TITLE XVIII.

AN ACT FOR THE REGULATION OF PROCEEDINGS IN
EQUITY.

CHAPTER I.

OF CERTAIN PROVISIONS RESPECTING JURISDICTION, PROCESS, AND
PLEADINGS IN EQUITY.

Be it enacted by the Senate and House of Representatives, in General Assembly convened:

SECTION 1. That the several courts, having jurisdiction of suits Courts of equity.. brought for relief in equity, shall have power to proceed according how to proceed. to the rules, usage, and practice, in courts of equity, and shall take cognizance only of matters in which adequate relief cannot be had in the ordinary course of law;.they shall keep records of their proceedings, and shall have power to enforce their decrees by granting execution as in actions at law, or in any other manner proper for a court of equity, and no appeal shall be allowed from their decrees.*

*Cases in which the rule has been applied, that equity will not interfere where the plaintiff has adequate remedy at law. Willet v. Overton, 2 Root, 838: Coe v. Turner, 5 C. R. 86; Barkhamsted v. Case, 5 C. R. 528; Skinner v. Bailey, 7 C. R. 496; Stannardo. Whittlesey, 9 C. R. 556; Gager v. Watson, 11 C. R. 168; Dutton v. Connecticut Bank, 13 C. R. 493; White v. Wheaton, 16 C. R. 530; Norwich and Worcester Railroad Co. v. Story, 17 C. R. 364; Salem and Hamburgh Turnpike Co. v. Lyme, 18 C. R. 451; West o. Howard, 20 C. R. 581; Johnson v. Connecticut Bank, 21 C. R. 148; Miller v. Welles, 28 C. R. 21; Whitney v. New Haven, 23 C. R. 624: Sheldon v. Centre School District, 25 C. R. 224; Wolcott v. Robbins, 26 C. R. 236; Hawley v. Botsford, 27 C. R. 80; Mason v. Lawrence, 27 C. R. 572; Munson v. Munson, 28 C. R. 582. Nor where the plaintiff has a doubtful right. Falls Village Water Power Co. v. Tibbetts, 31 C. R. 165. Voluntary contracts will not be enforced in equity. Dickinson v. Glenney, 27 C.

R. 104.

Case where relief was granted though adequate remedy at law. Hurlbut v. Phelps, 80 C. R. 42.

Cases in which the rule has been applied, that equity will grant relief when the plaintiff's remedy at law is not clear and complete. Booth v. Starr, 5 Day, 419; Asylum v. Phoenix Bank, 4 C. R. 172; Griswold v. Mather, 5 C. R. 485; Judd v. Bushnell, 7 C. R. 204; Montville v. Haughton, 7 C. R. 543; Witter v. Richards, 10 C. R. 37; Cowles v. Whitman, 10 C. R. 121; Russell v. Green, 10 C. R. 269; New London Bank v. Lee, 11 C. R. 112; Gillett v. Hall, 13 C. R. 426; Carrington v. Holabird, 19 C. R. 84; Phalen v. Clark, 19 C. R. 421; Chipman v. City of Hartford, 21 C. R. 488; Norton v. Ladd, 22 C. R. 203; Hood v. N. Y. & N. H. R. R. Co. 23 C. R. 609; Ferguson v. Fisk, 25 C. R. 501. Remedy at law must be obvious. Swift v. Larrabee, 31 C. R. 225. When relief is granted where there is adequate remedy at law, the decree is merely erroneous. Munson v. Munson, 30 C. R. 425.

Equity may grant relief against principal debtor, although there be adequate remedy at law against surety. Middletown Bank v. Russ, 3 C. R. 135. Will generally enforce an award which secures a specific remedy or the execution of a specific act. Story v. Norwich & Worcester R. R. Co. 24 C. R. 94.

The bill is sufficient if it discloses facts from which it appears that plaintiff has no

Bills in equity, how signed, served, &c.

SECT. 2. All bills, or petitions, preferred to a court of equity, shall be signed by the party, or his attorney, and shall be accompanied with a summons, signed by some competent authority, noti

adequate remedy at law, although it contain no direct averment to that effect. Botsford v. Beers, 11 C. R. 369.

