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, 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 court application must be made for the redress of particular injuries, or the doctrine of jurisdictions and *cognizance. We afterwards proceed 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 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 [*423] nation, this parental solicitude *which pervades our whole legal constitution, 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, 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 reputa tion 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; (g) from liberty, property, civility,

(9) See page 27.

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 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, [*424] 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 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 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, and the numerous courts of assize and nisi prius [*425] 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 repub 1. 6, c. 6. (u) See page 407. (w) Otherwise called dies fasti in quibus licebat prætori fari tria verba, do, dico, addico. Calv. Lex.

285.

(x) Spelman of the Terms, § 4, 0. 2.

248

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 England; 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.

(a) Pages 45,, 50, 78.

(1) It is not to be assumed, because the system of equity has grown up as an independent and distinct system from that of the common law, that therefore the two are opposed and hostile to each other, and may be expected to operate at cross purposes. On the contrary, they are to be regarded as the two parts of a complete and symmetrical structure, the purpose of which is to accomplish justice in all the varying circumstances of human transactions. On the other hand, we are not to suppose, because equity is said to supply the defects of the common law, that it may do this at the discretion of the chancellor, and regardless of other rules than his own sense of what is right and just. It needs but the most cursory examination to show that the jurisdiction of equity is very clearly defined and limited, and that the discretion of the chancellor in administering this discretion is closely restrained within the lines of precedents which have evolved general rules for his guid

ance.

The general heads of equity jurisdiction may be stated as follows:

FRAUD.-Equity is said to abhor fraud; and therefore it will lend its aid to set aside contracts which are tainted by it, and even to vacate judgments and decrees where they have been obtained by means of it. The law has a concurrent jurisdiction in a great many cases, and will refuse to enforce contracts tainted with fraud; but this negative relief is not always sufficient for the purposes of complete justice, and therefore equity lends its aid to compel the surrender of contracts, the restoration of property dishonestly obtained, and the cancelment on public and corporate records of entries which have been made or shaped by means of fraudulent documents, represcutations or devices. Equity lends its aid also in the case of constructive frauds as where executors, administrators, guardians, or other trustees take advantage of the confidence belonging to their fiduciary relation to advance their own interests at the expense of those whose interests they were selected to protect; or where attorneys and other professional men betray the confidence of their employers. Unconscionable bargains obtained by the influence properly belonging to the several family relations may also demand the aid of equity for their abrogation. ACCIDENT.-Equity may relieve against the consequences of accident in some cases. familiar illustration is where, by reason of accidental circumstances and without his fault, a party has incurred a penalty or forfeiture. Here equity may give relief on such terms of compensation as may be found just. This, however, is not universally true; for if the parties themselves have stipulated what the damages shall be when a forfeiture is incurred, equity will not interfere. It is also a general rule that equity cannot relieve against a forfeiture imposed by statute.

A

MISTAKE.-If by mistake the contracts of parties are not made to express the actual intent, equity may give relief, provided they are founded upon a valuable, or even upon a good consideration; but purely voluntary transactions will not be aided. A common illustration of this head of equity is the correction of a deed or mortgage in which the description is imperfect or erroneous. In such a case the grantor or mortgagor will be compelled to correct it if the mistake is clearly established.

ACCOUNT.-Mutual dealings between partners can only be examined and the accounts adjusted in equity, and the court may decree the final dissolution of a partnership and the appointment of a receiver to wind up its concerns when the case seems to demand it. Accounts and demands between other parties which are too complicated or numerous to be properly tried at law, may also be adjusted in equity.

INFANTS.-Equity has general jurisdiction to protect infants and their estates, and may appoint guardians and displace the custody of parents where the interest of infants appears to require it. The infant on whose behalf a bill is filed becomes a ward of court, and it is a contempt of court to interfere with his custody, or to control or influence his action in such a manner as to defeat or embarrass the jurisdiction of the court which has been invoked in the case.

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 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.

1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in every feudal view; but *resulted to the king in his court of chancery [*427] together with the general protection (c) of all other infants in the king

dom. When, therefore, a fatherless child has no other guardian, the court of chancery has a right to appoint one: and from all proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the defence of the infant if a suit be com(b) Page 50, &c.

(c) F. N. B. 27.

LUNATICS, IMBECILES, ETC.-Equity in these cases exercises a jurisdiction analogous to that in the case of infants, and appoints guardians or committees to take charge of person or estate. A statutory jurisdiction is sometimes conferred in the case of those who by vicious habits have been rendered incompetent to manage their estates.

MARRIED WOMEN.-The protection of married women in the proper control of their separate estates belongs to equity, as does also the enforcement of their undertakings with creditors and others in respect to such estates. Equity will also, in respect to other property which married women have brought to their husbands or have acquired during coverture, extend to them any needful protection, and make provision for an independent support for themselves or their children out of it when it seems equitable to do so.

SPECIFIC PERFORMANCE.-Equity has a discretionary power to decree the specific performance of contracts respecting lands, where damages for a breach would seem inadequate redress, and also in cases where the plaintiff might be without remedy at law by reason of failure in strict performance on his own part. In a few cases specific performance will be decreed in contracts respecting personalty, and it may also be had in some cases of provisions in marriage articles.

