Equity Cases

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Researching Court Records

This article is part of a series.
Overview of Court Records
Court Procedures
Equity Cases
Divorce Actions
Types of Court Records
List of Court Record Types
Researching Court Records
Selected Proceedings and Courts
Justice of the Peace Courts
List of Useful Court References

This article originally appeared in "Court Records" by Sandra Hargreaves Luebking, FUGA, Loretto Dennis Szucs, FUGA, and Arlene H. Eakle, Ph.D. in The Source: A Guidebook to American Genealogy

Common equity cases are probate disputes, estate divisions, divorce proceedings, adoptions, dissolution of partnerships, and other cases involving property rights.

The Bill (Declaration or Petition)

The action begins by filing a bill stating the plaintiff's case and praying the chancellor (judge) for relief. The bill must state every fact entitling the plaintiff to relief. After printing became more common, many courts required these bills to be printed and presented in court as bound volumes.

Filing and Service

The bill is filed with the clerk of the court, and a copy is served on the defendant as prescribed by statute or rules of the court. A proof of service (return) must appear on the back of the record. At this point, the bill may be tested to determine if it is sufficient to entitle the plaintiff to a remedy at equity. This is called a demurrer (meaning to delay or stay).


The answer, setting up every circumstance the defendant will use, must be filed within the time stated. If there are several defendants, each may file an answer, although one will suffice. If the defendant fails to file or admits all the allegations, judgment by default or decree pro confesse (judgment because of confession) will be given. The case ends here.

Hearings and Proof

Equity trials are generally conducted without a jury. The chancellor has the power to decide both questions of fact as a jury and questions of law as a judge. The rules of evidence applicable to suits at law also apply, but the proceedings are more direct. Frequently, in cases without serious dispute over the facts, no oral testimony is introduced. The matter is argued to a conclusion upon the allegations set forth in the bill and answer. If proof is necessary, it is usually brief. There are four common methods of presenting proof:

  1. Depositions. Obtained by written questions or through oral examination by counsel, summarized and written. Such depositions are valuable where family members have moved from their birthplaces to unknown places, for their residences are recorded.
  1. Reference to special examiners (masters). This is a convenient method where the facts are complicated or where several hearings are necessary. The chancellor commissions a member of the bar to determine the facts of the case and make a report, including testimony and findings on the facts. The chancellor uses the report as a basis for the decree but is not bound to accept the findings of the master.
  1. Jury trial. Generally, equity litigants have no right to a jury trial, though the court may submit questions of fact to a jury if it chooses. The chancellor is not bound by the jury's verdict. In some states, however, the right to a jury trial in chancery cases is given by constitution or statute and can be set aside only for reasons that would justify a judge in setting aside a verdict in any law action, as, for instance, where the verdict was contrary to the evidence.
  1. Hearings before the court take place when the trial judge permits litigants or their legal representatives to present oral or written arguments.


A decree is the judgment or sentence determining the rights of the parties to the suit. A decree is final when it decides the whole case, reserving no further questions for the future judgment of the court. A decree dismissing a bill or ordering specific performances of a contract would be final. It is interlocutory when it reserves any question for future judicial consideration-for instance, ordering the delivery of property to a receiver or granting a temporary injunction.

A decree in equity is generally easier to enforce than a judgment in law. When the chancellor orders a person to execute a deed, perform a contract, account for trust funds, cancel a mortgage, or any of the various things it may order, the person must comply or be subject to fine or imprisonment. Disobedience to the order is contempt of court. All the machinery of the government, including the army, may be used to enforce a decree of equity.

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