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rise to cases that called for a different sort of relief. Take for instance, the case of a partnership-a large property to be divided in unequal shares, great sums of money to be collected, and many debts to be paid. Whatever complaints one of the partners might have to make against the other, he could not be entitled to an execution at common law; for he could not show that any thing was to be paid to him till the debts of the concern were paid, nor could he show how much was due, until the outstanding debts were collected; nor could he require that the sheriff should put him in possession of the goods, because the custody of them belonged to the other partners as much as to himself. Neither was a common law execution applicable to the complaints of the dissatisfied partner, for it was a settlement that he wanted, and the power of compelling his associates to unite with him in doing a great variety of acts to effect that object. Again, as relates to trusts. The trustee needs instructions, or the cestui que trusts disagree with him or with one another, as to the mode of administering the property, and ask the directions of the court. Such directions it is not the province of a jury to give.

Nor is the simplicity of the course of the common law to be referred merely to the forms of action or system of pleadings which prevail in those courts, but exists intrinsically in the nature of the subjects themselves, which form the proper objects of their jurisdiction. Whatever latitude of pleading may be allowed in the courts of common law, whether the matter is submitted to the court by the way of precise and definite written allegations and answers, or is tried under the more comprehensive statement of the general issue, there is a unity in the subject of a suit at common law, which resolves itself into the simple affirmation or negative of the jury. If any one will compare the judgment in the most complicated suits at Law, with the decree in an ordinary cause in Equity, he will be struck with the difference. In the one, various directions are given, inquiries are to be made, accounts are to be taken, and important acts done by the various parties. In the Court of Law, one party is merely to pay or render, and the other to receive, something definite.

If we consider the important and efficient part which the jury sustain in the courts of Common Law, we shall be at no loss to account for this difference. If the courts of Common Law were opened to the subjects which require the long and minute decrees of a Court of Chancery, the jury would be perplexed with duties for which they are not prepared by education or VOL. III.-No. 5.

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habit. In this state of things they would soon sink into neglect, and with the loss of their usefulness, they would lose their popularity, and be gradually abolished.

We are far, therefore, from joining in the reproach of usurpation with which the Chancery has been often assailed. It is probable that the existence of such a court, called the Privatum Concilium or Concilium Regis, and afterwards the Court of Chancery, is of equal antiquity with the other courts of Westminster Hall-the origin of them all, as well as of Parliament itself, being concealed in the obscurity of a distant age-although the cases which called for its interposition were of rare occurrence, and the jurisdiction little noticed in early times.

As we consider the trial by jury to be every way inestimable, and particularly as connected with the spirit of liberty, we regard the Chancery as an admirable regulation for preserving that institution in its usefulness and vigour. But if we are right in our speculations on this subject, the Chancery jurisdiction should be confined to those causes which, from their nature, cannot conveniently be decided or settled by a verdict. The notion of a concurrent jurisdiction between Common Law and Equity, seems to be at variance with the principle on which the separation between the two courts is founded.

The complaints against the delays and expense of the Court of Chancery in England, led in the year 1825 to a parliamentary inquiry: a commission was issued to a number of the most distinguished legal characters, with Lord Eldon at their head, to inquire what alterations should be made in the Chancery practice, and whether any part of the business of that court might be usefully withdrawn from it, and committed to other tribunals. The majority of the commissioners made a voluminous report, which we have placed at the head of this article. Lord Redesdale dissented, and is understood to be the author of the Considerations, &c. The nature of Chancery jurisdiction is thus explained by the commissioners.

"The proceedings in the courts of Common Law are simple, and gene rally founded on certain writs of great antiquity, conceived in prescribed forms. This adherence to prescribed forms has been considered as important to the due administration of justice in common cases: but in progress of time cases arose, in which full justice could not be done in the court of Common Law, according to the practice then prevailing; and for the purpose of obtaining an adequate remedy in such cases, resort was had to the extraordinary jurisdiction of the courts of Equity, which alone had the power of examining the party on oath, and thereby acting through the medium of his conscience, and of procuring the evidence of persons not amenable to the jurisdiction of the courts of Com

mon Law, and whose evidence therefore, it was, in many cases, impossible to obtain without the assistance of a court of Equity.

"The application to this extraordinary jurisdiction, instead of being in the form of a writ prescribed by settled Law, seems always to have been in the form of a petition of the party or parties aggrieved, stating the grievance, the defect of remedy by proceedings in the courts of Common Law, and the remedy which it was conceived ought to be administered. This mode of proceeding unavoidably left every complaining party to state his case according to the particular circumstances, always asserting that the party was without remedy at Common Law.

"In examining the provisions framed for the conduct of business transacted in courts of Equity, it is necessary first to consider, what are the subjects usually brought under their jurisdiction; and how it has happened that such adequate remedy cannot be obtained in the courts of Common Law, or more convenient remedy may be obtained in courts of Equity.

"One great source of the extension of the jurisdiction of courts of Equity, has been the invention of new modes of disposing of property, particularly in the forms of trusts, and the ingenuity of fraudulent contrivances, to which may be added, the power of disposition of all property by will. The vast increase of personal property which may be disposed of by deed or will, or distributable according to Law upon intestacy; the difficulty of obtaining complete justice under the forms of Common Law against persons accountable for property of others, as executors or administrators; or as partners in trade, or as joint owners of property; or in a vast variety of other ways in which parties may become so accountable; the demand of justice for the specific execution of contracts of various descriptions; and the complications of interests arising from intricate transactions for which the course of the Common Law, in its simplicity, can give no adequate remedy." p. 9.

