A treatise on the practice in the Supreme court of the state of New York, in equity actions and special proceedings, with an appendix of forms, adapted to the code of procedure ...

Front matter

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Preface

The object of the present treatise is to present a connected view of the practice ia the Supreme Court of this state, in actions of an equitable nature — that is in that class of actions which, under the practice as it existed prior to the Code, would have been prosecuted by suit in the Court of Chancery.

No treatise of the kind, devoted exclusively to this branch of the practice, has been attempted since the Code went into effect. The works of Mr. Monell and Mr. Whittaker professedly treat of the proceedings in aU kinds of civil actions, those of equitable, as well as those of common law origin ; but, as was unavoidable from the nature of the subject, the proceedings ia the latter class of actions are those which are most prominently kept in view by these authors, and the practice in that class of suits of which the Court of Chancery heretofore entertained jurisdiction, is not so fuUy considered, or even attempted to be sketched separately, or in detail. Hence, in a great variety of legal proceedings in cases of this description, the student, and sometimes even the experienced practitioner has been obliged to consult and rely upon former works on the practice in a court that is now abolished by law, and by comparing the principles and rules which governed in that court, with the provisions of the Code, to ascertain the correct mode of procedure under the present system. This has been especially the case in regard to proceedings for obtaining an injunction, for the appoiutment of a receiver, and other interlocutory applications; also in proceedings upon interlocutory or decretal orders, references to take

IV PREFACE.

and state accounts, to sell estates and the like ; interlocutory decisions and orders reserving further directions, bringing on the cause for hearing upon the same, and the rendering of final judgment thereon. In these cases and many others arising in a suit of an equitable nature, the former practice in the Court of Chancery, except where the same is altered or modified by the Code, furnishes the rules which regulate and control the proceedings. And no correct, or even general notion of the subject can be obtained, except by a careful study and analysis of this former, and in some respects, obsolete practice, and by the application of such of its principles as are not abrogated to the new system established by the Code.

This the author has attempted to do in the present volume. His own judgment in regard to the utility of such a work has been confirmed by the opinions of many experienced professional friends, which induce the beUef, that, however defective may be its execution, yet the general plan adopted in the treatment of the subject is that of a work which is calculated to supply a want of the profession. A former work, treating upon the system of pleading in civO. actions, as modified by the Code of Procedure, in a manner entirely similar to the present, has been received by the profession, ia this and other states which have adopted our Code, with far greater favor than the author could have ventured to anticipate or even hope. And he is therefore the more encouraged to submit the result of his present labors to his professional brethren.

The work is divided into chapters and sections, each chapter being designed to embrace some general head, and each section some special branch of the practice. The proceedmgs in an equity suit are traced from their commencement down to their final determination ia the entry of judgment ; and subsequent to the judgment, the enforcement of the same, by the process of the court, and the appeal therefrom, as well as from interlocutory orders to the general term. As a necessary and essential branch of the subject, without which it could not be fuUy presented, the work contains a brief analysis of the principles and rules of pleadmg in equitable actions. That branch of the practice,

PREFACE. V

however, is treated in a general way, and without entering upon those special details, or that full review of cases which the author's former work, devoted exclusively to that subject, embraces.

In the general arrangement of the matter of this volume, as weU as in the manner of treating particular branches of the subject, the author has availed himself of the valuable treatise of Mr. Baebouk, on the practice in Chancery, so long and so deservedly a standard authority in our courts. It was his original intention to follow out the plan of Mr. Baeboue in full, and to present in a second volume a sketch of the practice in particular kinds of equity actions, as modified by the Code, such as foreclosure suits, actions for the partition of real estate, for divoree and the Uke ; also in special proceediags, such as for the sale of infant's real estate, the appointment of committees of lunatics, &c., and to accompany the whole with an appendix of precedents. This part of the work, however, is for the present abandoned, with the expectation of supplying it at some future period should it seem to be called for, and should the author be able to command, from his professional

avocations, the necessary leisure to prepare it.

G. V. S.

Teoy, August, 1860.

Introduction To The Second Edition

In presenting to the profession a new edition of this Treatise, a word of explanation may not be inappropriate.

