ing the suspension of that judgment by writs in the nature of appeals, we have arrived at its final execution: which puts the party in specific possession of his right by the intervention of ministerial officers, or else gives him an ample satisfaction, either by equivalent damages, or by the confinement of his body who is guilty of the injury complained of.

This care and circumspection in the law,-in providing that no man's right shall be affected by any legal proceeding without giving him previous notice, and yet that the debtor shall not by receiving such notice take occasion to escape from justice; in requiring that every complaint be accurately and precisely ascertained in writing, and be as pointedly and exactly answered; in clearly stating the question either of law or of fact; in delibe. rately resolving the former after full argumentative discussion, and indisputably fixing the latter by a diligent and impartial trial; in correcting such errors as may have arisen in either of those modes of decision, from acci. dent, mistake, or surprize; and in finally enforcing the judgment, when nothing can be alleged to impeach it ;-this anxiety to maintain and restore to every individual the enjoyment of his civil rights, without intrenching upon those of any other individual in the nation, this parental solicitude which pervades our whole legal constitution, is the genuine [423] offspring of that spirit of equal liberty which is the singular felicity of Englishmen. At the same time it must be owned to have given a handle, in some degree, to those complaints of delay in the practice of the law, which are not wholly without foundation, but are greatly exaggerated beyond the truth. There may be, it is true, in this, as in all other departments of knowledge, a few unworthy professors: who study the science of chicane and sophistry rather than of truth and justice; and who, to gratify the spleen, the dishonesty, and wilfulness of their clients, may endeavour to screen the guilty, by an unwarrantable use of those means which were in. tended to protect the innocent. But the frequent disappointments and the constant discountenance, that they meet with in the courts of justice, have confined these men (to the honour of this age be it spoken) both in number and reputation to indeed a very despicable compass.

Yet some delays there certainly are, and must unavoidably be, in the conduct of a suit, however desirous the parties and their agents may be to come to a speedy determination. These arise from the same original causes as were mentioned in examining a former complaint; (q) from liberty, property, civility, commerce, and an extent of populous territory: which whenever we are willing to exchange for tyranny, poverty, barbarism, idleness, and a barren desert, we may then enjoy the same despatch of causes that is so highly extolled in some foreign countries. But common sense and a little experience will convince us, that more time and circumspection are requisite in causes, where the suitors have valuable and permanent rights to lose, than where their property is trivial and precarious, and what the law gives them to-day, may be seised by their prince to-morrow. In Turkey, says Montesquieu, (r) where little regard is shewn to the lives or fortunes of the subject, all causes are quickly decided : the basha, on a summary hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. But in free [424] states the trouble, expense, and delays of judicial proceedings are the price that every subject pays for his liberty; and in all governments, he adds, the formalities of law increase, in proportion to the value which is set on the honour, the fortune, the liberty, and life of the subject.

From these principles it might reasonably follow, that the English courts should be more subject to delays than those of other nations; as they set a greater value on life, on liberty, and on property. But it is our peculiar felicity to enjoy the advantage, and yet to be exempted from a proportionable share of the burthen. For the course of the civil law, to which most other nations conform their practice, is much more tedious than ours; for proof of which I need only appeal to the suitors of those courts in England, where the practice of the Roman law is allowed in its full extent. And particularly in France, not only our Fortescue (s) accuses (on his own knowledge) their courts of most unexampled delays in administering jus tice; but even a writer of their own (t) has not scrupled to testify, that there were in his time more causes there depending than in all Europe be sides, and some of them an hundred years old. But (not to enlarge on the prodigious improvements which have been made in the celerity of justice by the disuse of real actions, by the statutes of amendment and jeofails, (u) and by other more modern regulations, which it now might be indelicate to remember, but which posterity will never forget) the time and attendance afforded by the judges in our English courts are also greater than those of many other countries. In the Roman calendar there were in the whole year but twenty-eight judicial or triverbial (w) days allowed to the praetor for deciding causes: (x) whereas, with us, one-fourth of the year is term time, in which three courts constantly sit for the despatch of matters of

law; besides the very close attendance of the court of chancery for [425] determining suits in equity, and the numerous courts of assise and

nisi prius that sit in vacation for the trial of matters of fact. Indeed there is no other country in the known world, that hath an institution so commodious and so adapted to the despatch of causes, as our trial by jury in those courts for the decision of facts; in no other nation under heaven does justice make her progress twice in each year into almost every part of the kingdom, to decide upon the spot by the voice of the people themselves the disputes of the remotest provinces.

