Sivut kuvina

oring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law (p).

In this manner are the several remedies given by the English law for all sorts of injuries, either real or personal, administered by the several courts of justice, and their respective officers. In the course therefore o. the present book, we have, first, seen and considered the nature of reme dies, by the mere act of the parties, or mere operation of law, without any suit in courts. We have next taken a review of remedies by suit or ac tion in courts and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shewn in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceeded to consider the nature [*422] and distribution of wrongs and injuries affecting every species of personal and real rights, with the respective remedies by suit, which the law of the land has afforded for every possible injury. And, lastly, we have deduced and pointed out the method and progress of obtaining such remedies in the courts of justice: proceeding from the first general complaint or original writ, through all the stages of process, to compel the defendant's appearance; and of pleading, or formal allegation on the one side, and excuse or denial on the other; with the examination of the validity of such complaint or excuse, upon demurrer; or the truth of the facts alleged and denied, upon issue joined, and its several trials; to the judg ment or sentence of the law, with respect to the nature and amount of the redress to be specifically given: till, after considering 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 onfinement 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 deliberately 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 deci sion, from accident, mistake, or surprise; 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 con- [*423] stitution, is the genuine 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, un this, as in all other departments of knowledge, a few unworthy profes sors who study the science of chicane and sophistry rather than of truth

(p) Co. Litt. 290.

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 intended 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 dispatch 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 trival and precarious, and what the law gives them to-day, may be seized by their prince tomorrow. 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 basti

nadoed, and then sends them about their business. But in [*424] *free 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 justice; 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 besides, 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 jeo fails (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

17) See page 327.

(r) Sp. L. b. 6, ch. 2.

18) de Laud. LL. c. 53.

ft) Bodin. de Republ. 1.6 c f

f) See page 407

(w) Otherwise called dies fasti in quibus licebat praetori fari tria verba, do, dico, addico. (Cale Lex. 285.)

(e) Spelman of the terms, ó 4.2.

fear is term time, in which three courts constantly sit for the dispatch o matters of law; besides the very close attendance of the court of chancery for determining suits in equity, and the numerous [*425] 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 dispatch 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 he 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 courts of equity are very different from those at common law, and as those courts are of a very general and extensive jurisdiction, 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




BEFORE we enter on the proposed subject of the ensuing chapter, vis 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

(1) That the courts of equity and courts of aw 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, I 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 constitution 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 preer an indictment for forcible entry, this court will stop the proceedings upon such indictment. A. 302. The court of chancery has no jurisdiction to prevent a crime, except in the prosection of infants. Therefore it is said, that

the publication of a libel cannot be restrained 2 Swan. 413, (see ante, 2 vol. 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 jurisdic tion 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 ver dict in K. B. or C. P., and even grant a per petual 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.

Matters arising out of England.-A question concerning the right and title to the Isle of Man may be determined in a court of chance ry. 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 u risdiction of the chancellor is not ousted, 3

this book (a) on he principal tribunals of that kind, acknowledged by the constitution of England; and to premise a few remarks upon those parti.

(a) page 45. 50. 78.

Atk. 589. See Jac. & W. 27; and this although in general all questions respecting real estates belong to the country where they are situate. Elliott v. Lord Minto. 6 Mod. 16.

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 o 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 arranged in the following alphabetical order; and as this analysis has the recommendation of practical utility, we shall proceed to embody the principal rules and decisions under each head respectively.



3d. FRAUD.


cause of general inconvenience; but only where the observation of a rule is attended with some unusual and particular inconveni ence. 10 Mod. I.

1. Bonds, &c.-Equity wil 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. It will also set up & 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. 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 Meriv. 564. Boundaries, &c.--Equity will ascertain the boundaries, or fix the value, where lands ha re been intermixed by unity of possession. 2 Meriv. 507. 1 Swanst. 9. So to distinguish copy hold from freehold lands within the manor. 4 Ves. 180. Nels. 14.

Penalties, Forfeitures, &c., incurred by accident, are relieved against, 2 Vern, 594. 1 Stra. 453. I Bro. C. C. 418. 2 Sch. & Lef. 685. where the thing may be done afterwards, or a compensation 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.



See 1 Vern. 210. 2 Atk. 527. 3 Atk.

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. 3 Atk. 395; and forfeitures under acts of parliament, or conditions in law, which do not admit of compensation, or a forfeiture which may be considered as a limitation of an es tate, 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 chari table 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 purchaser. 2 Vern. 3 Ambl. 102. Nor an erroneous reco very 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, I Eq. Ab. 320. 1 P. W. 279. even against as

5th. SPECIFIC PERFORMANCE OF AGREE signees, 2 Vern. 564. 1 Atk. 162. 4 Bro. C. C.



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 entral the maxims of the common law, be

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 par liament in conveyances. 5 Ves. 240 3 Bro. C. C. 571. 13 Ves. 588. 15 Ves. 60 6 Ves 745. 11 Ves. 626. Ders in the nos de

ular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.

382. 623.

conveyance may be remedied. 4 Bro. C. C. So the execution of powers 2 P. W. 2d. ACCOUNT.-) -Mutual dealings and demands between parties, which are too complex to be accurately taken by trial at law, may be adjusted in equi y, 1 Sch. & Lefroy, 309. 13 Ves. 278, 9. 1 Mad. Ch. 86. & note (i); but if the sabject 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 objection to an action. 5 Taunt. 481. 1 Marsh. 115. 2 Camp. 238.