In the preface to the first edition of this work — published something more than two years since — the author remarked that it was his original intention to follow out the plan of Mr. Barbour (in his work on Chancery Practice) in full, and to present, in a second volume, a sketch of the practice in particular kinds of equity actions, as modified by the Code, such as foreclosure suits, actions for the partition of real estate, for divorce, and the like ; also in special proceedings, such as for the sale of infants' real estate, the appointment of committees of lunatics, &c., and to accompany the whole with an appendix of precedents. But that part of the work was then abandoned, with the expectation of supplying it at some future period, should it seem to be called for, and should a convenient opportunity offer.

Encouraged by the favorable reception of his first volume, the author is induced to hope that the present edition, composed of the firsLjEoLume as originally puhr, lished, and of a second. JsMch^ comprises that portion of

IV INTRODUCTION.

his original plan then reluctantly abandoned, will not be unacceptable to the profession.

The first volume of the present edition treats of the practice and proceedings generally in an action of an equitable nature from its commencement to its close, including provisional remedi-es, and incidental proceedings, as well as appeals to the court of review at general term. Some slight emendations, growing out of subsequent decisions, might no doubt have been profitably made, but it has been deemed best on the whole, to present that volume, in the present edition, without altera- _ tion, in order to enable those who have it in their libraries to complete the set by the additional volume merely, which is printed uniform, and in all respects to correspond with the first.

The second volume (now presented for the first time to the public) treats of the practice in particular equity actions, and those of most frequent occurrence in our courts, to wit: actions for partition, actions for the foreclosure of mortgages, actions by judgment creditors, actions for an accounting, and actions for divorce. Also of a special equity proceeedings, not taken by action, such for example, as relate to cases of guardianship, appointing committees of lunatics, the sale, partition, &c., of the real estate of infants, lunatics, religious corporations, proceedings against corporations in equity, and the like. And the whole is accompanied by a full collection of forms applicable to each action and proceeding treated of in the volume, and arranged under their appropriate heads.

Many of the forms now presented — especially those classed under the heads of actions by judgment creditors.

-INTRODUCTION. V

actions for accounting, proceedings against corporations, &c., are entirely new, the author having been able to find no precedents to meet such cases. He has, however, in this portion of the work availed himself to some extent of the industry of his predecessors, and acknowledges much valuable assistance derived from the labors of Mr. Barbour, Mr. Monell and Mr. Carey in their works on Practice, and Mr. Edwards in his late work on the law of Referees. Much care has been bestowed upon this part of the work with the intention of making it in all respect an accurate, and reliable, as well as a convenient book of practical reference. It is not, however, without much mistrust that the author submits the result of his labors to his professional brethren, with the hope that it may receive at their hands a favorable consideration.

G. V. .S

Tkoy, Odoher, 1862.

CONTENTS,

Chapter I

fflSTOET, GENERAL JURISDICTION, FORMER ORGANIZATION AND COURSE OF PROCEEDING IN COURTS OF EQUITY IN THIS STATE, AND CHANGES THEREIN WHICH RECENT STATUTES AND THE LATE CONSTITUTION HAVE EFFECTED.

Section I. History, former organization, and general jurisdiction of courts

of equity in this state, 1

II. Proceedings in an equity suit under the former practice. 8

m. Changes in equitable actions which recent statutes and the late

Constitution have effected, 15

IV. Equitable actions, how distinguished from those which are of

common law origin, 23

Chapter II. Proceedings On The Part Of Plaintiff In Commencing

ACTIONS.

Section I. Of certain preliminary proceedings, such as appointing guardian

for infant, filing security for costs, &c., 26

n. Issuing of summons and filing notice lis pendens, 32

m. Personal service of summons and proof of same, 42

IV. Service of summons by order of a judge and by publication and

proof of same, 47

Chapter III

FURTHER PROCEEDINGS ON THE PART OP PLAINTIFF PREVIOUS TO THE defendant's ANSWER.

Section I. Discovery of books and papers to enable plaintiff to frame his

complaint, 55

VIU CONTENTS.

PAGE.

Sec. II. Complaint, and how framed as to title and parties, 66

III. Complaint, and how framed as to statement of facts, and prayer

for relief, °9

IV. Verifying, amending, filing and serving complaint, 108

V. Obtaining injunction or other provisional remedy, 119

Chapter IV

JUDGMENT ON FAILURE TO ANSWER, OR TO APPEAR ON THE TRIAL, AND JUDGMENT BY CONSENT,

Section I. Judgment on failure to answer, 125

II. Judgment on failure to appear at the trial, 140

III. Judgment by consent, 143

Chapter V. Proceedings On The Part Of The Defendant Before Answer

OR DEMURRER.