Individual stockholder in a corporation may maintain bill against the directors for misconduct. Allen v. Curtis, 26 C. R. 456. Relief sought by a bill quia times is not to be granted as a matter of course. Munson v. Munson, 28 C. R. 582. Courts of equity have no controlling influence over courts of law. Hood' v. N. Y. & N. H. R. R. Co. 23 C. R. 609. Bill in equity for a division of the property among the partners after a dissolution of the partnership will not be sustained. Dickinson v. Dickinson, 29 C. R. 600.

Equity will not take cognizance of matters properly cognizable by courts of probate. Brown v. Lanman, 1 C. R. 467; Pitkin v. Pitkin, 7 C. R. 307; Pitkin v. Pitkin, 7 C. B. 315; Bailey v. Strong, 8 C. R. 278; Beach v. Norton, 9 C. R. 182; Gates v. Treat, 17 C. R. 388; Bissel v. Bissel, 24 C. R. 241. Will not lend its aid to enforce a forfeiture. Warner v. Bennett, 31 C. R. 468.

When equity will enforce specific performance of agreements. Southworth v. Lathrop, 5 Day, 237; Jones v. Jones, 6 C. R. 111; Cowles v. Whitman, 10 C. R. 121. When not. Lloyd v. Bull, 1 Day, 173; Dibble v. Hutton, 1 Day, 221; Butler v. Buckingham, 5 Day, 492; Pond v. Smith, 4 C. R. 297; Porter v. Tudor, 9 C. R. 411; Segur v. Tingley, 11 C. R. 134; Eaton v. Whitaker, 18 C. R. 222. A specific execution of a contract is not a matter of right, and will not be enforced unless the legal remedy is inadequate or defective. Meeker v. Meeker, 16 C. R. 403. Nor unless the relief sought is, with reference to the parties and subject matter, strictly equitable. Canterbury Aqueduct Co. v. Ensworth, 22 C. R. 608. Equity will not compel specific performance, where the consideration is inadequate, or where the agreement is not explicit. Dodd v. Seymour, 21 C. R. 476. Will not reform an instrument for omission of a clause which merely from propriety ought to be inserted. Thompsonville Manufacturing Co. v. Osgood, 26 C. R. 16. Petition for such reformation should embody the defective instrument, and the real agreement. Same.

Where parties have agreed upon a precise time for performance of an act, equity will be very cautious about interfering in disregard of such stipulation; but where the party insisting upon performance at such precise time, has himself caused delay beyond it, equity may afterwards, as against him, enforce specific performance. Potter . Tuttle, 22 C. R. 512.

Various points in relation to enforcement, in equity, of ante-nuptial contracts. Andrews v. Andrews, 8 C. R. 79; Baldwin v. Carter, 17 C. R. 201; Imlay v. Huntington, 20 C. R. 146; West v. Howard, 20 C. R. 581.

Courts of equity will, for reasons of public policy, often infer fraud, from the existence of certain relations. Miller v. Welles, 23 C. Ř. 21.

