THE NEXT STEP BEYOND EQUITY- THE DECLARATORY ACTION EDWIN BoRcARD* I T IS a commonplace that the equitable jurisdiction of the Court of Chancery owes its origin (a) to the inflexibility and rigidity of the common law; (b) to the inelasticity of the common law procedure; and (c) to the ineffectiveness or inadequacy of the remedies provided by the common law.' It is not so well known that the same limitations, especially after the merger of law and equity, explain the necessity for relief from the restric- tions of equity. Whereas it was intended that equity should be flexible, elastic, and effective in meeting all situations (thus, the Constitution of 1787 itself assumes that cases in law and equity exhaust the legal reservoir of controversies and remedies), the fact is that equity has with the passage of time become crystallized as an established system, and has proved as inflexible and inelastic in its own field aswas the common-law system in its restricted area. This was not the intention of those who founded the sys- tem. In the time of Edward I and III2 it was believed that the chancellor, * Justus S. Hotchkiss Professor of Law, Yale University. I Eaton, Handbook of Equity Jurisprudence § 2 (Throckmorton's ed. 1923); Barney, Equity and Its Remedies 3 (i915);Clark, Principles of Equity § 5 (1937); Maitland, Equity: A Course of Lectures, Lectures I and II (1936). Prior to the reign of Edward I, judicial relief in personal actions depended upon whether the plaintiff could fit his case into debt, covenant, trespass, detinue, or replevin. A statute in 1285 (3 Edw. I, c. i,§ 24) for the purpose of expanding the common law added trespass on the case, from which trover and assumpsit later developed. These remedies were not broadly construed by the common-law judges. The common-law courts atone time themselves attempt- ed a rude equity. 2This sovereign, about the middle of the fourteenth century, promulgated an ordinance which referred to the Chancellor, or keeper of the Privy Seal, all cases not of the common law deemed "of grace." The jurisdiction thus conferred was not restricted by conventional forms. Says Spence: "From this time suits by petition or bill, without any preliminary writ, became a common course of procedure before the Chancellor as it had been in the council. On the peti- tion or bill being presented, if the case called for extraordinary interference, a writ was issued by command of the Chancellor, but in the name of the King, by which the party complained against was summoned to appear before the Court of Chancery to answer the complaint, and abide by the order of the Court." i Spence, The Equitable Jurisdiction of the Court of Chan- cery 337-38 (1846). Mr. Spence approves the establishment of a separate court of chancery where procedure was not limited by rigid forms, since he thinks that the equitable doctrines would have perished but for that fact. He says: "Had not the Clerical Chancellors resisted with effect the introduction of the common law system of pleading, much of the utility of the court would have been destroyed; this is one of the many advantages that resulted from the court THE UNIVERSITY OF CHICAGO LAW REVIEW who already had a common-law jurisdiction and dispensed extraordinary legal remedies, would mould his decrees in accordance with the needs of petitioners, and that the system would always remain flexible and elastic. But, like all legal systems which lean on remedies,3 the system became technical and rigid. By importing this inflexibility and rigidity into equity, notwithstanding its more liberal procedure, the very purpose of creating equity was defeated, as Roscoe Pound so ably shows in one of his notable 4 articles. Mr. Pound attributes this decadence to five separate operating agen- cies: (i) the introduction of the common-law theory of binding precedents and resulting case-law into equity; (2) as a consequence, the crystalliza- tion of equity, culminating under Lord Eldon; (3) the adoption of equi- table actions and equitable defenses in the common law; (4) the conjunc- tion of legal and equitable jurisdiction in the same courts, so general in America;5 and (5) the abolition of the distinction between law and equity having been founded by persons who took for their guide the principles of general jurispru- dence, and looked only to the attainment of what they considered to be substantial justice." Ibid., at 376. 