The alterations suggested by the Report are generally exceedingly minute and circumstantial. Little is to be learned from the Report by us, for the intricate practice of the English Chancery does not prevail here, and the complaints against our court are entirely of a different kind. The following is the boldest measure which they seem inclined to venture on, with the aid of the Legislature; and it will be seen that our judges made no scruple of doing the same thing and much more by their own authority :

"A difficulty has sometimes been experienced, amounting to a failure of justice, from the contumacy of a party, who refuses to obey a decree or order, directing him to execute a deed or other instrument, thereby depriving his adversary of the benefit which he is entitled to derive from the judgment of the court. We propose that a power shall be vested in the court which will remedy this evil. That where a person is in prison for disobedience of an order of the court, directing him to execute some deed or other instrument, there the court, upon motion or petition, supported by affidavit that such person, upon application duly

made to him, after he had been not less than one week in custody, has again refused to obey such order, shall, if it think fit, authorize one of the masters of the court to execute such deed or other instrument, for and in the name of such person." p. 49-prop. 155.

Our Court of Equity, without any legal warrant, has made a sweeping regulation that the master shall execute every deed which the judgment of the court requires. The convenience of the practice is not to be disputed, but the stretch of power which led to the introduction of such a law, by judicial legislation, was a pernicious example-and the more to be regretted in this case, because it is a fundamental maxim that Equity acts on the person only; and this innovation confounded first principles, and removed one of the strongest barriers to unlimited jurisdiction. The Court of Chancery was like Aaron's rod, that swallowed up all the others.*

Upon that part of their inquiry, which related to the question, whether any of the business of the Court of Chancery might not be transferred to the other courts, the Report is short and unsatisfactory; particularly so, considering the experience and high character for talent of the authors. The only part of the chancellor's jurisdiction they are willing to abridge, is that of granting a commission for the examination of witnesses abroad as auxiliary to a court of Common Law. This is a very obvious suggestion, for there is no sort of reason why a court of Law should not issue such a commission. There is nothing in the power which calls for the peculiar jurisdiction of a Court of Equity; and this case illustrates the principle for which we contend, that wherever the Courts of Common Law possess the means of administering the remedy, the Court of Chancery ought not to interfere. For why should there be two tribunals to accomplish an object for which one of them is sufficient? Or why resort to an extraordinary jurisdiction, when the ordinary and regular course of the Common Law is capable of giving the same relief? It would have been worthy of the talents and great experience of the late Lord Chancellor and his associates, if they had examined this matter on principle instead of contenting themselves with a superficial observation; and had, by a judicious classification of the subjects of Equity jurisdiction, distinguished those which call for the peculiar powers of that

*By an order of Lord Lyndhurst, and the Master of the Rolls and Vice-Chancellor, dated April, 1828, many of the propositions of the Commissioners have been adopted as rules of the Court. But no order is made on the above proposition, and others of the like kind, on the ground that such alterations can only be made by the Legislature. (See 2 Russell's Reports.)

Court, from those which can be effectually managed in a Court of Common Law.

We have already stated, that from the very nature of the trial by jury, there were many subjects to which it could not apply; and these subjects formed the original and early jurisdiction of the Court of Chancery. But the early jurisprudence of England was necessarily narrow, and was remarkable for a subtle and technical way of reasoning. This was owing to the character of the times, and the logic of the schoolmen. The Courts of Common Law, far from extending, narrowed their jurisdiction still more; but the Chancellors had their minds enlarged, and their ideas of justice improved, by an acquaintance with the great civilians. They gradually took possession of all those cases in which the Courts of Law refused to interfere, where upon reason and principle, a right was acknowledged to exist, and there was nothing in the law of the land to forbid them from giving redress. The Ecclesiastical Courts attempted the same thing, but their pretensions were repelled, and their efforts to enlarge their jurisdiction constantly put down by prohibitions from Westminster Hall. The high political character of the head of the Court of Chancery, as the prolocutor of the House of Lords, and the first civil dignitary in the kingdom, saved the authority of his court-although often contested and long regarded with jealousy. It was one good consequence of these conflicts that the Chancery was taught to proceed with great moderation, and a check was put to that latitude of discretion, which, as we have seen in this State, is the besetting sin of that court. In time, the decisions in Chancery assumed the regularity of a system. It was soon perceived that many of those causes which had been hitherto carried into the Court of Equity, might be equally well disposed of in the Courts of Common Law, which now began to take cognizance of them. This is the foundation of the concurrent jurisdiction exercised by those courts over a numerous class of subjects. In former times, the obligor was obliged to resort to Chancery for relief against the penalty of a bond. Afterwards, a statute was passed to allow parties the same benefit at Law. Yet, so late as the time of Lord Hardwicke, this was a subject of concurrent jurisdiction. For a long time, the only redress that could be obtained on a lost bond was in Equity. The jurisdiction is now concurrent. Lord Mansfield was a judge of a truly liberal and philosophical way of thinking; he saw, that in a multitude of cases, there was nothing to prevent a Court of Common Law from enforcing the principles of Equity, and that it was unjust to drive a suitor to the expense

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