When equity will relieve against fraud. Henshaw v. Atkins, 2 Root, 7; Whipple. McClure, 2 Root, 216; Beardsley v. Bennett, 1 Day, 107; Sherwood v. Salmon, 5 Day, 489; Sacket v. Hillhouse, 5 Day, 551; Fuller v. Bettes, 10 C. R. 19; Botsford v. Beers, 11 C. R. 369; Annan v. Merritt, 13 C. R. 478; Brainerd v. Brainerd, 15 C. R. 575; Callender v. Colegrove, 17 C. R. 1; Phalen v. Clark, 19 C. R. 421; Pearce v. Olney, 20 C. R. 544; Lavette v. Sage, 29 C. R. 577. When against a combination to defraud. Story v. Norwich & Worcester R. R. Co. 24 C. R. 94. Where fraud and damage occur. Miller v. Welles, 23 C. R. 21. When against mistake. Gay v. Adams, 1 Root, 105; Parsons v. Hosmer, 2 Root, 1; Cook v. Preston, 2 Root, 78; Elmore v. Austin, 2 Root, 415; Sanford v. Washburn, 2 Root, 499; Washburn v. Merrills, 1 Day, 139; McCall . McCall, 3 Day, 402; Peters v. Goodrich, 3 C. R. 146; Mead v. Johnson, 3 C. R. 592; Smith v. Chapman, 4 C. R. 344; Watson v. Wells, 5 C. R. 468; Abbe v. Goodwin, 7 C. R. 377; Montville v. Haughton, 7 C. R. 543; Carter v. Champion, 8 C. R. 549; Chamberlain v. Thompson, 10 Č. R. 243; Sumner v. Rhodes, 14 C. R. 135; Holabird ». Burr, 17 C. R. 556; Woodin v. Haviland, 18 C. R. 101; Hathaway v. Hemingway, 20 C. R. 191; Stedwell v. Anderson, 21 C. R. 139; Bunnell v. Read, 21 C. R. 586; Knapp. White, 23 C. R. 529; Brainerd v. Arnold, 27 C. R. 617. On bill for relief against mistake in a deed, what evidence admissible. Knapp v. White, 23 C. R. 529. When not. Wheaton v. Wheaton, 9 C. R. 96; Segur v. Tingley, 11 C. R. 134; Osborn e. Phelps, 19 C. R. 63. Will not correct against a written contract for mistake in drafting it, unless the mistake was mutual. Brainerd v. Arnold, 27 C. R. 617.

Relief adapted to the case, though different from the relief specifically prayed for, may be granted under the general prayer for relief, when. Enfield Toll Bridge Co. . Hartford and New Haven Railroad Co., 17 C. R. 40. In relieving against invalid judgment, court will require that justice be done to the creditor. Litchfield's Appeal, 23 C.

R. 127.

Where a condition subsequent has not been performed by the time, and compensation can be made, a court of equity will grant relief. Walker v. Wheeler, 2 C. R. 299; Bowen v. Bowen, 20 C. R. 127. When conditions subsequent will be enforced. Judd v. Bushnell, 7 C. R. 205. When a contract is taken out of the statute of frauds, &c. Cady v. Cadwell, 5 Day, 67; Crocker v. Higgins, 7 C. R. 342; Annan . Merritt, 13 C. R. 478. When appraisers have been misled. Wells v. Bridgeport Hydraulic Co., 30 C. R. 316. When equity will relieve against an improvident contract between guardian and ward, in a settlemen of account. Hall v. Cone, 5 Day, 543. When against an

fying the defendant to appear before the court, and shall be served on the defendant by some proper officer reading it in his hearing, or leaving a true and attested copy of it at his usual place of abode, at least twelve days before the sitting of the court. If an officer, having commenced service of a petition, dies before its completion, any other proper officer may complete the same. Whenever the defendant or defendants, named in the bill or petition, shall live out of the state, notice may be given to such defendant or defendants, in the manner prescribed in the act relating to courts.*

1864.

1881.

SECT. 3. Whenever a cross bill shall be preferred in any suit in Notice of cross equity, the filing thereof with the clerk of the court shall be sufficient bill.

award obtained by false statements before the arbitrators. Bulkley v. Starr, 2 Day, 552. Equity will enforce an award of arbitrators. Storey v. Norwich and Worcester R. R. Co., 24 C. R. 94. Equity will not set aside an award, except for partiality and corruption of the arbitrators, or mistakes on their own principles, or fraud and misbehavior of parties. Allen v. Ranney, 1 C. R. 569; Brown v. Green, 7 C. R. 536; Bennett v. Bennett, 25 C. R. 66. Will not restrain a city corporation from enforcing assessments. Dodd v. City of Hartford, 25 C. R. 232. When 'delay will preclude the party from relief. Banks v. Judah, 8 C. R. 145. When not. Callender v. Colegrove, 17 C. R. 1. Whether a party owning the foundation of a building may be relieved in equity against a party owning the roof, who refuses to repair. Cheeseborough v. Green, 10 C. R. 318. What is agreed to be done, a court of equity will consider as done, or enforce it as a matter which ought to be done. Atwood v. Vincent, 17 C. R. 575. Whether courts of equity have concurrent jurisdiction with courts of admiralty. Southworth v. Smith, 27 C. R. 355. Will not allow a trust to fail for want of a trustee. Treat's Appeal, 30 C. R. 113. When bill dismissed, finding of facts is conclusive. Munson v. Munson, 30 C. R. 425.