3 When equity became a system, stereotyping the grievances it would cure and the relief it would afford, it was not greatly different from beginning suit by writ. We leave aside the subpoena, by which the defendant was summoned to appear in court. The equitable maxim, "where there is a right there is a remedy," had meaning when decrees were moulded to the needs of the petitioner, even though limited by antiquated conceptions of justiciability. But when the equitable remedy became technical and rigid, the maxim lost its beneficent purpose. "Rights" were determined by the criterion whether remedies existed. That made the maxim fairly useless, although historically the rights of the cestui que trust and of the mortgagor are among the most striking effects of equity's expansion under the influence of the principle. Clark, op. cit. supra, note i § i8. 4 Pound, The Decadence of Equity, 5 Col. L. Rev. 20 (r905). Compare the denial of the obsolescence and rigidity of equity in Walsh, Is Equity Decadent?, 22 Minn. L. Rev. 479 (938). Leonard J. Emmerglick, in his valuable article, A Century of the New Equity, 23 Tex. L. Rev. 244 (1945), deprecates the merger of the two systems, admits the procedure may have benefited though substance has suffered from its effects, and finds that equity-notwith- standing the good administration of individualized justice-profits from the maintenance of separate courts of equity, as in New Jersey. He attributes the rise of new courts, with their specialized jurisdiction, to the need for an individualized justice reflected in the obsolescence of the growth of equity. He maintains that statute has largely taken the place of what should be an expanding equity; consult also Walsh, The Growing Function of Equity in the De- velopment of the Law in 3 Law: A Century of Progress, 1835-1935, 139 (x937). s Since the Judicature Act of 1873, 36 & 37 Vict., c. 66, and under Rule 2 of the Federal Rules, and in the code states following New York, the distinction between law and equity purports to have been abolished. But by virtue of the Seventh Amendment to the Constitu- tion the federal courts cannot make the merger complete. There is still doubt whether the whole case or the issue needs to be of common law entitling the petitioner to a jury, see Pacific Indemnity Co. v. McDonald, 107 F. 2d 446 (C.C.A. 9th, 1939). In other jurisdictions, also, it is believed that the essential distinctions between legal and equitable rights and remedies still exist. In a few states--Alabama, Delaware, Mississippi, New Jersey, and Tennessee- they still administer the two systems in separate courts. Some lawyers have a vested interest in retaining the technicalities associated with separate jurisdictions. The necessity for bringing THE NEXT STEP BEYOND EQUITY in procedure and the resulting power of courts to administer both or either in the same action.6 Thus he finds that the amalgamation of the two sys- tems is exemplified in the current reports, which disclose four tendencies: (i) the supersession of equitable rules in certain cases by legal rules;7 (2) equitable rules or portions of them disappearing; (3) equitable principles becoming hard and fast and legal in their application; (4) equitable rules becoming adopted in such a way as to confuse instead of supplement the legal rules. He then gives examples of each of these tendencies. 8 Professor Pomeroy feared the effect on equity of the merger of the two systems, and the effort to rigidify equity's remedies and make them "legal," as was happening particularly in the code states. In his preface he says: Even a partial loss of equity would be a fatal injury to the jurisprudence of a state. So far as equitable rules differ from those of the law, they are confessedly more just and righteous, and their disappearance would be a long step backward in the progress of civilization.9 a declaratory action in the court having jurisdiction often results in gross injustice. A petition involving equitable estoppel was denied by a court of equity, since equitable estoppel is ad- ministered in law courts. Township of Ewing v. City of Trenton, i37 NJ. Eq. i09, 43 A. 2d 813 (1945); see also Springdale Corp. v. Fidelity Union Trust Co., 121 N.J. Law 536, 3 A. 2d 565 (1939), where the plaintiff owned property on which defendant held a mortgage. The defendant had authorized the plaintiff and its president to collect rents for the defendant on termination. The president, having rents in his hands, sued for a declaration as to whether the co-plaintiff corporation or the defendant mortgagee was entitled to receive them. He sued at law. But the Court of Errors, while concluding that the claim of the trust company and the corporation against the president was "legal," considered the president's petition as equitable. Though interpleader would have lain, it would have been impossible to predict the court's conclusion; see also Christiansen v. Local Board 68o, 126 N. J. Eq. 5o8, IO A. 2d 168 (1940). Harsher still is the way in which one Moresh was shunted about by two equity and two legal courts in New Jersey, when all he placed in issue was the question whether his agreement to protect glass against breakage placed him in the insurance business, subject to insurance control.