about by numerous complaints of the delay and expense caused by the dual system; that is, the distinction between courts of common law and courts of equity. By the statutes of 1873 and subsequent amendments, the courts which had sat so many centuries at Westminster Hall were consolidated into one supreme court, of which chancery became simply a division, while it was provided that equitable relief should in a proper case be administered concurrently by each division, and that in a proper case the principles of equity should prevail over those of the common law.22 The office of vice-chancellor was then abolished, and the courts of chancery are now constituted as follows: the lord chancellor, five lords justices of the court of appeal, besides the master of the rolls (who is a member of this court, and who, when sitting, is the presiding judge, in the absence of the lord chancellor), and six judges of the high court attached to the chancery division. The right of appeal exists from the justices to the lords justices of the court of appeal; from the lords justices, or from the lord chancellor, to the house of lords. The house of lords is the supreme court of appeal. It practically consists of the law lords; that is, the lord chancellor, any ex-lord chancellor, and other judges who have been distinguished by a peerage. In practice, only the law lords sit or participate in the decision of appeals.2

§ 5. Courts of equity in the United States.

23

Equity, as a branch of the law of England, was brought over by the colonists, and found expression in the judicial framework of all the colonies.24 In Pennsylvania, equity jurisprudence was formerly administered through the forms, remedies, and proceedings of the common law, and was thus confused with legal rights and titles in a manner not easily comprehensible elsewhere 25 In many of the colonies, during their connection

22 36 & 37 Vict. c. 66, §§ 24, 25; Kerly, Hist. of Eq. 294.

23 Merwin, Eq. & Eq. Pl. 10, 11.

24 Wilson on Courts of Chancery in America, 18 Am. Law Rev. 226; 1 Story. Eq. Jur. § 58; Wells v. Pierce, 27 N. H. 512; Copp v. Henniker, 55 N. H. 210, 20 Am. Rep. 194; 4 Kent, Comm. p. 163, note (d). 25 1 Story, Eq. Jur. § 58. See article by S. G. Fisher in 1 Law Quart.

with Great Britain, equity jurisprudence either had no existence at all, or a very imperfect and irregular administration. Even after the Revolution it was of slow growth. In the state of New York, equity was scarcely felt in the first general administration of justice until about the period of the Reports of Caines and Johnson.26 The courts and systems of legal procedure of colonial times were generally retained upon the formation of the Union, and for a number of years thereafter. In Louisiana, however, the civil law obtained. In Texas, the abolition of the distinction between actions at law and suits in equity was accomplished in 1840. In New York, the distinction between actions at law and suits in equity was effaced in 1848 by the adoption of the Code of Civil Procedure. At the present time, about two-thirds of all the states and territories have adopted the substantial features of the reformed procedure.27

The states in which the distinction between law and equity is still maintained are Alabama, Delaware, Mississippi, New Jersey, Tennessee, Arkansas, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Mexico, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. In the first five of these states, distinct courts of equity are established. In the others, and in the federal tribunals, whose equity procedure is uniform throughout the United States, and cannot be affected by state legislation, the powers are exercised concurrently with the common-law jurisdiction, by the same tribunal being at once a court of law and a court of equity.28 In the latter group of states, the boundaries between common-law and chancery procedure are jealous

Rev. 455; Torr's Estate, 2 Rawle (Pa.) 250; Laussat's Essay on Equity in Pa. App. (1826); Com. v. Archbald, 195 Pa. 317, 46 Atl. 5.

26 1 Story, Eq. Jur. § 56. See article by S. D. Wilson on Courts of Chancery in America, 18 Am. Law Rev. 226 et seq.

27 11 Am. & Eng. Enc. Law (2d Ed.) 154.

28 1 Story, Eq. Jur. § 58; Bispham, Eq. § 15. In Mississippi the circuit court has chancery and law jurisdiction, the former being limited to cases where the value in controversy does not exceed $500 Henderson v. Herrod, 23 Miss. 434.

ly guarded. When a suit in equity comes before the court, it is conducted and decided strictly according to chancery proceedings, and as if that were the sole jurisdiction which he exercised. The next day he may be presiding in trials before a jury, at common law, but for the time being he is a chancellor, 29

In the states and territories of the Union not herein specifically mentioned, the distinction between actions at law and suits in equity is abolished by the codes and practice acts; but although this has been done, still the principles by which the rights of the parties are to be determined remain unchanged.30

§ 6. Equitable jurisdiction of federal courts.

