the same time the said confederates refused to discover and set forth what such real and personal estate really was, or its value, or how the same has been disposed of.

5. The Charging Part. Whereas your orator charges the truth to be, that the said real and personal estate was of the value of $, as he is informed and believes; and that it was more than sufficient to pay all the debts of the said testator, and the legacies mentioned in the said will; and that the said confederates, or one of them, have converted the same to their own use, without satisfying your orator for his said legacy; all which pretences and doings are contrary to equity and good conscience and tend to the manifest injury of your orator.

6. The Jurisdiction Part. In tender consideration whereof, and for that your orator is remediless in the premises by the strict rules of the common law, and relievable only in a court of equity, where matters of this sort are properly cognizable.

7. The Interrogatory Part. To the end, therefore, that the said confederates may respectively full, true, direct, and perfect answers make, upon their respective corporal oaths, according to the best of their knowledge, information, or belief, to all and singular the matters aforesaid, as fully, in every respect, as if the same were here again repeated; and more especially that they discover and set forth whether the said testator did duly make and execute such a last will and testament as before stated; and did thereby bequeath to your orator such legacy as aforesaid; and that they produce the said will with the probate thereof; and that they state when the said testator died, and who caused the said will to be proved, and undertook the execution thereof; and whether the said legacy has not become due and payable to your orator; and whether he has not requested payment of the same and been refused upon the pretences aforesaid; and that they may discover and set forth the real and personal property belonging to the testator, and its value, and whether the same was not sufficient to pay all the debts and legacies aforesaid, and what has become of the same.

8. The Prayer for Relief. And that the said confederates may be compelled by a decree of this honorable court to pay to your orator his said legacy of $, with interest thereon since the same was due, and that your orator may have such other and further relief in the premises as the nature of the case shall require, aud as to your honors shall seem meet.

9. The Prayer for Process. May it please your honors to grant unto your orator the most gracious writ of subpoena, to be directed to the said -, executor, as aforesaid, and the rest of the confederates when discovered, commanding them on a certain day and under a certain penalty therein specified, personally to appear before your honors, and then and there to answer all and singular the premises aforesaid, and abide such order and decree as your honors shall make; and your orator, as in duty bound, will ever pray, &c.

setting it forth, aim first of all at precision, avoiding equally redundancy and ambiguity; and bear this constantly in mind, that the sole object of the bill is to make known the facts material to your claim. The evidence of those facts, and the conclusions of law arising from them, would be out of place. The court wish only to be informed what the facts are; and common sense is the best guide in narrating them. In averring numbers, it is safer to use words than figures, but this is not indispensable. Abbreviations are to be avoided, because they may not be rightly understood. If your case be connected with written instruments, the better practice is to state in the bill only so much of their substance as is necessary to make the case intelligible; and to annex copies thereof by way of exhibits. I say copies, because prudence dictates the retention of the originals, until the final determination of the cause, when they must of course be produced. You are at liberty, indeed, to copy them out in full in the body of the bill; but it will be seen at once that your case cannot then be so quickly understood as from a judicious abstract. 3. The prayer forms the concluding part of the bill; for in obedience to ancient usage, as before explained, you approach the court in the language, not of demand, but of supplication. The prayer usually includes the four following matters, namely: 1. That all persons supposed to be interested may be made defendants, and that a subpoena may issue accordingly. It is convenient, though not essential, to name all the defendants together in this clause, though they may have been mentioned before, in order that a single glance may ascertain them; and if their names be not known, their relation to the suit should be stated. 2. That the defendants may answer under oath to all the allegations of the bill. This would probably be required without any prayer, being a positive rule of law; but it is customary to insert it. And this

one

one

The above bill would be equally effectual in the abridged form which follows: To the court of —, sitting in chancery, within and for the county of and State of Your petitioner of the county aforesaid, respectfully shows, that on or about the of the county aforesaid, owning a large amount of real and personal property, duly executed his last will and testament, a copy of which is exhibited as part of this bill, and thereby bequeathed to your petitioner a legacy of $, in the words following, to wit: [here set forth the words; that the said testator died on or about the and shortly after, on or about the named in said will as executor, caused the same to be duly proved, and undertook the execution thereof; that the property and effects belonging to the said testator, and taken possession of by the said executor, were more than sufficient to pay all the debts of the said testator and the legacies mentioned in the said will; but the exact description and amount of which your petitioner is unable to state; that since the said legacy has become due and payable to your petitioner, he has often requested the said executor to pay the same, but the said executor has neglected so to do. Being, therefore, without remedy at law, your petitioner prays for relief in chancery; and that a subpoena may issue to the said executor as aforesaid, who is made defendant to this bill, and that the said defendant may answer under oath to all the matters herein alleged; and especially may discover and set forth a copy of the said will and probate, and the nature and value of the property and effects of the testator which came into his hands, and what has become of the same; and that upon a final hearing this court may decree that the said executor pay to your petitioner the legacy of $, so bequeathed to him; and that your petitioner may have such other and further relief as shall seem equitable.