And here this part of our commentaries, which regularly treats only of redress at the common law would naturally draw to a conclusion. But, as the proceedings in the court of equity are very different from those at com mon law, and as those courts are of a very general and extensive jurisdic tion, it is in some measure a branch of the task I have undertaken, to give the student some general idea of the forms of practice adopted by those courts. These will therefore be the subject of the ensuing chapter.

s de Laud. LL. c. 58.

t Bodin de Republ. 1. 6. c. 6.

u See pag. 407.

w Otherwise called dies fasti in quibus licebat praetoria fari tria verba, do, dico, addico. Calo. Len 285.) x Spelman of the terms, 4. c. 2.

CHAP. XXVII.

OF PROCEEDINGS IN THE COURTS OF
EQUITY.'

BEFORE we enter on the proposed subject of the ensuing chapter, viz. the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations which were made in the beginning of this book (a) on the principal tribunals of that kind, acknowledged by the constitution of England; and to promise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.

a pag. 45, 50. 78.

(1) In the preface to a valuable modern treatise on the Principles and Practice of Chancery, the author observes, that" Blackstone in his Commentaries alludes occasionally to our courts of equity, but his treatment of the subject, though much to be admired, so far as it extends, must yet be allowed to afford a very trifling knowledge of the principles of equity. It is in truth one of the most deficient parts of that excellent work." Maddock's Princ. & Prac. of Chancery, pref. xvi. Admitting the general correctness of this criticism, we shall endeavour in the present edition to supply the deficiency as far as practicable, without descending to a minuteness of de tail beyond the comparative importance of the subject. The learned commentator has referred the reader to the brief history which he has given of the court of chancery in a former part of this book in the notes to those and several subsequent pages will be found some additional information on this branch of our jurisprudence. The immediate object now will be to present a compendium of the law, and the rules of practice, as they have been matured and confirmed by the watchful experience, patient investigation, and perspicacity of intellect, which preside over and so eminently adorn the equitable jurisdiction of this country.

JURISDICTION OF THE COURTS OF EQUITY.-That the courts of equity and courts of law. are not opposed to each other, and often concur in the exercise of their powers, to promote the ends of substantial justice, is not now disputed. It is said, that matters of fact should be left to courts of law for the decision of a jury, 1 Ridgway's Parl. Car. 9.; and issues are oftentimes, directed for that purpose; yet" there is no doubt," says lord Eldon," that according to the construction of this court, it may take upon itself the decision of every fact put in issue upon the record." And again," This court has a right (to be exercised very tenderly and sparingly) of deciding without issues." 9 Ves. 168. The general rule is, that a court of equity will never exercise jurisdiction over criminal proceedings. Yet in a case where the plaintiffs indicted defendant's agent at the sessions, where the plaintiffs themselves were judges, for a breach of the peace, lord Hardwicke made an order to restrain the prosecution till after hearing of the cause and further order: and where a bill is brought to quiet possession, if the plaintiff afterwards prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 30%. The court of chancery has no jurisdiction to prevent a crime, except in the protection of infants. Therefore it is said, that the publication of a libel cannot be restrained. 2 Swan. 415. (see ante, 2 Book, 407. in notes.) Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. The court of chancery has a concurrent jurisdiction with the admiralty, Gilb. Eq. Rep. 228.; and may repeal letters of reprisal after a peace, though there is a clause in the patent that no treaty of peace shall prejudice it. 1 Vern. 54. So equity may relieve after verdict in K. B. or C. P., and even grant a perpetual injunction after five trials at law on the same point and verdicts the same way: but equity is very tender in the exercise of this power. 2 P. W. 425. 10 Mod. 1. And a court of equity will not review the orders of the exchequer as a court of revenue; nor interfere where that court, as a court of revenue, is competent to decide the subject-matter. 3 Ridgw. P. C. 80. Nor decree alimony on a separation between husband and wife. Gilb. Eq. Rep. 152, Prac. Ch. 496. 3 Atk. 547. 1 Ves. 17.