The allowance of costs is within the discretionary power of the court. Tomlinson v. Ward, 2 C. R. 396; Cowles v. Whitman, 10 C. R. 121. When costs will be allowed. Watson v. Wells, 5 C. R. 468; Spencer v. Champion, 13 C. R. 11; Annan v. Merritt, 13 C. R. 478; Norton v. Ladd, 22 C. R. 203; Camp v. Waring, 25 C. R. 520; Hoyt v. Smith,

28 C. R. 466.

Acceptance of service by attorney appointed by the president of a corporation, who was not authorized to make such appointment, not legal. Bridgeport Savings Bank v. Eldridge, 23 C. R. 556.

546.

The plaintiff's bill must show that the court has jurisdiction. Griswold v. Mather, 5 C. R. 435; Skinner v. Bailey, 7 C. R. 496; Judd v. Bushnell, 7 C. R. 204. Bill must show title to the relief. Cady v. Cadwell, 5 Day, 67; Shepherd v. Shepherd, 6 C. R. 87 Hobart v. Frisbie, 5 C. R. 592; Gaston v. Plum, 14 C. R. 344. No objection to jurisdiction can be taken at the hearing. Niles v. Williams, 24 C. R. 279; Ferguson v. Fisk, 28 C. R. 501. A party, seeking relief against one who has the legal title, must show a superior equity. Chamberlain v. Thompson, 10 C. R. 243; Fairchild v. Brown, 11 C. R. 26; Sumner v. Sumner, 14 C. R. 135. When an equitable title will not be enforced. Wheaton v. Dyer, 15 C. R. 307; Bush v. Golden, 17 C. R. 594. Who are proper to be made parties. Rumrill v. Huntington, 5 Day, 163: Griswold v. Mather, 5 C. R. 435; Watson v. Wells, 5 C. R. 468; Montville v. Haughton, 7 C. R. 543; Gaston . Plum, 14 C. R. 344; Cornwell v. Lee, 14 C. R. 524; Goddard v. Prentice, 17 C. R. All persons materially interested in the subject matter should be made parties. Crocker v. Higgins, 7 C. R. 342; Crane v. Deming, 7 C. R. 387. But in certain cases where the application of this rule would be extremely inconvenient, courts will not insist upon it. Baldwin v. Norton, 2 C. R. 161; Townsend v. Auger, 3 C. R. 354. Objection of want of proper parties may be too late, after appointment of committee and full investigation of the merits of the bill. Chipman v. City of Hartford, 21 C. R. 586; Bunnell v. Read, 21 C. R. 586; Ferguson v. Fisk, 28 C. R. 501; Chambers v. Rollins, 28 C. R. 552. A bill is not dismissed for want of parties. Nash v. Smith, 6 C. R. 421; New London Bank v. Lee, 11 C. R. 112; Potter v. Holden, 31 C. R. 225. But where neither is entitled to relief, bill will be dismissed. Jones v. Quinnipiack Bank, 29 C. R. 25. When the matter is of general interest to many persons, a part may sue in behalf of themselves and others. Same. When petitioners have not common interest, cannot join. Harrison v. Belden, 26 C. R. 67. What is not multifariousness. Hotchkiss, 14 C. R. 32; Bacon v. Huntington, 14 C. R. 92; Cornwell v. Lee, 14 C. R. 524; Robinson v. Cross, 22 C. R. 171; Wells v. Bridgeport Hydraulic Co., 30 C. R. 316; Ashmead v. Colby, 26 C. R. 287. After hearing on the merits, a bill combining prayer to redeem with prayer for specific performance, is not open to objection as embracing distinct subjects. Avery v. Kellogg, 11 C. R. 562. Bill bad for multifariousness, when. Coe v. Turner, 5 C. R. 86.

