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Evidence and Practice

equity, ed, ct, sup, answer, court, courts and testimony

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EVIDENCE AND PRACTICE. The rules evi dence, except as to the effect of the answer and the taking of the testimony, are, in gen eral, similar to the rules of evidence in cases at law. But to this there are exceptions.

The answer, if made on oath, is evidence for the defendant, so far as it is responsive to the calls of the bill for discovery, and as such it prevails, unless it is overcome by something more than what is equivalent to the testimony of one witness. If without oath, it is a mere pleading, and the allega tions stand over for proof.

If the answer is incomplete or improper, the plaintiff may except to it, and it must, if the exceptions are sustained, be so amend ed as to be made sufficient and proper.

The case may be heard on the bill and an swer, if the plaintiff so elects, and sets the ease down for a hearing thereon.

If the plaintiff desires to controvert any of the statelnents In the answer, he files a replication by which he denies the truth of the allegations in tire answer, and testi mony is taken.

The testimony, according to the former practice in chancery, is taken upon inter rogatories filed in the clerk's office, and pro pounded by the examiner, without• the pres ence of the parties. But this practice has been very extensively modified. Equity rule 46 (33 Sup. Ct. xxxi) of the United States Supreme Court (in effect February 1, 1913), provides that the testimony of witnesses shall be taken in open court except as other wise provided by statute or by the equity rules.

If any of the testimony is improper, there is a motion to suppress it.

The case may be referred to a master to state the accounts between the parties, or to make such other report as the case may require; and there may be an examination of the parties in the master's olAce. Excep tions may be taken to his report.

The hearing of the case is before the equi ty judge, who may make interlocutory or ders or decrees, and who pronounces the final decree or judgment. There may be a rehearing, if sufficient cause is shown.

At the present day, wherever equity forms are used, the proceedings have become very much simplified.

The system of two distinct sets of tri bunals administering different rules for the adjudication of causes has been changed in England. By the Judicature Acts of 1873 and 1876, the courts of law and equity were consolidated into one Supreme Court of Judi cature, in which equitable rights and de fences are recognized in all proceedings to the same effect as a court of chancery would have recognized them before the passing of the act. Equitable remedies are substantial

ly applied.

In America, the federal courts have equity powers under the constitution, where an ade quate remedy at law does not exist ; R. S. § 723 ; Smyth v. Banking Co., 141 U. S. 656, 12 Sup. Ct. 113, 35 L. Ed. 891; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. 276, 34 L. Ed. 873. The adequate remedy at law, which is the test of the equitable jurisdic tion of the courts of the United States, is that which existed when the judiciary act of 1789 was adopted, unless subsequently changed by congress ; McConihay v. Wright, 121 U. S. 201, 7 Sup. Ct. 940, 30 L. Ed. 932. The equity jurisdiction conferred on the federal courts is the same as that of the for mer court of chancery in England, is subject to neither limitation nor restraint by state legislation, and is uniform throughout the states; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052; Kirby v. R. Co., 120 U. S. 130, 7 Sup. Ct. 430, 30 L. Ed. 569; Smith v. Burnham, 2 Sumn. 612, Fed. Cas. No. 13,018 ; but these are only the powers which are judicial in their char acter, and not such as belong to the chancel lor of England as the keeper of the con science of the king, as representing his per son and administering as his agent his pre rogatiVes and duties; Gallego's Ex'rs v. At torney General, 3 Leigh (Va.) 450, 24 Am. Dec. 650.

In the administration of that jurisdiction the federal courts are not to "look only to the statutes of congress. The principles of equity exist independently of, and anterior to, all congressional legislation, and the stat utes are either enunciations of those prin ciples or limitations upon their application in particular cases" ; U. S. v. Lumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 490, where it was held that even "in passing up on transactions between the government and its vendees" the principles of equity must be borne in mind and applied, and that al though, while the legal title to land remains in the government, the holder of an equitable title may not be able to enforce his equity by reason of inability to sue the government ex cept upon contract, he may protect that equi ty when sued by the government.

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