Matters arising out of England.-A question concerning the right and title to the Isle of Man may be determined in a court of chancery: 1 Ves. 202. Where the defendant is in England, though the cause of suit arose in the plantations, if the bill be brought here, the court agens in personam may, by compulsion of the person, force him to do justice, for the jurisdiction of the chancellor is not ousted, 3 Atk. 589. See 1 Jac. & W. 27.; and this although in general all ques fors respecting real estates belong to the country where they are sitnate. Elliott 7. Lord Minto.

I have already (6) attempted to trace (though very concisely) the history, rise, and progress, of the extraordinary court, or court of equity, in

b pag. 50, &c.

6 Mod. 16. Courts of equity and law can only enforce the rights of parties under acts of parlia ment, by application to their known principles; if they are inadequate to the purpose, the legisla ture alone can supply the defect. 1 J. & W. 371. Sir T. Moore, in the quaint style of the times, gives in two lines, a description of the matters which are relievable in equity:

"Three things are to be helpt in conscience,

Fraud, accident, and things of confidence."

1 Roll. Ab. 374. 2 Ch. Ca. 30., and per Cowper, Ld. Chancellor. 10 Mod. 1.

EQUITABLE MAXIMS.-The maxims which pervade the whole system of judicature in the courts of equity, many of which are commented upon in Francis's Maxims, are,

1st. He that will have equity done to him, must do it to the same person.

2d. He that hath committed iniquity, shall not have equity.

Sd. Equality is equity.

4th. It is equity, that that should make satisfaction which received the benefit.

5th. It is equity, that that should have satisfaction which sustained the loss.

6th Equity suffers not a right to be without a remedy.

7th. Relieves against accidents.

8th. Prevents mischief.

9th. Prevents multiplicity of suits.

10th. Regards length of time.

11th. Will not suffer a double satisfaction to be taken.

12th. Suffers not advantage to be taken of a penalty or forfeiture, where compensation can be made.

13th. It regards not the circumstances, but the substance, of the act.

14th. Where equity is equal the law must prevail.

In the application of these maxims the jurisdiction of this court admits of this summary: 1st. It is assistant to the common law, by removing legal impediments to a fair decision of a question depending in those courts; as, preventing the setting up of outstanding terms, &c. 5 Mad. 428. 2 J. & W. 391.

2dly. It acts concurrently with the common law, by compelling a discovery which may enable those courts to decide according to the real facts and justice of the case; as, where the discovery is to ascertain whether the defendant did not promise to marry, Forrest. Rep. 42.; or to disprove the defendant's plea, that he had made no promise within six years, and to compel him to state whether he has not promised within that time, 5 Mad. 331.; but he has a right to protect himself in equity by the statute of limitations, from a discovery as to the original constitution of the debt, or whether it has since been paid. 5 Mad. 331. So he may be required to disclose whether he is an alien or not, 2 Ves. sen. 287. 494.; but where a discovery would subject a party to penalty or forfeiture, it is not to be obtained, 1 Ves. 56. 2 Ch. Rep. 68 2 Atk. 392. 2 Ves. 265. 1 Eq. Ab. 131. p. 10.; except in cases under the stockjobbing act, 7 Geo. II. c. 8. s. 1., 2 Marsh. Rep. 125., and some other particular provisions, Nor will the court compel a discovery in aid of criminal proceedings. 2 Ves. 398. Vide Mitf. Pl. 150. It exercises concurrent jurisdiction, in perpetuating testimony in danger of being lost before it can be used; by preserving property during litigation; by counteracting fraudulent judgments; by setting bounds to oppressive litigation; and in cases of fraud, accident, mistake, account, partition, and dower.

3dly. It claims exclusive jurisdiction in matters of trust and confidence, and whenever, upon the principles of universal justice, the interference of a court of judicature is necessary to prevent a wrong, and the positive law is silent. 1 Fonb. Eq. p. 9. n. (f).

The matters over which the court of chancery maintains an equitable jurisdiction have been ar ranged in the following alphabetical order; and as this analysis has the recommendation of prac tical utility, we shall proceed to embody the principal rules and decisions under each head respectively.

1st. ACCIDENT AND MISTAKE.

2d. ACCOUNT.

3d. FRAUD.

4th. INFANTS.

5th. SPECIFIC PERFORMANCE OF AGREEMENTS.