Mix v.

In this state it is not requisite that a bill in chancery be accompanied by an affidavit. Jerome v. Jerome, 5 C. R. 352.

To authorize appointment of receiver, bill must lay a foundation by allegations showing necessity of such appointment. Tomlinson v. Ward, 2 C. R. 396.

Supplemental bill, properly allowed and filed, is regarded as part of the original bill, so that the two may be taken as one amended bill. Gillett v. Hall, 13 C. R. 426.

notice to all parties appearing in such suit; and if any person, not appearing in such suit, ought to be made a party to such cross bill, notice of its pendency may be given to such person, in the manner which the court, before whom the same is pending, may prescribe. SECT. 4. Whenever a sum of money is sought to be recovered Bill for recovery by a bill or petition, preferred to a court of equity, such bill or petiserved by attach- tion may be commenced by process of attachment, and such process may be proceeded with, as to the sale or disposal of the property attached, and in all other respects, as in actions at law.

1831.

of money may be

ment.

Amendments.

Disclosure.

Facts to appear on the record.

Writs of error.

New trials.

SECT. 5. Courts of equity may, at any time, permit the parties to amend any defect, mistake, or informality, in bills, petitions, or pleadings, in any suit pending before them, on the payment of lawful costs to the other party, at the discretion of the court; but the plaintiff may amend his bill, within the three first days of the court to which it is returned, without costs; and in all cases of the amendment of a bill, or petition, the court shall grant the defendant a reasonable time to make answer thereto.*

SECT. 6. When the plaintiff in a bill in equity shall require of the defendant a discovery on oath, respecting the matters charged in the bill, the disclosure by the defendant shall not be deemed conclusive, but may be disproved, or contradicted, like any other testimony, according to the practice in courts of equity.t

SECT. 7. Courts of equity shall cause the facts on which they found their decrees to appear on the record.

SECT. 8. Whenever material and manifest error shall appear of record in any decree, passed by the superior court as a court of equity, the party aggrieved may bring a writ of error, to the supreme court of errors.

SECT. 9. Courts of equity may grant new trials for newly dis covered evidence, or any other reasonable cause, according to the course of proceedings in equity.§

* Plaintiff permitted to amend his bill after report of committee and hearing thereon, when. Pond v. Smith, 4 C. R. 297; Camp v. Waring, 25 C. R. 520; Hoyt v. Smith, 27 C. R. 468. When costs on amendment to be paid by petitioners. Hoyt v. Smith, 27

C. R. 468.

+ When a court of equity will compel a discovery in aid of a suit at law. Skinner &. Judson, 8 C. R. 528. It must be averred that the plaintiff has not sufficient evidence without it. Norwich and Worcester Railroad Co. v. Storey, 17 C. R. 364. Having cognizance for the purpose of discovery, the court will grant relief in most cases of fraud, account, accident, and trust. The Middletown Bank v. Russ, 3 C. R. 135; Isham v. Gilbert, 3 C. R. 166; Stebbins v. Cowles, 10 C. R. 399. Equity will not compel a person to discover what may subject him to a penalty. Northrop v. Hatch, 6 C. R. 861; Skinner v. Judson, 8 C. R. 529. But this rule does not apply where penalty is waived, or is barred by statute of limitations. Skinner v. Judson, 8 C. R. 528; contra, Northrop v. Hatch, 6 C. R. 361.

Whether the action, in aid of which a discovery is sought, be founded on tort or contract, if plaintiff has equitable right, discovery will be enforced. Skinner v. Judson, 8 C. R. 529. Various points relating to disclosures Hoyt v. Smith, 23 C. R. 177.