Section I. Obtaining copy complaint, and motion to dismiss summons for omission to serve complaint, and to set aside summons for

other irregularity, 146

n. Obtaining security for costs, 151

III. Appointing guardian for infant defendant, 152

IV. Offer of defendant to compromise, 156

V. Inspection of writings, and procuring production of books,

papers or accounts, and demand of particulars, 158

VT. Motion to correct complaint by striking out redundant or irrelevant matter, or to make complaint more definite, 161

VII. Motion to dissolve injunction or ne exeat, 172

VIII. Obtaining further time to demur or answer, 174

IX. Proceedings to answer after time has expired, or after judgment by default, 178

Chapter VI. Further Proceedings By Defendant Before Notice Of

TRIAL.

Section I. Demurrer and proceedings thereon, 283

II. Answer and counterclaim, jgy

III. Verifying, amending, fihng and serving answer, 219

IV. Cross complaint and proceedings thereon, 223

CONTENTS. IX

Chapter VII

FUETHEE PEOCEEDINGS ON THE PART OF PLAINTIFF SUBSE- QUENT TO ANSWEE, AND BEPOEE NOTICE OP TEIAL.

PAGE.

Section I. Discontinuing suit, amending complaint after answer, and obtaining time to reply, 228

II. Objection to demurrer or answer for irregularity, 233

III. Motion to correct answer for uncertainty or redundancy, 235

IV. Motion to satisfy part of demand admitted, 236

V. Motion to strike out sham or irrelevant answer, and for judgment on frivolous answer or demurrer, 240

VI. Demurrer and reply to answer, and proceedings incident thereto, 248

Chapter VIII

PEOCEEDINGS ON THE PART OF EITHER, OR BOTH PARTIES, AFTER ISSUE JOINED AND BEFORE TEIAL.

Section I. Motion to change place of trial, 256

II. Motion for issue to be tried by jury, 261

III. Motion to compel the deposit in court of money or other pro-

perty held in trust, 268

IV. Obtaining admission of documentary evidence, and proceed-

ings for obtaining inspection of same, . 272

V. Proceedings to perpetuate testimony, 277

VI. Proceedings to examine witnesses de bene esse, 280

VII. Proceedings to examine witnesses out of the state on commission, 283

VIII. Examination of parties before trial, by adverse party, 297

IX. Abatement and revivor and substitution of parties on motion, 302 X. Supplemental pleading, and substitution of parties on supplemental complaint, ' 312

CHAPTER IX. FUETHEE PEOCEEDINGS BEFOEE TELiL

Section I. Motion to dismiss complaint for want of prosecution, 319

II. Motion to refer cause, to hear and determine, 323

III. Noticing cause for trial and putting on calendar, 328

IV. Other incidental proceedings preparatory to trial, 332

B

X CONTENTS.

Chapter X

PEOVISIONAL EEMEDIES. INOXTNCTIONS.

PAHB.

Section I. Different kinds and uses of preliminary injunctions, 337

II. In what cases granted, 339

III. How applied for and allowed, 354

IV. Service of injunction and effect of same, 364

V. Dissolving, vacating and modifying injunction, 369

VI. Reviving and continuing injunction, 373

CHAPTER XL

PEOVISIONAL EEMEDIES CONTINUED. EECEIVEES.

Section I. Nature of the ofBce, and general powers and duties of a receiver, 374

II. In what cases appointed, 383

III. Who may be receivers, 398

IV. Appointment, when and how made, 401

Chapter XII

PEOVISIONAL EEMEDIES CONTINUED. NE EXEAT.

Section I. Nature and use of writ ; in what cases, against whom, and on

what demands allowed, 409

II. Application for writ; how granted, and how and when discharged, 412

Chapter XIII. Othee Inteelocutoet Pe0ceedin6s

Section I. AfiBdavits, 41g

II. Petitions, 422

III. Motions, and orders to show cause, 426

I V_ Interlocutory orders, 440

Chapter XIV. Heaeing And Teial Of The Cause

Section I. Of certain incidental matters pertaining to the trial, 462

II. Trial by the court of an issue of law and of an issue of fact, . . 472

III. Trial by referees, ^gc

IV. Trial of issue by jury, and subsequent proceedings thereon to

judgment, 5qq

CONTENTS. XI

Chapter XV

INTEELOCUTORY OR DECRETAL ORDERS MADE ON THE. TRIAL, AND PROCEEDINGS THEREON TO FINAL JUDGMENT.

