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question is not torn from a jury,” because the resort to equity admits the legal right to be clear, but on equitable grounds asks relief. In such cases, if the plaintiff at law answer in time (and you would surely not have the time which is allowed to answer enlarged), no injunction can go unless on mei its confessed in the answer; and where the injunction is not against proceedings at law, the bill must be verified by affidavit, and even then the matter is not decided in the absence of the other party, unless in cases where delay would operate instant and irremediable mischief-as where a man is about to cut down the timber on an estate without having a right to it.
You seem to think that a man guilty of a fraud may defend himself in equity against all summary proceeding at-law. But the rule is precisely the reverse. You instance the case where executors have 100,000l. assets, and there are no debts, and yet a legatee of 1,000l. cannot have a summary remedy in so plain a case. What do you propose ? To pay the legacy before you ascertain whether there are any debts to pay; or would you assume that no man who leaves 100,000l. can be indebted within a 1,000l. of that amount? Or would you consider it satisfactory, that the legatee knows of no debts ?. Can you point out a more perfect system than that which is now established ? The executor is not allowed to commit any fraud. He is compelled to deposit the 100,0001. in the Bank of England, ready to answer the demands of the parties really intitled to it, and the master advertises for creditors to come in by a day named.
You complain of the usurped jurisdiction of equity, and yet make a grave charge against it, because it does not allow a trial at law on a will of personal estate. Equity refrained from so doing, because the Ecclesiastical Court had the sole jurisdiction ; but as to real estate, over which no such jurisdiction prevailed, equity did resort to a jury, as it always does on disputed facts of importance, for equity delights to follow the law. What then be. comes of this ground of charge. · The law of real property too, according to your temperate and dignified mode of discussing the law of the land, is utterly disgraceful to the country, and affords matter of perfect sarcasm, ridicule and disgust to those who understand it and see how it is managed; but as they are the happy chosen few-six, I think you state-they may be allowed to laugh at that by which they live. You appear to be surprised, that a man may form a judgment of a horse which he buys, but that he cannot of the title to an estate. Would you try a long and complicated title like a horse cause ? Do you propose to remodel the law of real property ? Whom would you employ?. Not the chosen six who alone comprehend
for the expreattains twees, by in
fore, file a bill for the express purpose of the fund being secured in court, until the infant attains twenty-one; and it sometimes happens, that before that time arrives, by intervening accidents, over which the court has no control, other persons become intitled to the fund, and the court cannot distribute it until their rights are ascertained. In such cases, therefore, the court is censured for accomplishing the very object for which alone the suit was insti. tuțed. .
A gentleman of great eminence in the mercantile world has stated, as a grievance, a case in which, on the advice of his solicitor, he sacrificed 500l. rather than go into a court of equity, as his costs, if he succeeded, would exceed that sum in amount. If this is meant as a statement that every successful party in equity has 500l. costs to pay, of course it is altogether fallacious. I have some reason to believe, that in the case alluded to, very heavy accounts must have been investigated to ascertain the amount of the sum due, which circumstance led in effect to a compromise. The law besides was, I believe, against the claim of the gentleman referred to, for whoever buys a bond, takes subject to the account between the original debtor and creditor. Observe the equity of the claimant : A. holds a bond from B. for 4,5001. A. deposits it with C. to secure the like sum, and C. does not inquire from B. what is owing on the bond, and when he finds that B. has already paid 5001. to A. thinks himself unjustly treated, because B. will not pay that 500l. over again. The same gentleman alluded to another case, where a matter of business had been converted by the defendant into a suit in Chancery, that had lasted twenty-three years, when a gentleman named (like. Sir Charles Grandison, for such tales have not even the recommendation of novelty,) sat down to unravel the accounts, and in three hours put into order that which the Court of Chancery had failed to do in twenty-three years! And it is on statements like these that the people of England are no longer to have equitable relief administered to them. · Even in cases of accounts, and the like, time is necessarily consumed in examining the accounts, which in many cases extend over many years. How would delay be avoided, by abolishing courts of equity, and referring the matter to a new tribunal? Would you approve of Mr. Ellice's proposal, that the Court of Chancery should in matters of account adopt the practice of the Ecclesiastical Court, where matters are referred to the registrar, assisted by mercantile characters, who sit once and continuously till they make their report? The registrar stands in the place of the master, and, therefore, that is no improvement; and mercantile men could, of course, readily be found to sit with a master on all the accounts of all the trust estates in the kingdom, once and con
tinuously, till they made their report; of course in the character of assistant masters, but without emolument. Kind heaven protect us from a jurisdiction so constituted! When accounts are referred to arbitration, experience has shown that nothing is ever saved in point of time, and the parties are invariably dissatisfied with the decision of a domestic forum, although they may have. agreed to the reference.
It is said to be allowed, that, under some circumstances, it may cost 1,5001. to recover 3,0001. in equity. Indeed! It is no doubt to be lamented, that in many complicated cases the expenses do not bear any proportion to the value of the property, so that it may cost a large sum to recover in one case a small property, and in another but a small sum to recover a large property. How can this be avoided ? In a late case at law a new trial was granted on the applicant's paying the costs of the former trial, and the costs came to 3,0001.
The prison of the Fleet is said to contain within its walls many victims of the Court of Chancery, but in such cases the court has no jurisdiction to release them. Why do not they, who desire to relieve such persons, bring a bill into parliament to alter the law. Some of such persons undoubtedly are victims of their own obstinacy. I recollect four or five years ago a man being brought from the Fleet into court to put in his answer to a bill filed against him, but which he refused to do. Two or three barristers, not concerned in the cause, of whom I happened to be one, took the man into a private room, offered to look into the case for him, and advised him to answer so as to prevent the necessity of his being sent back to prison, but he refused to do so, and said he would try a little further confinement at all events. Would you have released such a person from answering the claimant’s case, or would you have decided against him without any answer ?
I have thrown these observations hastily together, with a warm feeling of the indispensable necessity of upholding the jurisdiction of equity, and of not diminishing the reverence of the people for the administration of justice in that court; and if they shall operate to make you hesitate in the attacks which you so strongly make against the court, and which must lessen its authority, and the value of its decisions in the eyes of the country, my labor will not have been thrown away. At the same time I should at all times be ready to concur, if my concurrence were necessary, to the extent of my ability, in remedying all abuses which have in the current of time crept into the administration of justice, whether in law or equity; and I do trust, that, in future, invective will give VOL. XXV.
place to argument, and that they who attack the wisdom of the law will condescend, first, to show in what particulars they object to the law as it stands; and, secondly, what improvement they suggest.
I am, Sir,
EDWARD B. SUGDEN. Lincolns'- Inn,
2d June, 1825.