FORECLOSURE OF MORTGAGES.—Mortgage and other liens may be foreclosed in equity, not only in cases of real estate, but also when personalty has been conveyed or pledged by way of security.

DOWER-A widow's dower may be recovered either at law or in equity, but in some cases only the equitable jurisdiction will be found fully adequate.

PARTITION.-The partition of joint estates between the several owners of interests is made on bill in equity filed by any party concerned.

INTERPLEADER.-Where two persons claim the same fund, which is in the custody of a third, the custodian for his own protection may file a bill in equity to compel the claimants to litigate as between themselves.

TRUSTS.-Equity has general jurisdiction in cases of trust and charity, and this is exclusive of the courts of law. It also has jurisdiction in all matters of the administration of estates of deceased persons, which however, in the United States, has generally been conferred upon special statutory courts.

BILLS OF PEACE-These are calculated to restrain unnecessary and vexatious litigation, and to enjoin the bringing of numerous suits when one is adequate to all the purposes of justice.

BILLS QUIA TIMET.-The purpose of these bills is to prevent a threatened or possible future injury, and to quiet titles and estates in respect thereto.

INJUNCTIONS. The court of chancery will issue the writ of injunction, not only as a temporary remedy pending litigation, but also as a permanent mandate against some threatened or contemplated injury. A common case is where a nuisance is being created to the injury of the plaintiff, or where patents are being infringed or trade marks pirated.

These sufficiently indicate the general heads of equity jurisdiction, and illustrate its great extent and value. It should be added that chancery formerly exercised important jurisdiction in compelling discovery where the common law courts were inadequate to reach the facts; but this has been rendered unimportant by the statutes which make parties to suits and other interested persons competent witnesses.

In many states of the American Union chancery as a distinct system has been abolished. Equitable principles nevertheless remain and are to be administered by the courts of law, and those courts issue injunctions and employ other equitable remedies when justice is found to require it. The valuable treatises of Story, Spence, Adams, Willard and Pomeroy on equity jurisdiction are therefore as important as ever, even in the states which no longer have chancery courts.

menced against him; a power which is incident to the jurisdiction of every court of justice: (d) but when the interest of a minor comes before the court judicially, in the progress of a cause, or upon a bill for that purpose filed, either tribunal indiscriminately will take care of the property of the infant.

2. As to idiots and lunatics: the king himself used formerly to commit the custody of them to proper committees, in every particular case; but now, to avoid solicitations and the very shadow of undue partiality, a warrant is issued by the king, (e) under his royal sign manual, to the chancellor or keeper of his seal to perform this office for him: and, if he acts improperly in granting such custodies, the complaint must be made to the king himself in council. (f) But the previous proceedings on the commission, to inquire whether or no the party be an idiot or a lunatic, are on the law side of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular course of law.

3. The king, as parens patria, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And, therefore, whenever it is necessary, the attorney-general, at the relation of some informant (who is usually called the relator), files ex officio an information in the court of chancery to have the charity properly established. By statute, also, 43 Eliz. c. 4, authority is given to the lord chancellor, or lord keeper, and to the chancellor of the duchy of Lancaster, respectively, to grant *commis[*428] sions under their several seals, to inquire into any abuses of charitable donations, and rectify the same by decree; which may be reviewed in the respective courts of the several chancellors, upon exceptions taken thereto. But, though this is done in the petty bag office in the court of chancery, because the commission is there returned, it is not a proceeding at common law, but treated as an original cause in the court of equity. The evidence below is not taken down in writing, and the respondent, in his answer to the exceptions, may allege what new matter he pleases; upon which they go to proof, and examine witnesses in writing upon all the matters in issue: and the court may decree the respondent to pay all the costs, though no such authority is given by the statute. And as it is thus considered as an original cause throughout, an appeal lies of course from the chancellor's decree to the house of peers, (g) notwithstanding any loose opinions to the contrary. (h)

4. By the several statutes relating to bankrupts, a summary jurisdiction is given to the chancellor, in many matters consequential or previous to the commissions thereby directed to be issued; from which the statutes give no appeal. (2)

On the other hand, the jurisdiction of the court of chancery doth not extend to some causes, wherein relief may be had in the exchequer. No information can be brought in chancery for such mistaken charities as are given to the king by the statutes for suppressing superstitious uses. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee. (i) (3) Such causes must be determined in the court of exchequer, as [*429] a court of revenue: which alone has power *over the king's treasury, and the officers employed in its management: unless where it properly belongs to the duchy court of Lancaster, which hath also a similar jurisdiction

(d) Cro. Jac. 611. 2 Lev. 163. T. Jones, 90. (e) See book I, ch. 8. () 3 P. Wms. 108. See Reg. Br. 267. (g) Duke's Char. Uses, 62, 128. Corporation of Burford v. Lenthal, Canc. 9 May, 1743. (h) 2 Vern. 118.

(7) Huggins v. York Buildings' Company, Canc. 24 Oct. 1740. Reeve v. Attorney-General, Cano. 27 Nov. 1741. Lightbourn v. Attorney-General, Canc. 2 May, 1743.

(2) This jurisdiction is now in the bankruptcy courts.

(3) It has already been stated that a sovereignty is not suable in its own courts, except with its own consent, and this consent is given either by general law, or specially for the particular case. See note p. 257, supra.