PAGE.

Section I. Decretal order reserving further directions, and order of reference thereon, 512

II. General course of proceeding on reference, 522

III. Reference to take and state accounts, 531

IV. Reference to make inquiries, 541

V. Reference to sell estates, or adjust other matters before final

VI. Referee's report on decretal order, form, nature and use of, ... 560 VII. Exceptions to report, when and how taken and brought to

hearing, 565

Vni. Final hearing of the cause on further directions upon the coming

in of referee's report, 573

Chapter XVI. Final Judgment

Section I. Nature, uses and kinds of final judgment, 578

II. Form of, and how drawn up and settled, 585

III. Costs, when allowed, and how taxed and entered in the judg-

ment, 587

IV. Entry of judgment on trial of the whole issue by the court, by

referees, or on the finding of a jury, 607

V. Entry of judgment on interlocutory decision, and subsequent

report of referee, 611

VI. Rectifying and amending judgment, and vacating same for

irregularity or other cause, 613

Chapter XVII. Judgment, How Enforced And Carried Into Effect

Section I. By execution, 618

II. By process of contempt, 623

III. By writ of assistance, injunction, sequestration, etc., and by re-

ceiver or referee to carry judgment into effect, 637

IV. Execution of judgment against corporations, absent defendants,

heirs, devisees, etc., 645

Sll CONTENTS.

Chapter XVIII. Appeals

PAGE,

Section I. General rules applicable to and regulating appeals, 651

If. Appeal from interlocutory order, 669

III. Appeal from order or judgment in special proceedings made at

special term, or by a county court or a county judge, 675

IV. Appeal from surrogate's decision or decree, 683

V. Appeal from final judgment in an equity action, 697

Chapter I

OF THE HISTORY, GENERAL JURISDICTION, FORMER ORGANIZATION AND COURSE OF PROCEEDING IN COURTS OF EQUITY IN THIS STATE, AND THE CHANGES THEREIN WHICH RECENT STATUTES AND THE LATE CONSTITUTION HAVE EFFECTED.

Section I. History, former organization and general jurisdiction of courts of equity IN THIS STATE.

II. Proceedings in an equity suit under the former practice.

III. Changes in equitable actions which recent statutes and the late con-

stitution HATE effected.

IV. KquiTABLE actions, how distinguished from TH0S5 WHICH ARK OF OOMHOM

LAW ORIGIN.

SECTION I,

HISTORY, FORMER ORGANIZATION AND GENERAL JUKISMCTION OF COURTS OF EQUITY IN THIS STATE,

The principles which govern our equity system, as well as the mode of procedure and practice therein in our courts, as formerly organized, are derived mainly from the equitable jurisprudence of England.

It would be beyond the scope of this work to trace the origin and growth of that system, or attempt to explore the sources of jurisdiction which the English Chancellors exercised from the earliest periods. It is sufficient to observe that the existence of the Court of Chancery, as a separate court, it is thought, can be traced back as far as the reign of Richard I, towards the close of the twelfth century.^ Although it was not until nearly two centuries later that its proceedings began to be kept with some degree of care and regularity.

Maddox Hist. Exchequer, 131.

The study of the civil law had previously been introduced into England, but was mainly confined to the clergy, from which class the early Chancellors were taken. Hence, not only the principles pervading the civil law, but also the pleadings, practice, and modes of procedure peculiar to that celebrated code of jurisprudence, became engrafted upon, or perhaps more accurately speaking, became the foundation stone of the English Chancery system.

The common law was of a different and more exclusive origin. It adhered to its own forms, looked with jealousy upon the everexpanding jurisdiction exercised by the Chancellors, and refused to accommodate itself to the liberal maxims and pliable modes of procedure which gave efficacy to that jurisdiction. And thus, though the two systems wei'e nearly co-eval, and grew side by side together, a marked line of distinction divided them, and they became and continued, two separate systems of jurisprudence, differing from each other in some important respects in the principles in which relief was administered in their respective tribunals — differing widely in the kinds of relief administered, — and differing totally and radically in the mode and forms under which that relief was administered.