The equitable jurisdiction of the federal courts, excluding from consideration the territorial courts and the courts of the District of Columbia, is in the supreme court, the circuit courts of appeals, the circuit courts, the district courts, the court of claims, and the court of private land claims.31 The supreme court has original jurisdiction, both at law and equity, in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state is a party.32 In all other cases its jurisdiction is appellate. The jurisdiction of the circuit court of appeals is exclusively appellate.33 The circuit court of the United States is the principal court having original cognizance of suits in equity.34 In certain instances the United States district court has equity jurisdiction.35

29 Merwin, Eq. & Eq. Pl. 12. For practice in Georgia, see MacKenzie v. Flannery, 90 Ga. 590, 16 S. E. 710.

20 Gudger v. Western N. C. R. Co., 21 Fed. 81; Bennett v. Butterworth, 11 How. (U. S.) 669.

31 Foster, Fed. Pr. (3d Ed.) § 13.

32 Foster, Fed. Pr. (3d Ed.) § 14; Rev. St. U. S. § 687.

23 Foster, Fed. Pr. (3d Ed.) § 14a; 26 U. S. Stat. 829, § 12; Rev. St. U. S. § 716.

34 For equity jurisdiction of the federal circuit courts, see Foster, Fed. Pr. (3d Ed.) §§ 15-24; 1 Desty, Fed. Proc. (9th Ed.) §§ 84-95; Act March 3, 1875 (Rev. St. § 629) cls. 1 and 2, as amended March 3, 1887, and corrected August 13, 1888 (25 Stat. 433); 30 Stat. 495, 552,

The federal courts cannot exercise any equity powers, except such as are conferred by an act of congress, and those judicial powers possessed and exercised by the high court of chancery in England at the time of the formation of the constitution of the United States. Powers not judicial, exercised by the English chancellor as the representative of the king's prerogative as parens patriae, are not possessed by the federal courts.36 The rule that the power of the federal courts in regard to equitable rights is to be regulated by the law of the English chancery applies to the remedy, not to the right. The constitution provides only for the form of the remedy; and no federal court, sitting as a court of chancery, can grant a remedy to a complainant who has no right, either under United States laws, or the laws of the state in which he brings suit, even though the right might have been enforced in the English court at the time the constitution was adopted.37 United States Equity Rule 90, providing that, where the rules prescribed by the supreme or circuit courts do not apply, the practice of the circuit courts shall be regulated by the practice of the high court of chancery in England, so far as the same may reasonably be applied, consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice, affects the practice only of the circuit courts, and does not apply in determining questions of jurisdiction.38 The federal courts have no jurisdiction upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery, or as an incident to divorce a vinculo, or from bed and board.39

553; 29 Stat. 482, 695; 26 Stat. 829; Rev. St. §§ 629, 637, 638; 28 Stat. 570.

35 Foster, Fed. Pr. (3d Ed.) § 25; Rev. St. U. S. § 563; 24 Stat. 505; 25 Stat. 357; 30 Stat. 545, 546, 552; 1 Desty, Fed. Proc. (9th Ed.) §§ 49-61. 36 Lorman v. Clarke, 2 McLean, 568, Fed. Cas. No. 8,516; Loring v. Marsh, 2 Cliff. 469, Fed. Cas. No. 8,515; Fontain v. Ravenel, 17 How. (U. S.) 390.

37 Meade v. Beale, Taney, 339, Fed. Cas. No. 9,371.

88 Lewis v. Shainwald, 7 Sawy. 403, 48 Fed. 492. 39 Barber v. Barber, 21 How. (U. S.) 582.

§ 7. Importance of a knowledge of equity pleading and practice.

While it is true that in many of the states of the United States the distinction between actions at law and suits in equity is abolished by the codes and practice acts, still an understanding of equity practice is necessary to every practitioner. In the federal courts, chancery and chancery jurisprudence are substantially retained in their integrity. Even though the state in which the federal court is sitting is one in which the distinction between actions at law and suits in equity is abolished by the codes and practice acts, when a suit is originally brought in the federal court the distinction between law and equity is rigidly adhered to. The principle is well settled that the chancery jurisdiction of federal courts is not impaired by state laws creating special jurisdictions. The chancery procedure of federal courts is uniform everywhere in the United States, and is independent of state laws.40 But an enlargement of equitable rights by state legislation will be administered in the federal courts as well as by the courts of the state.11 The statutes of the United States provide: "That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal."42 Where the case made by the pleadings in the state court is in its nature a law action, it must, when removed to the federal court, proceed as such, and no repleader is necessary.1 Where the suit in the state court is in its nature a suit in equity, it must

43

40 Ridings v. Johnson, 128 U. S. 212; United States v. Howland, 4 Wheat. (U. S.) 108; Boyle v. Zacharie, 6 Pet. (U. S.) 648; Gaines v. Relf, 15 Pet. (U. S.) 9; Bronson v. Schulten, 104 U. S. 410; Thomas v. Nantahala Marble & Talc Co., 58 Fed. 485, 8 U. S. App. 429; Elliott v. Schuler, 50 Fed. 454.

41 Holland v. Challen, 110 U. S. 15; In re Broderick's Will, 21 Wall. (U. S.) 520.

42 18 Stat. 472; 25 Stat. 433; 1 Desty, Fed. Proc. (9th Ed.) § 110.

43 Perkins v. Hendryx, 23 Fed. 418; Dart v. McKinney, 9 Blatchf. 359, Fed. Cas. No. 3,583.