3. FRAUD. Equity has so great an abhorrence of fraud, that it will set aside its own decrees if founded thereupon; and a bill lies to vacate letters patent obtained by fraud. 13 Vin. Ab. 543 pl. 9. 1 Vern. 277 All deceitful practices and artful devices, contrary to the plain rules of common honesty, are frauds at common law, and punishable there; but for some frauds or deceits there is no remedy at aw, in which cases they are cognizable in equity, as one of the chief branches of its original jurisdiction. 2 Ch. Ca. 103. Finch. 161. 2 P. W. 270. 2 Vern. 189. 2 Atk. 324. 3 P. W. 130. Bridg. Ind. tit. Fraud, pl. 1. Where a person is prevented by fraud from executing a deed, equity will regard it as already done. 1 Jac. & W. 99.

1. Trustees are in no case permitted to purchase from themselves the trust estate, 1 Vern. 465. nor their solicitor. 3 Mer. 200. Nor in bankruptcy are the commissioners (6 Ves. 617.) or assignees, (6 Ves. 627.) nor their so.icitors. 10 Ves. 381. Nor committee or keeper of a lunatic, 13 Ves. 156. nor an execu. tor, 1 Ves. & B. 170. 1 Cox, 134. nor governors of charities, 17 Ves. 500.

2dly. Attorney and Client-Fraud in transactions between attorneys and client is guarded against most watchfully. 2 Ves. J. 201. 1 Mad. Ch. 114, 5. 116.

3dly. Heirs, Sailors, &c.-Equity will protect improvident heirs against agreements binding on their future expectancies, negotiated during some temporary embarrassment, provided such agreement manifest great inadequacy of consideration. 1 Vern. 169. 2 Vern. 27. 1P.W.310. 1 Bro. C. C. 1. 2 Ves. 157. It will also set aside unequal contracts obtained from sailors respecting their prize-money, Newl. Cont. 443. 1 Wils. 229. 2 Ves. 281. 516; and the fourth sec. of 20 G. III. c. 24. declares all bargains, &c. concerning any share of a prize taken from any of his majesty's enemies, &c. void. Vid. Newl. Cont. 444.

4thly. Guardian.-Fraud between guardian and ward is also the subject of strict cognisance in the court of chancery. For the details under this nead, see 1 book, ch. XVII. and notes.

5thly. Injunctions. In a modern work the subject of injunctions is considered under the head of fraud, (see 1 Mad. Ch. 125.) but it seems to deserve a distinct consideration. An isang.ion is a method by which the court of

chancery interferes to prevent the commission of fraud and mischief. The exercise of this authority may be obtained, 1st. To stay pro ceedings in other courts. 2d. To restrain infringements of patent. 3d. To stay waste. 4th. To preserve copy-right. 5th. To restrain negotiation of bills, &c. or the transfer of stock. 6th. To prevent nuisances, and ir most cases where the rights of others are invaded, and the remedy by action at law is too remote to prevent increasing damage. See 1 Mad. Ch. 157 to 165. An injunction to stay proceedings at law does not extend to a distress for rent. 1 Jac. & W. 392. Nor has equity any jurisdiction to stop goods in transitu in any case, nor will the court restrain the sailing of a vessel for such purpose by injune. tion. 2 Jac. & W. 349.

6thly. Bills of Peace, which form an essen. tial check on litigation. I Bro. P. C. 266. 2 Bro. P. C. 217. Bunb. 158. 1 P. W. 671. Prec. Ch. 262. 1 Stra. 404. For this purpose a perpetual injunction will be granted. See 10 Mod. 1. 1 Bro. P. C. 268. This bill cannot hold in disputes between two persons only. 2 Atk. 483. 391. 4 Bro. C. C. 157. Vin. tit Ch. 425. pl. 35. 3 P. W. 156.

7thly. Bill of Interpleader will lie to prevent fraud or injustice, where two or more parties claim adversely to each other, from him in possession (otherwise it will not lie, 1 Mer. 405.); for in such case, it is necessary the two claimants should settle their rights before the person holding possession be required to give up to either. 2 Ves. J. 310. Mitf. Pl. 39. 1 Mad. Ch. 173. And on the same principle,

8thly. Bills or Writs Certiorari, to re move a cause from an inferior, or incompetent jurisdiction.

9thly. Bills to perpetuate testimony in danger of being lost before the right can be ascer tained.

10thly. Bills to discover evidence in posses sion of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c. in defendant's custody.

11thly. Bills of Quia Timet for the purpose of preventing a possible future injury, and thereby quieting men's minds and estates, &c. 1 Madd. Ch. 224. Newl. on Contr. 93. 493.

12thly. Bills for the delivering up of Deeds. -As where an instrument is void at common law, as being against the policy of the law, it belongs to the jurisdiction of equity to order it to be delivered up. 11 Ves. 535. In Mayor, &c. of Colchester v. Lowton, Lord Eldon says, "My opinion has always been (differing from others) that a court of equity has juris diction and duty to order a void deed to be delivered up, and placed with those whose property may be affected by it, if it remains in other hands." 1 Ves. & B. 244.

13th. Bills for apportionment or contribution between persons standing in particular rela tions one to another. 5 Ves. 792. 2 Free 97.

14th. For dower and partition.

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