Equity Procedure

Procedure in equity is much simpler than the procedure at common law. Its essential characteristics are based on the fact that the jurisdiction of equity is in personam and that the sole power of that court is to command things to be done, and not directly to transfer or otherwise affect the rights of litigants.

The first step in a proceeding in equity was to file in the office of the clerk of the court the bill which is the plaintiff's first pleading. Inasmuch as a court of equity acts in personam only, it can deal adequately with a many-sided controversy. There was consequently no limit to the number of parties to the proceeding, whose interests might be as diverse as their number, provided they were all interested in the controversy, and they might be brought into the proceeding by a proper bill. Upon service of the subpoena, the plaintiff then became entitled to an answer, failing which he was entitled upon the default of the defendant to the relief asked by the bill, or he could apply to have an attachment issued compelling the defendant to answer. Upon a determination of the questions raised by the pleadings and at the trial, the court might then make its decree adjusting the rights of all parties and commanding them to carry out its directions. If a party refused to obey the decree or order and was willing to accept the punishment for contempt, the court of equity was powerless to execute its decrees; but in modern practice this contingency is avoided by statutes authorizing the court to appoint an officer of the court to do the act required by the decree to be performed by a party and with the same legal effect.

At any stage of the proceeding, or even before service of process, the court may grant interlocutory or intermediate relief to prevent injury to the parties or the subject of the suit pending the litigation. This is usually in the form of an injunction or the appointment of a receiver.

Equity procedure, when it has been maintained as a distinct system, as in the United States courts and in a few States, notably New Jersey, has undergone no substantial change; and when modification has been adopted, it has been usually accomplished by rules of court.

Admiralty Procedure

Procedure in admiralty was founded upon the civil law and corresponds in many particulars to the equity system. It was much more simple and expeditious than the procedure of the common-law courts. It was adapted to proceedings either in rem or in personam, and, indeed, both forms of remedy might be sought and obtained in a single proceeding.

The first step in an admiralty proceeding was the filing of the libel, which, like the bill in equity, was both the plaintiff's or libellant's first pleading and a petition to the admiralty court to issue its writ or process, which was executed by an officer of the court by personally serving it upon the respondent in case the proceeding was in personam, or by taking possession of the property in case the proceeding was in rem. As in equity practice, the libellant might compel the defendant to give discovery (see PLEADING), by annexing interrogatories to his libel. If the respondent failed to appear the libel was taken pro confesso upon the default, and an appropriate decree was rendered. Upon the appearance of the respondent, he might either except to the libel or file his answer. The exception might be peremptory, when it was in substance like a demurrer to the substance of the libel; or it might be dilatory, when it was in effect like a demurrer to the form of the libel or a motion to strike out irrelevant or scandalous matter. The effect of the peremptory exception, if sustained, was the dismissal of the bill; otherwise the respondent was required to answer. In the case of dilatory exception, if sustained, the libellant was required to correct his libel by amendment so that it was formally correct, otherwise the respondent was required to answer. The answer might set up any matter of defense or an independent claim against the libellant, when the answer was called a cross libel. No attempt was made to reduce the matter in dispute to a single issue as in the pleadings at common law. As in equity, all evidence was usually taken before a commissioner or corresponding officer of the court and then submitted to the court; and, as in equity, the judgment of the court might be embodied in an interlocutory decree followed by a final decree.

Incidental relief might be granted during the progress of the litigation upon petition, if the application was ex parte, or by motion, when notice was given to the other litigants. Thus the court might authorize the sale of perishable goods and the appropriation of the proceeds as directed by the final decree, or it might authorize the return of property from the litigation upon the filing of a proper bond.

Admiralty procedure has undergone but slight modification; and that, as in equity, has been effected for the most part by rules of court.

Codes of Procedure

The embarrassment experienced as a consequence of the technical character of the common-law procedure led to various attempts at reform by legislation. The earliest of these was directed toward a simplification of the system of pleading, and has been referred to under that title. In 1848 the Legislature of new York adopted a civil code which was intended to be a complete codification of procedure both in law and equity. The New York code served as a model for similar legislation in many other States, while most of the remaining States, though nominally not code States, have so far revised their systems of procedure as to have systems substantially like the codes of procedure. Owing to the inherent difficulties in acceptably codifying a system so complex as the law of procedure, the codes have required frequent amendment and revision, despite which they are still found to have perpetuated many of the faults of the common-law system.

The following are some of the more important changes effected both by the codes and the various statutes enacted for the purpose of reforming procedure. All formal distinctions between the procedure at law and in equity have been abolished, and while the methods of trial in the one-case by a jury and in the other by the court have been preserved, the same court sits both as a court of law and a court of equity. Interlocutory or provisional remedies have been created by which in certain cases the plaintiff is enabled to procure a preliminary writ of attachment directed against the property or person of the defendant pending the litigation. Provision is also made for various motions to correct or amend the pleadings and for examination of witnesses and parties before trial; and the law relating to injunction and receivers is frequently regulated wholly by statute. Various provisions are also made to aid in the enforcement of judgments, usually by way of supplementary proceedings for examination of the judgment debtor and the appointment of receivers to collect sums due to him and apply them in satisfaction of the judgment.

As already suggested, most of the States have adopted codes of procedure or a reformed procedure substantially like the codes in which the law and equity system have been amalgamated and simplified as far as practicable.

Consult: Martin, Civil Procedure at Common Law (1899); Clark, Science of Law and Law Making; Daniell, Pleading and Practice of the High Court of Chancery (6th Amer. Ed., Boston, 1894); Shiras, Equity Practice in the United States Circuit Courts (2d ed., 1898); Henry, Admiralty Jurisdiction and Procedure (1885); Bishop, The Law of Criminal procedure (4th ed., Boston, 1895); Elliot, Criminal Procedure in England and Scotland (London, 1878); Elliott, Appellate Procedure (Indianapolis, 1892); and the works referred to under COMMON LAW; EQUITY; CODE; ADMIRALTY LAW; PLEADING; etc.