and their respective officers. In the course, therefore, of the present book, we have, first, seen and considered the nature of remedies, 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 action in courts; and therein have contemplated, first, the nature and species of courts, instituted for the redress of injuries in general; and then have shown in what particular courts application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceed to consider the nature and distribution of wrongs and injuries affecting every species of per[*422] sonal 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 judgment 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 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 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 decision, 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 constitution, is [ *423 ] 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, 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 endeavor 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 honor 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; (7) 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

(9) See page 327.

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 seized by their prince to-morrow. In Turkey, says Montesquieu (r) where little regard is shown 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 states, the trouble, [ *424 ] 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 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 (f) has not scrupled to testify that there were in his time more causes there depending than in all Europe besides, and some of them a 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 prætor for deciding causes: (x) whereas, with us, one-fourth of the year is term time in which three courts constantly sit for the dispatch of matters of law; besides the very close attendance of the court of chancery for determining suits in equity, [ *425 ] and the numerous courts of assize 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 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 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 these courts. These will, therefore, be the subject of the ensuing chapter.

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

(8) De Laud, LL. c. 53. (t) Bodin. de republ. l. 6, c. 6. (w) Otherwise called dies fusti in quibus licebat prætori fari tria verba, do, dico, addico. (x) Spelman of the Terms, § 4, c. 2.

(u) See page 407. Calv. Lex. 285.

262

CHAPTER 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, (1) 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 Eng

(a) Pages 45, 50, 78.

(1) [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 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 prefer an indictment for forcible entry, this court will stop the proceedings upon such indictment. 2 Atk. 302. 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 Swanst. 413. 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. Ŵms. 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 chancery. 1 Ves. 202. Where the defendant is in England, though the cause of the 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. and W. 27; and this although in general all questions respecting real estates belong to the country where they are situate. Eiliott v. Lord Minto, 6 Mod. 16.

1. 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. and W. 391.

2. 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 proteet himself in equity by the statute of limitations, from a discovery as to the original consideration 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 preserv ing property during litigation; by counteracting fraudulent judgments; by setting bounds to oppressive litigation; and in cases of fraud, accident, mistake, account, partition and dower. 3. 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.

land; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.

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

I. ACCIDENT AND MISTAKE.

II. ACCOUNT.

III. FRAUD.

(b) Page 50, &c.

IV. INFANTS.

V. SPECIFIC PERFORMANCE OF AGREEMENTS.

VI. TRUSTS.

I. 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 inconveinence. 10 Mod. 1.

1. Bonds, &c. Equity will relieve against the loss of deeds (3 V. and B. 54), or bonds (5 Ves. 235; 6id. 812), but not if the bond be voluntary. 1 Ch. Ca. 77. 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. Bonds made joint, instead of several, may be modified according to intent in some cases. 2 Atk. 33; 9 Ves. 118; 17 id. 514; 1 Meriv. 564.

2. 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.

3. Penalties, Forfeitures, &c., incurred by accident, are relieved against (2 Vern. 594; 1 Stra. 453; 1 Bro. C. C. 418; 2 Sch. and 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. 332. See 1 Vern. 210; 2 Atk. 527; 3 id. 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 Ch. Ca. 198; 6 Bro. P. Č. 470; 1 Cox. 27; 2 Bos. and 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 estate, which determines it when it happens, cannot be re lieved against. 1 Ball and Batt. 373, 478; 1 Stra. 447, 452; Prec. Ch. 574.

4. 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 con usor), or in the names in a recovery, are supplied, especially against a purchaser: 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; 1 P. Wms. 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 id. 60; 6 id. 745; 11 id. 626. Defects in the mode of conveyance may be remedied. 4 Bro. C. C. 382. So the execution of powers. 2 P. Wms. 623.

II. 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. and Lefroy, 309; 13 Ves. 278, 279; 1 Mad. Ch. 86, and 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 objection to an action. 5 Taunt. 481; 1 Marsh. 115; 2 Camp. 233.

III. 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 law, 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. Wms. 270; 2 Vern. 189; 2 Atk. 324; 3 P. Wins. 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. and

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 solicitors. 10 Ves. 381. Nor committee or keeper of a lunatio (13 Ves. 156), nor an executor (1 Ves. and B. 170; 1 Cox. 134), nor governors of charities. 17 Ves. 500.

same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer; with a distinction, however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those peculiar to the chancery.

2. Attorney and Client. Fraud in transactions between attorney and client is guarded against most watchfully. 2 Ves. J. 201; 1 Mad. Ch. 114, 115, 116.

3. 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 id. 27; 1 P. 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 section of 20 Geo. 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

4. Guardian. Fraud between guardian and ward is also the subject of strict cognizance in the court of chancery. For the details under this head, see book 1, ch. xvii, and notes.

5. 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 injunction 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 proceedings in other courts. 2d. To restrain infringements of patents. 3d. To stay waste. 4th. To preserve copyright. 5th. To restrain negotiation of bills, &c., or the transfer of stock. 6th. To prevent nuisances, and in 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. and 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 injunction. 2 Jac. and W. 349.

6. Bills of Peace, which form an essential check on litigation. 1 Bro. P. C. 266; 2 id. 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. 7. 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,

8. Bills or Writs of Certiorari, to remove a cause from an inferior, or incompetent, jurisdiction.

9. Bills to perpetuate testimony in danger of being lost before the right can be ascertained. 10. Bills to discover evidence in possession of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c., in defendant's custody.

11. 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.

12. 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 jurisdiction 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. and B. 244.

13. Bills for apportionment or contribution between persons standing in particular relations one to another. 5 Ves. 792; 2 Freem. 97.

14. For Dower and partition.

15. To establish moduses.

16. Bills to marshal securities.

17. Bills to secure property in litigation in other courts. And,

18, and lastly. Bills to compel lords of manors to hold courts, or to admit copyholders and bills to reverse erroneous judgments in copyhold courts. Vide 1 Madd. Ch. 242 to 253.

IV. INFANTS. The protection and care which the court of chancery exercises over infants have already been incidentally noticed. Vide book 1, cc. xvi, xvii, and notes.

Wards of Court. To make a child a ward of court, it is sufficient to file a bill; and it is a contempt to marry a ward of court, though the infant's father be living. Ambl. 301. The court of chancery, representing the king as parens patrice, has jurisdiction to control the right of the father to the possession of his infant; but the court of K. B. has not any portion of that delegated authority, The court of chancery will restrain the father from removing his child, or doing any act towards removing it out of the jurisdiction. So will the court refuse the possession of the child to its mother, if she has withdrawn herself from her husband. 10 Ves. 52; Co. Lit. 89, (a), n. 70; 2 Fonb. Tr. Eq. 224, n. (a); 2 Bro. C. C. 499; 1 P. W. 705; 4 Bro. C. C. 101; 2 P. W. 102. The court retains its jurisdiction over the property of a ward of court after twenty-one, if it remains in court; and if the ward marries, will

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