The facts found by the court must warrant the decree, and must be substantially those alleged in the bill. Samson . Hunt, 1 Root, 207; Beers v. Botsford, 13 C. R. 146. Decree in a bill of foreclosure ordering defendant to pay more than appeared by the finding to be due upon the mortgage debt, is erroneous. Goodrich v. Stanley, 23 C. R. 79. The effect of a general finding. Abbe v. Goodwin, 7 C. R. 877; Dodd . Seymour, 21 C. R. 476. Court in passing decree need not in terms find fraud, but it is sufficient if the facts are found. Lavette v. Sage, 29 C. R. 577. When fraud depends on motives and intents, it must be found specifically. Same. What facts the court will notice. Gaylord v. Couch, 5 Day, 223. When a former decree will operate as an estoppel. Crandall v. Gallup, 12 C. R. 365. When a decree on a bill to perpetuate testimony, is a final decree. Jerome v. Jerome, 5 C. R. 352. What allegations necessary in such a bill. Same.

Report of committee, when accepted, becomes part of the record, and omission of it in writ of error, is fatal. Gaylord v. Couch, 4 Day, 374.

§ See notes to Sect. 199, Title 1.

Judge, in vaca

SECT. 10. Whenever any action shall be brought to, or be pend- 1854. ing in, any superior court, or city court, in which an application shall tion, may ap be made to said court for the appointment of a receiver, either judge point receiver. of the supreme court of errors, or of the superior court, in vacation, after due notice given, may make such order in the premises as the exigencies of the case may require, and may, from time to time, rescind and modify the same, and such judge shall cause his proceed- Proceedings to ings to be certified to the court in which the action may be pending, at the next session thereof.

be certified.

may be made a

is no executor or

SECT. 11. Whenever it would be necessary in any bill or petition, Representatives brought or pending in equity, not relating to real estate, to make party, when there the executor or administrator of any deceased person, if any, a party administrator. thereto, and there shall be no such executor or administrator, the petitioner may set forth in his petition the interest of such deceased person, and make his "representatives," without other designation

or description, a party thereto, and the court, to which such petition Notice, how shall be preferred, or any judge thereof in vacation, may make such given. order relative to the notice which shall be given as it or they shall judge reasonable; and such notice having been given according to the order, and duly proved, the court may proceed to a hearing of the cause; and any administrator, who may be appointed pending Who may desuch proceedings, or if there shall be none, any other person, claiming an interest in the estate of such deceased person, may appear

and defend in such suit.

fend.

CHAPTER II.

OF INJUNCTIONS.

errors and supe

'grant writs of in

SECT. 12. Each of the judges of the supreme court of errors, and Judges of the suof the superior court, may, on motion, grant and enforce writs of in-preme court of junction, according to the course of proceedings in courts of equity, rior court may in all cases within the jurisdiction of the superior court, arising in function. any county, when such court shall not be in session, which writs shall be returnable to the next superior court in said county.*

A court of equity will enjoin against waste upon land attached, during the pendency of the suit. Camp v. Bates, 11 C. R. 51. Where there is danger that tenant for life, of personal chattels, will waste, secrete, or remove them, equity will protect interest in remainder, by compelling tenant for life to give security. Langworthy v. Chadwick, 13 C. R. 42. An injunction will be sustained for invading a franchise of the plaintiffs. Hartford Bridge Co. v. East Hartford, 16 C. R. 149. A party may be enjoined from enforcing a judgment improperly obtained. Carrington v. Holabird, 17 C. R. 580; Carrington . Holabird, 19 C. R. 84; Pearce v. Olney, 20 C. R. 544. The plaintiff must be in the enjoyment of the right attempted to be infringed. Enfield Toll Bridge Co. v. Connecticut River Co., 7 C. R. 28. A bill for an injunction against a public nuisance, will not be sustained, unless it shows a particular injury to plaintiff. Bigelow v. Hartford Bridge Co., 14 C. R. 565; O'Brien v. Norwich and Worcester Railroad Co., 17 C. R. 372. Frink v. Lawrence, 20 C. R. 117. A party seeking an injunction must show a particular injury, distinct from that which he suffers in common with the public. Falls Village Water Power Co. v. Tibbetts, 31 C. R. 165. Appropriate remedy of mortgagee against mortgagor in possession, for waste, is by injunction. Cooper v. Davis, 15 C. R. 556. In behalf of creditors of insolvent corporation, equity will interfere to compel stockholders to pay up their subscriptions, when directors refuse to exercise the power,