6th. TRUSTS.

1st. ACCIDENT AND MISTAKE.-By accident is meant, where a case is distinguished from others of the like nature by unusual circumstances, for the court of chancery cannot control the maxims of the common law, because of general inconvenience; but only where the observation of a rule is attended with some unusual and particular inconvenience. 10 Mod. 1.

1. Bonds, &c.-Equity will relieve against the loss of deeds, 3 V & B. 54. or bonds, 5 Ves. 235. 6 Ves. 812. but not if the bond be voluntary, 1 Ch. Ca. 77.; nor against the loss of a note, if there be a remedy at law. 16 Ves. 430. 2 Ves. 41. 3 Atk. 214. It will also set up a bond so lost or destroyed, against sureties, though the principal be out of the jurisdiction. 3 Atk. 93. 1 Ch. Ca, 77, 9 Ves. 464. But to prevent fraud, the party must annex an affidavit of the loss,

chancery. The same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer; with a distinction,

&c. to his bill, or demurrer will lie, 1 Vern. 310. 1 Ves. 346. Mitf. Pl. 100. unless the bill be for a discovery only. 1 Eq. Ab. 14. 2 P. Wms. 541. 1 Ch. Ca. 11. 1 Vern. 180. 1 Madd. Prin. & Prac. 26, 7. Bonds made joint, instead of several, may be modified according to intent in some cases. 2 Atk. 33. 9 Ves. 118. 17 Ves. 514. 1 Meriy. 564.

Boundaries, &c.-Equity will ascertain the boundaries, or fix the value, where lands have been intermixed by unity of possession. 2 Meriv. 507. 1 Swanst. 9. So to distinguish copyhold from freehold lands within the manor. 4 Ves. 180. Nels. 14.

Penallies, Forfeitures, &c., incurred by accident, are relieved against, 2 Vern. 594. 1 Stra. 453. 1 Bro. C. C. 418. 2 Sch. & Lef. 685. where the thing may be done afterwards, or a com. pensation made for it. 1 Ch. Ca. 24. 2 Ventr. 352. 9 Mod. 22. 18 Ves. 63. But no relief is given in the case of a voluntary composition, payable at a fixed period. Amb. 332. See 1 Vern. 210. 2 Atk. 527. 3 Atk. 585. 16 Ves. 372. Equity will not relieve against the payment of stipulated, or as they are sometimes called, liquidated, damages, 2 Atk. 194. Finch. 117. 2 Cha. Ca. 198. 6 Bro. P. C. 470. 1 Cox, 27. 2 Bos. & P. 346. S Atk. 395.; and forfeitures under acts of parliament, or conditions in law, which do not admit of compensation, or a forfeit ure which may be considered as a limitation of an estate, which determines it when it happens, cannot be relieved against. 1 Ball. & Bat, 373. 478. 1 Stra. 447. 452. Prec. Ch. 574.