These forms and modes of procedure, comprising what we classify under the general term of practice, constituted one of the most distinguishing characteristics of equitable relief. Drawn in the main from the civil law, or from the ecclesiastical courts, which themselves divided them from the civil law, they were moulded into shape and consistency by a long line of able Chancellors in England. They had become a well defined and perfectly arranged, though somewhat complex, system at the time of the colonization of our country, and were inherited as part of what was regarded as the necessary machinery for a proper and correct administration of justice. The practice, as it was established in the English Courts of Chancery, became the model which our own courts adopted, first under the Colonial, and afterwards under the State government.

The institution of a Court of Chancery in this state is to be traced as early as the year 1683, being the next year after the people were first admitted, under the English government, to participate in the legislative power. An act was then passed to

FOEMEE OEGANIZATION. 3

settle courts of justice, which provided that there should be a Court of Chancery within the province which should have power to hear and determine all matters of equity, and should 'be esteemed and accounted the Supreme Court ; that the governor and council should be such court, and hold and keep the same ; and that the governor might depute and nominate, in his stead, a Chancellor, and be assisted by such other persons as should be necessary. 1 With some opposition on the part of the General. Assembly, the court continued to exist in this form down to the year 1711; at which time, without remodeling the court, or interfering with its mode of practice or jurisdiction, a law was passed empowering the governor to act as Chancellor, and from that period down to the Revolution the court continued under that organization, and all proceedings in Chancery were before the governor alone.

The first State Constitution, framed in 1777, adopted such acts of the Colonial Legislature as formed the law of the state on the 19th April, 1775, and as were not repugnant to that instrument. Without undertaking to organize or define the jurisdiction of the Court of Chancery, it treated it as an existing tribunal and separated the office of Chancellor from that of Grovernor. Under this Constitution the first Chancellor was appointed, and the office continued to exist until finally abolished by the Constitution of 1846.2

The Constitution of 1821, like the original Constitution of the state, neither organized nor attempted to define the jurisdiction of

' Appendix No. 4 to the Revised Laws. 1 Hqffman's Ch. Pr., 8.

2 The following is a list of the Chancellors of the State of New York with the date of their appointment, from the adoption of the first constitution down to the time when the office of Chancellor was abolished.

Robert R. Livingston appointed Oct. 17th, 1777.

John Lansing appointed Oct. 21st, 1801, in place of Chancellor Livingston, resigned.

James Kent appointed Teb. 25th, 1814, in place of John Lansing.

Nathan Sandford appointed Jan. 27th, 1823, in place of James Kent. Entered on the duties of his office Aug. 1, 1823.

Samuel Jones appointed Jan. 26th, 1826, in place of Nathan Sandford.

Reuben H. Walworth appointed April 13th, 1828, in place of Samuel Jones, appointed Chief Justice of the Superior Court of New York.

the Court of Chancery. It treated the Chancellor as an officer in being, and the jurisdiction of his court as already established and defined by law. The fifth section, article fifth, declares that such equity powers may be vested in the circuit judges, or in the County Courts, or in such other subordinate courts as the Legislature may by law direct, subject to the appellate jurisdiction of the Chaucellor. Under this authority, the Legislature accordingly proceeded to define the power and jurisdiction of these subordinate officers, and completed the organization of the court, as it continued to exist in this state down to the time it was abolished. The jurisdiction and power of the Court of Chancery was declared to be co-extensive with that of the high Court of Chancery in England, with the exceptions, additions, and limitations, created and imposed by the Constitution and laws of this state. '

The whole power of the courts was vested in the Chancellor.^ He exercised an original jurisdiction in every case co-extensive with the state ; and an appellate jurisdiction where a concurrent power was vested in the vice-chancellor.

The circuit judges in each of the eight circuits into which the state was divided, exercised, under the name of vice-chancellors, concurrently with the Chancellor, within their respective districts, and exclusive of any other circuit judge, all the powers of the Chancellor in the following cases : When either the cause or matter arose within the circuit ; or the subject matter in controversy was situated therein; or the defendants or persons proceeded against, or either of them resided therein ; subject to the appellate jurisdiction of the Chancellor. ^ The Chancellor was authorized, not only to review any decisions of the vice-chancellors on appeal, but also to withdraw a cause from them when it was ready to be set down for a hearing and hear it himself. * He might also refer to them the hearing or decision of any motion or of any cause set down for hearing before him; and might require them to execute such other powers and duties in relation to any matter in the Court of Chancery as he should from time to time

