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and most common practice has been for the defendant, not to make any plea or anfwer, but to proceed to a hearing of the petition at large. In many cafes it would unquestionably be convenient, where the cafe depends on a fingle point, for the parties by conceflion in pleadings to bring that fingle point în view, and shorten the trial, by rendering it unneceflary to prove facts that were not contefled. And this may now be done, for the defendant in his anfwer might ftate the grounds of his defence, and point out the facts in the petition, which he denied. The petitioner in his reply, might alledge fuch new facts as he thought proper, to obviate the answer of the defendant and deny the facts he intended to conteft. But on this head, no rules have been adopted, there is no regular mode of clofing the pleadings, either party may ceafe to reipond or reply when he pleases, and the court will proceed to examine with ref pect to the truth of the facts in conteft, between the parties.

But as the defendant when he makes no answer, may take advantage of any defect of proof on the part of the petition, or infufficiency of the facts stated, as he may adduce witnefies to contradict and difprove fuch facts, and may take advantage of as many various points and different diftinct matters, as are in his power, to remove the ground of the claim, this mode has generally been purfucd for the defendant may derive from it every advantage that could poffibly be derived from pleading fpecially. It is a mode well calculated to bring before the court, every fact that can in any shape be material in the decision of the question. The plaintiff will at firft be confined to point his proof to the facts alledged in his petition, the defendant will be indulged to extend his proof to any matter, that is a good equitable ground to remove, or rebut the challenge of the plaintiff: who in his turn will be allowed to counteract fuch teftimony by other withefles. The caufe being heard upon this broad bafis, the court have the fairest chance to decide with refpect to the fufficiency, and the truth of the facts in queftion, upon the moft liberal and comprehenfive views of juftice, without thofe embaraffinents in which they are fometimes involved by the technical and narrow rules of special pleadings in fuits at law and tho to a jurilt converfant only in the English law, .. might appear a wild theory to admit fuch an extenfive range of teftimony

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teftimony, and variety of points of defence, without reducing them to writing, yet on actual experiment, it has been found that the practice is not only eafy and convenient, but tends greatly to facili tate the investigation of truth, and to promote the cause of justice.

CHAPTER ELEVENTH.

OF TRIALS IN EQUITY.

WHEN the defendant puts the facts in the petition on proof,

by making no written anfwer, or if the parties in the course of pleading conteft certain facts, their truth is then to be ascertained by the examination of witne fles. The court may either try the facts themselves, or they may appoint a committee for that purpose, who may examine the witneffes and report the evidence to the court. This mode was borrowed from the practice of the general aflembly, when they acted as a court of equity, and in long intricate cafes, where there is a great number of witneffes, it will be found very convenient. The committee are to be confidered in the nature of a jury, their report is to contain the ftate of facts as appears from the teftimony of witneffes, and on fuch report, the court will ground their decree. But the most ufual practice is for courts to hear and examine the witneffes, and decide upon the facts in the fame manner as they determine iffues, when fitting as a court of law.

The rules with respect to the admiffion of witneffes, and the taking depofitions,are the fame in chancery, as at law, excepting in two inftances: parol evidence may be admitted to controul a written contract under certain circumftances: and the plaintiff in his petition may call upon the defendant to difclofe facts, which refts folely in his knowledge.

1. The rule of law is, that every written contract must be confrued according to the face of it, and that parol evidence cannot be admitted to contradict, controul, or vary its operation: but equity in certain cafes will relieve againfi the rigor of this rule of law. In treating of contracts, I have explained this fubject: it will be fufficient to remark here, that parol evidence is admiffible to fhew an

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omiffion, or a mistake in a written contract, or a fabfequent agreement, which fets afide the former; and a paroi difcharge of a written contract, is good in equity.

2. Where the facts reft in the knowledge of the party, and the. plaintiff has no difinterested proof, he may appeal to the confcience of the defendant, cite him before a court of equity, and call upon him to difclofe on oath, what he knows refpe ting the fubject. If the defendant fhould refufe to appear and difclofe on oath, the facts ftated in the petition would be taken pro confeffo, or if ou difclofure he should fubftantiate the facts, courts might proceed to pass fuch decree, as they would if the facts had been proved by difinterested tellimony. The defendant cannot be compelled to dif clofe on oath, any facts which tend to criminate himfelt, or fubject him to any punishment or penalty; nor is he bound to teftify ref pecting any matter which does not belong to the jurifliction of a court of equity. When the plaintif appeals to the co fcience of the defendant, he will be bound by his telimony, and will not be admitted to contradict it or impeach his character.