Mistake. A defective conveyance to charitable uses is always aided, 1 Eden. 14. 2 Vern. 755. Prec. Ch. 16. 2 Vern. 453. Hob. 136.; but neither a mistake in a fine (if after death of conusor), or in the names in a recovery, are supplied, especially against a purchasor. 2 Vern. 3. Ambl. 102. Nor an erroneous recovery in the manorial court. 1 Vern. 367. Mistakes in a deed or contract, founded on good consideration, may be rectified. 1 Ves. 317. 2 Atk. 203. And if a bargain and sale be made and not enrolled within six months, equity will compel the vendor to make a good title, by executing another bargain and sale which may be enrolled. 6 Ves. 745. A conveyance defective in form may be rectified, 1 Eq. Ab. 320. i P. W. 279. even against assignees, 2 Vern. 564. 1 Atk. 162. 4 Bro. C. C. 472. or against representatives. 1 Anst. 14. So defects in surrenders of copyhold. 2 Vern. 564. Salk. 449. 2 Vern. 151. But not the Omission of formalities required by act of parliament in conveyances. 5 Ves. 240. 3 Bro. C. C. 571. 13 Ves. 588. 15 Ves. 60. 6 Ves. 745. 11 Ves. 626. Defects in the mode of conveyance may be remedied. 4 Bro. C. C. 382. 1 Vern. 40. 2 P. Wms. 258. So the execution of pow ers. 2 P. W. 623. 1 Sch. & L. 60. 1 Bro. C. C. 368. 1 Ch. Ca. 10. cont. 3 Mad. 375. 1 Mad. Pri. & Pr. 53. et seq. statute 54 Geo. III. c. 168. So settlements made subsequent to marriage, deviating from the words of the previous articles. Mitf. Pl. 104. 5 Ves. 273. How far ignorance of the law may excuse defective acts, see 1 Mad. Pri. & Pra. 72. 3, 4. In general agreements relating to real and personal estate, if clearly founded on mistake, will for that reason be set aside. 1 Ves. 400. 126. 2 Ball. & B. 183. 1 P. Wms. 354. 9 Ves. 275. Mistakes in wills will be remedied in some cases, 2 Bro. C. C. 87. 1 Ves. 106. 4 Ves. 51. 3 Ves. 321. 2 Bro. C. C. 18. Eden. 275. 3 Ves. 306. 5 Mad. 451. 208. 216. as in the name, &c. of legatee, 1 Atk. 410, 2 P. W. 140. 1 Cox, 226. 2 Atk. 239. 4 Ves. 680. 2 Ves. 589.; or 1 Mer. 384. mistake in cancelling, 1 P. W. 345.; but no relief can be afforded in the case of a specific legacy, where the thing so devised is not to be found. 5 Mad. 208. 6 Madd. 91. 2 J. &. W. 207." It is unquestionably to be stated, that if the subject of a gift do not remain in specie, the gift is gone." 5 Madd. 216.

2d. ACCOUNT.-Mutual dealings and demands between parties, which are too complex to be accurately taken by trial at law, may be adjusted in equity, 1 Sch. & Lefroy, 309. 13 Ves. 278, 9. 1 Mad. Ch. 86. & note (i); but if the subject be matter of set-off at law, and capable of proof, a bill will not lie, 6 Ves. 136.; and the difficulty in adjusting the account constitutes no legal ob jection to an action. 5 Taunt. 481. 1 Marsh. 115. 2 Camp. 238. Between landlord and tenant, where there have been complicated dealings, bill of account will lie. 1 Sch. & L. 305. S Mad. 203. 5 Mad. 459. So between parties engaged in a mining concern, though they are tenants in common of the land. 3 Atk. 630. 1 J. & W. 298. So in matters of waste, as cutting down timber. 1 P. W. 406. 6 Ves. 89. 1 Ves. J. 82. 1 Bro. C. C. 196. A factor, unless he be an infant, 1 Eq. Ab. 6. must account to his principal, and likewise for his deceased cofactor. 1 Ch. Ca. 127. 1 Eq. Ab. 5. So must the representatives of a factor. Nels. 125. 1 Eq. Ab. 6. So conuzee to conuzor under an elegit. 2 Atk. 362. Amb. 520. 1 Mad. Ch. 88. The period from which the rents and profits are given to a party demanding an account, is, on an equitable title, from the accruing of his title, but upon a legal title for six years back only. 5 Ves. 749. 10 Ves. 469. sed vid. 3 Atk. 130. 4 Bro. C. C. 468. Under special circumstances, as in à doubtful case, 4 Bro. C. C. 521. the court will decree an account from the time of filing the bill only. Prec. Ch. 518. 4 Bro. C. C. 257. In the case of infants the account is from the time of the title accruing, 3 Atk. 130. 1 Eq. Ab. 7. 1 Vern. 296. 7 Ves. 541. 2 P. W. 645.; and in some other cases of legal title, as where plaintiff has been kept out of his estate by the fraud, misrepresentation, or concealment of defendant. 3 Atk. 150. 2 P. W. 645. 3 Atk. 34. In cases of legal partnership, 11 Ves. 168. 3 Ves. 612. 1 Ball. & Bat. 360. 1 Sch. & L. 328. where a court of law can give no relief, equity will give an account. 7 East, 353. 17 Ves. $26. 3 Bos. & Pul. 289. 1 Mad. Ch. 92. and that without a dissolution of partnership. 4 Mad. 143. 11 Ves. 168. A corporation as a partnership may be compelled, either by a member or a stranger, to account. 17 Ves, 315. 1 Mer. 107. 2 Ves. J. 42. Bills for tithes, as matVOL. II. 43