FORMER ORGANIZATION. 5

direct; ' and might by general rules prescribe the time and manner in which proceedings might be had, and causes brought to a hearing before them, and the cases in which a rehearing might be had before them. ^

The officers of the court were masters, examiners, a register, assistant register, clerks, sheriffs, solicitors and counselors. Of these it is only necessary here to speak of the masters and examiners. Both were very important officers to the organization of the court, and to the prosecution of a suit or proceediag in equity. They were appointed by the governor by aud with the consent of the senate. It- was the duty of the former to hear and determine or report to the court upon such interlocutory matters in suits or proceedings as might by order be referred to them ; and of the latter to take and reduce to writing all the oral testimony or proof, as it was called, in an equity suit upon which the cause was to be heard by the Chancellor or one of the vice-chancellor's. Both these offices were abolished by the Constitution of 1846. The duties of the one were thereafter discharged by referees appointed by the court in each particular case, and named in the order directing the reference ; the other was superseded by the provision which required testimony in equity cases to be thenceforth taken in like manner as in cases at law, ^ that is orally, in open court, before the judge. The office of Chancellor was also abolished by the Constitution "of 1846, from and after the first Monday of July, 1847 ; * and the jurisdiction and power of the court were vested in the Supreme Court.

It was declared as the fundamental law of the state that there should be a Supreme Court having general jurisdiction in law and equity. ® Instead of the Chancellor and one vice-chancellor in each of the eight circuits, four j ustice of the Supreme Court were to be elected in each of the eight judicial districts into which the state was divided, ® who, in addition to their common law powers, were to exercise all the original equity powers which had been

vested in the Chancellor and vice-chancellors; ^ and it was declared that the Legislature should have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as it had theretofore possessed. ^

The act of the Legislature, known as the Judiciary act, passed May 12th, 1847, was designed to give effect to and put into practical operation these radical changes in the organization of the courts. The sixteenth section of article third provides that the Supreme Court organized by this act shall possess the same powers and exercise the same jurisdiction as is now possessed and exercised by the present Supreme Court and Court of Chancery ; and the justices of said court shall possess the powers and exercise the jurisdiction now possessed and exercised by the justices of the present Supreme Court, Chancellor, vice-chancellor and circuit judges, so far as the powers and jurisdiction of said courts aud officers shall be consistent with the Constitution and provisions of this act ; and all laws relating to the present Supreme Court and Court of Chancery, or any court held by any vice-chancellor, and the jurisdiction, powers and duties of said courts, the proceedings therein, and the officers thereof, their powers and duties, shall be applicable to the Supreme Court organized by this act, the powers and duties thereof, the proceedings therein, and the officers thereof, their powers and duties, so far as the same can be so applied and are consistent with the Constitution and provisions of this act. ^

By the twentieth section of article third of the same act, special terms of the Supreme Court were directed to be held for the purpose, among other things, of taking testimony (which by the Constitution was required to be taken orally, before the judge in court), and hearing and determining suits and proceedings in equity, at which termb, orders and decrees in suits and proceedings in equity might be made; and all such suits and proceedings were required to be first heard and determined at a special term unless the justice holding it should direct the same to be heard at a general term. In case any suit or proceeding in equity should be heard and

• Wilcox V. Wilcox, 4 Kern., 580. •■' Const. 1846, art. 6 5 5

FORMER ORGANIZATION. 7

determined at a special term, either party might apply at a general term for a re-hearing. ^

It is unnecessary, in this place, to notice the further provisions of this important act, with the amendments thereto passed in December of the same year. They will be considered so far as they aifect the present practice in their proper connections in the course of this work. It is sufficient to observe here, that while the Constitution and the Judiciary act abolished the old Court of Chancery and transferred its jurisdiction and powers to the new Supreme Court, they did not in any considerable degree work a change in the customary forms of procedure under which equitable relief was administered. Though the same court had both common law and equity powers, and the same judge administered both kinds of relief, yet the forms under which these powers were executed and relief administered, were in reality kept as separate and distinct as they had been under the old Chancery system. Suits in equity were still by bill and subpoena ; the defense by plea or answer, and the proceedings to a hearing and decree nearly the same as formerly, except the -taking of the testimony orally before the judge. Instead of entitling the bill, " In Chancery before the Chancellor," or " before the vice-chancellor