Bills of difcovery are frequently brought in England, to dif cover facts refting in the knowledge of the defendant, or deeds, or other writings in his power: and feek no further relief in equity, than the difcovery and delivery of the deeds: which is done, to take advantage of fuch difcovery in an action at law. I have never known any fuch bills to be brought in this itate: but I apprehend that they would be fuftained by a court of equity,

In England it is a frequent practice to grant lajmations, to flay proceedings at law, while a bill is pending in chancery for the fa ne mitter and thing. In this ftate fach injan tions are rarely neceffà ry, for as every court has an equity, as well as a law fide, it will commonly be the cafe, that where a fuit at law is pending, and the defendant has occafion to apply in chancery, he may ufudly prefer his petition to the equity file of the court, where his action is pending, who will if it had beca reafonable to have granted an injua tion, order the cute to be delayed till the fait in equity is determined. So if the fit at law is before a difererat court from

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the fuit in equity, the pendency of a bill will be confidered as fufficient reafon to authorife the court to delay the caufe. In cos'è quence of this injunction to stay proceedings at law, pending the bill in equity is rarely neceflary: but if it fhould be necellary, courts of equity have power to grant injunctions for that purpose.

CHAPTER TWELFTH.

OF DECREES IN EQUITY.

WHEN the court have investigated the facts contested by the

parties, either by examining the witneffès themselves, or by a committee, whofe report is returned to court, if the facts stated in the petition are not proved, or if they are not fuch as entitle the party to relief prayed for, or if the defendant rebuts the equity of the plaintiff's claim by matter fet up and proved by him, the court will determine that the petitioner fhall take nothing by his petition but if the facts are fubflantiated by witneffes, and contain fufficient equity to authorife the interpofition of the court, they proceed to pafs a decree.

A decree is the final fentence, or order of court, pronounced on a hearing of all the points in flue, and determining the right of all the parties in the fuit according to equity and good confcience. It is the fame in equity, as a judgment in a court of law. The decree should count upon the petition and pleadings, if any, and fhould state all the facts which are found to be true by the court, and which are the grounds of the decree. Where the court decree the payment of a certain fum of money, they grant execution in the fame manner as a court of law. Where they decree the performance of a specific act, or enjoin the refraining from a particular act, it is done under a certain penalty. Thus where the court find that the petitioner has an equitable right to land, to which the defendant has the apparent legal title, they may decree that the defendant fhall releafe all his right and title, to the plaintiff, within a certain time, under a certain penalty. If the plaintif is ia Foffeffion and the defendant has brought his action, the court may alfo lay an injunction on the defendant, and all others, not to proceed at law by which they can effectually fecure the plaintiff in

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the poffeffion of land, to which he has a right. But if the defendant is in poffeflion of the land in queftion, the court can only decree

that he fhall convey to the plaintiff under a certain penalty; if he refufes to convey, they cannot put the plaintiff into poffeffion of the land, but must leave him to a recovery of the penalty, as a compenfation for damages. So that in all cafes, tho courts of equity are faid to have the power to enforce the fpecific performance of a contract, yet they cannot do it by putting the party into the poffeffi on of the thing to which he is entitled, and which he would obtain ou a specific performance: they can only enforce their decrees by penalties. If the defendant has property, the operation of a penalty may be fufficiently fevere, to induce him to comply with the decree; but if he has not property, he is out of the reach of penalties. It therefore appears, that there is a defect in the power of a court of chancery, to enforce their decrees in this respect they ought to be enabled in all cafes where they find the plaintiff has equitable right to the poffeffion of a thing, especially of lands, to iffùe an execution, commanding and impowering the fheriff, to put him in actual poffeffion, and to turn out the defendant, in the fame manner as courts of law can in actions of diffeifin, where the legal title is found to be in the plaintiff.

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Courts of equity have right to grant injunctions, to reftrain parties from bringing fuits at law, from proceeding in fuits that are pending, or to enforce the execution of a judgment already rendered but they cannot take away the legal right, or fet afide and vacate the judgment. But as it would be improper for inferior to controul fuperior juridictions, it is provided that all fuits for relief in equity, against any judgment given, or caufe depending at law, in the fuperior court, fhall be brought to the fuperior court, and not to the courts of common pleas.

If the defendant fails to do the act, which he is decreed to perform, or difregarding the injunction, does the at which he was prohibited to do, by which he incurs the penalty, a writ of scire facias may be brought on the decree, to recover the fum forfeited; and tho it be for the recovery of a penalty, yet as it is incurred by the contempt of a decree of the court, they will never relieve

Statutes 281.