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dence, as administered in the Courts of Common Law and of Equity, being in other respects generally the same.

§ 256. In the national tribunals of the United States, where the jurisdiction, both at law and in equity, is vested in the same Courts, the course of proceeding is nearly the same, in its main features, as it was in the year 1841 in the High Court of Chancery in England; many of whose Orders of that year were adopted in the Rules of Practice ordained by the Supreme Court in 1842;1 with a general reference to the then existing English practice in Chancery, as furnishing just analogies for the regulation of the practice in the Courts of the United States, in all cases not otherwise provided for.2 The same general course of practice is adopted in several of the individual States, which still retain a separate Court of Chancery, distinct from the Courts of Common Law. Such is the case in the States of New Jersey, Delaware, Tennessee, South Carolina, Mississippi, and Alabama.3 In these States, therefore, at least, as well as in the national tribunals, the rules of evidence, peculiar to proceedings in Chancery, may be supposed to be generally recognized and observed; and all these rules it is proposed, for that reason, to state and explain; especially as many or all of them may be applicable, to some extent, and in various degrees, in the practice of the other States.

§ 257. But in all the States, except those above named,

1 See Reg. Gen. Sup. Court, U. S. 1 How. S. C. R. p. xli. -lxx. 2 Idem. p. lxix. Reg. xc. The course of Chancery practice in England has recently undergone a total change, by the statute of 15 & 16 Vict. c. 86, and the new Orders thereupon made; greatly simplifying and improving the proceedings. See note, at the end of this chapter.

3 The office of Chancellor still exists in Maryland, but, by the Constitution, as revised and adopted in 1851, it is to cease in two years from that time. See Art. 4, § 23. In Mississippi, the Constitution establishes a Superior Court of Chancery, but authorizes the Legislature to give to the Circuit Courts of each county Equity jurisdiction, in cases where the value in controversy does not exceed five hundred dollars. Art. 4, § 16.

the jurisdiction in Equity is vested in the Courts of Common Law; and in many of these, the course of proceeding, in several important particulars, has been so materially changed, that it is hardly possible to construct a treatise on evidence in Equity, equally applicable or useful in them all. Thus, in the States of New York, Indiana, Georgia, Louisiana, Texas, and California, there is no distinction in the forms of remedy or mode of trial, in civil cases of any description, whether cognizable in other States, in Courts of Equity or of Common Law; but every suit is prosecuted and defended by one uniform mode of petition and answer, to which no oath is required. It is obvious, therefore, that, in these States, that part of the law of evidence which relates to the effect of the defendant's answer as evidence in the cause, has but little force, except so far as it may contain voluntary admissions of fact against himself.2

1 The Judiciary Act of Congress, (1789, ch. 20, § 34,) provides that the laws of the several States, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the Courts of the United States, in cases where they apply. This provision is held to include those statutes of the several States which prescribe rules of evidence in civil cases, in trials at common law. McNiel v. Holbrook, 12 Pet. 84, 89. But it has been decided that the adoption of State practice must not be understood as confounding the principles of law and equity; that the distinction between law and equity is established by the national Constitution; and that, therefore, though a party, seeking to enforce a title or claim at law in the Courts of the United States, may proceed according to the forms of practice adopted in the State where the remedy is pursued; yet, if the claim is an equitable one, he must proceed according to the rules which the Supreme Court of the United States has prescribed for the regulation of proceedings in Equity; notwithstanding the State laws have abolished the distinction of forms of proceeding at law and in equity, and have established one uniform and peculiar mode of remedy for all cases. Bennett v. Butterworth, 11 How. S. C. R. 669. And see Livingston v. Story, 9 Pet. 632; Gaines v. Relf,

15 Pet. 9.

2 In all cases, in the six States above mentioned, and in New Hampshire, and in cases in Equity, in New Jersey, Ohio, Wisconsin, Missouri, Mississippi, and Arkansas, provision is made by law by which parties may, under certain regulations, examine each other as witnesses in the cause, thus superseding, to a great extent, the use of cross-bills. See ante, Vol. 1, § 361, note.

§ 258. In all the States not already named, the proceeding in Equity is understood to be by bill and answer, according to the usual practice in Chancery; though subject to some modifications. Thus, in Connecticut, though the complaint is by bill, the defence is either by demurrer, or by a plea of general denial of the plaintiff's complaint, and this without oath; no oath being required of the defendant, except to his answer to a bill of discovery; or, by a hearing of the bill, without plea, the defendant being permitted at the hearing to prove any matter of defence.

§ 259. In many other States it is either expressly enacted, or implied from existing enactments and therefore always permitted, that the trials of fact, in Chancery cases, shall or may be by witnesses orally examined in Court, or by deposi tions, taken in the same manner and for the same causes as at law. By force of these provisions, therefore, and this course of practice, all that portion of the law of evidence in Equity which relates to the mode of taking testimony, and requires it to be secret, and by depositions, is rendered obsolete in more than half the territory of the United States.

