Darling v. Roarty

71 Mass. 71

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

By the Court.

The language of the St. of 1853, c. 371, § 1, is decisive of this case : “ All suits for the specific performance of any written contract ” “ shall be by action of contract, setting forth the facts and circumstances of the case so far as may be necessary, and praying for relief in equity.” This statute depi ives the court of its jurisdiction of bills in equity for the objects enumerated therein.

The statutes allowing amendments do not authorize the substitution of an action at law for a bill in equity, or of a bill in equity for an action at law. Hayward v. Hapgood, 4 Gray, 437.

Bill dismissed

*

The St. of 1855, c. 194, passed on the 14th of April 1855, after giving, in § 1, jurisdiction in equity to this court in cases of fraud, and of conveyances of real estate in the nature of mortgages, contains the following provisions :

“ Section 2. When relief is sought in equity, the material facts and circumstances relied on shall be stated with brevity, omitting all immaterial and irrelevant matter, either in the form of a bill or petition to the court, or in a declaration in an action of contract or tort.”

“ Section 5. The provisions of law, and the rules of proceeding in equity heretofore established by-the supreme judicial court, except so far as changed by the provisions of this act, or by the rules of court hereafter to be made under the powers conferred on the court, shall remain in force.”

The St. of 1856, c. 38, after giving to this court, by § 1, jurisdiction in equity in cases of accident and mistake, contains the following sections:

“ Section 2. Suits in equity may be commenced by bill or by writ of attachment.

“ Section 3. All acts or parts of acts, inconsistent with the preceding section, are repealed.”