§ 260. Another and very material inroad upon the regular practice in Chancery is made in those States in which it is the right of the party to have a trial by jury of all questions of fact, in cases in Equity, as well as at Law. In the Constitution of the United States, it is provided, that "In suits at common law, where the value in controversy shall exceed

1 Dutton's Dig. p. 521, 525, 526, 530; Broome v. Beers, 6 Conn. 208,

209.

2 Such, of course, is the practice in those States where but one form of remedy is pursued in all civil cases. See also Missouri, Rev. Stat. 1845, ch. 137, art. 3, § 10, 11; Georgia, Hotchk. Dig. p. 583, 584; South Carolina, 4 Griff. Reg. 830, 870; Illinois, Rev. Stat. 1845, ch. 40, § 11; Stat. 1849, Feb. 12, § 1; Florida, Thomp. Dig. p. 461; Ohio, Rev. Stat. 1841, ch. 46, §1; Michigan, Rev. Stat. 1846, ch. 90, § 49, 50, 51, 57; Broome v. Beers, supra; Massachusetts, Stat. 1852, ch. 312, § 85; Wisconsin, Const. Art. 7, $19.

twenty dollars, the right of trial by Jury shall be preserved ; and no fact, tried by Jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."1 This provision has been construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights; and the latter clause of the article has been held to be a substantial and independent clause. This being the case, the question may well arise

1 Const. U. S. Amendments, Art. 7.

2 Parsons v. Bedford, 3 Peters, 433. In this case, which was brought up from Louisiana, where all civil proceedings are by petition and answer, Mr. Justice Story, in delivering the judgment of the Court, expounded the article in question in the following terms: "At this time," (referring to the time of its adoption,) "there were no States in the Union, the basis of whose jurisprudence was not essentially that of the common law in its widest meaning; and probably no States were contemplated, in which it would not exist. The phrase 'common law,' found in this clause, is used in contradistinction to equity, and admiralty and maritime jurisprudence. The constitution had declared, in the third article, 'that the judicial power shall extend to 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,' &c., and to all cases of admiralty and maritime jurisdiction. It is well known that in civil causes, in Courts of Equity and Admiralty, Juries do not intervene, and that Courts of Equity use the trial by Jury only in extraordinary cases, to inform the conscience of the Court. When, therefore, we find that the amendment requires that the right of trial by Jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law, they meant what the constitution denominated in the third article 'law;' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any, States in the Union, in which some new legal remedies, differing from the old common-law forms, were not in use; but in which, however, the trial by Jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the amendment, then, may well be construed

whether the finding of the Jury is not thereby rendered conclusive, in issues out of Chancery.

to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. And Congress seems to have acted with reference to this exposition in the Judiciary Act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment); for in the ninth section it is provided, that 'the trial of issues in fact in the District Courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by Jury;' and in the twelfth section it is provided, that 'the trial of issues in fact in the Circuit Courts shall in all suits, except those of equity, and of admiralty and maritime jurisdiction, be by Jury;' and again, in the thirteenth section, it is provided, that 'the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States, shall be by Jury.' But the other clause of the amendment is still more important; and we read it as a substantial and independent clause. 'No fact tried by a Jury shall be otherwise re-examinable, in any Court of the United States, than according to the rules of the common law.' This is a prohibition to the Courts of the United States to re-examine any facts tried by a Jury in any other manner. The only modes known to the common law to re-examine such facts, are the granting of a new trial by the Court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate Court, for some error of law which intervened in the proceedings. The Judiciary Act of 1789, chap. 20, sec. 17, has given to all the Courts of the United States 'power to grant new trials in cases where there has been a trial by Jury, for reasons for which new trials have usually been granted in the Courts of law.' And the appellate jurisdiction has also been amply given by the same act (sec. 22, 24) to this Court, to redress errors of law; and for such errors to award a new trial, in suits at law which have been tried by a Jury. Was it the intention of Congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this Court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by the Jury? to enable it, after trial by Jury, to do that in respect to the Courts of the United States, sitting in Louisiana, which is denied to such Courts sitting in all the other States in the Union? We think not. No general words, purporting only to regulate the practice of a particular Court, to conform its modes of proceeding to those prescribed by the State to its own Courts, ought, in our judgment, to receive an interpretation which would create so important an alteration in the laws of the United States, securing the trial by Jury. Especially ought it not to receive such an interpretation, when there is a power given to the inferior Court itself to prevent any discrepancy between the State laws and the laws of the United States; so that it would be left to its sole discretion to supersede, or

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