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of a double litigation when complete justice could be obtained in a single suit.

Our judges, soon after the Revolution, attempted something of the kind, but in the application of the principle, they were not always successful. They allowed a defendant, in an action on his bond, to rescind his contract, but they unluckily forgot half the case while they were about it, and the consequence is, that the defendant keeps the land and the money too. A moderate degree of reflection would have been sufficient to show that a Court of Law, in this case, could not enforce the principles of Equity, because it could not do justice to both sides.*

The proper mode of regulating the boundaries of jurisdiction between the courts, is certainly by an act of the Legislature.Something has been done in that way, but not effectually. The act of 1791, provides a mode for obtaining satisfaction of a mortgage in some cases at law. There is no good reason why the remedy should not be general; and even in the cases to which the act applies, it still continues a subject of concurrent jurisdiction-but if the Court of Law can deal with the subject effectually, the jurisdiction of Equity is merely superfluous. Why should a suit be brought now on a lost bond, more than on any other, since the remedy, in each case, is equally plain at Law? Contribution between sureties is still a subject of concurrent jurisdiction. There was a good reason to sue in Chancery formerly when an action at law would not lie; but with the reason the practice ought to cease. Relief of sureties, where the creditor has given time to the principal, or has varied the terms of the contract, is still considered, in this State, an equitable defence. But the principle is familiar to Courts of Common Law, and is every day applied in actions against insurers and parties to a guaranty. And it certainly is worthy of the attention of the Legislature whether the jurisdiction of Chancery, in all such cases, should not be taken away.

It has frequently been a subject of wonder, how in a small State like South-Carolina, with comparatively few inhabitants, and the titles of property so simplified that the business of a conveyancer, as a separate profession is unknown, we should have found work for five Chancellors. But, in fact, our Court of Equity seldom is so happy as to have a proper Chancery suit; its chief business has always been in trying legal questions. One most fruitful source of employment is, the practice of granting injunctions against the sheriff. There is an execution against A. and his negroes are seized; some one comes forward and

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suggests that the negroes do not belong to A. Upon which, an injunction is granted, and the court sits to try the legal titles of A. and B. to the property. This is a proceeding perfectly unknown to the English system;* and it is apparent, that in such cases, the court is trying an action of trover. It is true that such injunctions are frequently granted at the application of some trustee for the wife or children of A.; but this makes no difference, for the trustee is the legal owner, and is perfectly free to sue at law. The only good reason for the practice is, that the sheriff (in the low country at least) is generally a nulla bona man, as it is called; the number of unsatisfied executions in the hands of his predecessor against him, form generally a very strong recommendation, and perhaps deservedly so, to the office. A judgment, in an action of trover therefore against an insolvent, would be but an inadequate measure of relief to the suppliant and daily orator of the Court of Equity. We are happy, however, to see that the Legislature have recently, by an amendment to the proceedings in detinue and trover-giving the plaintiff a right to security for the property itself, taken away the chief ground for the continuance of this practice—and we hope that an act will soon be passed to withdraw, effectually, all cases of trover and detinue from the Court of Equity. This measure is rendered absolutely necessary by the increased facility of granting injunctions, since the commissioners in Equity have been invested with that power.

The changes which we have recommended would be attended with a great saving to the suitors, and to the public. A single Chancellor would be perfectly adequate to the business of the country, provided he were not required to hold a court in every district, and to try cases of law. Of causes that properly belong to his court, the most numerous class by far, consists of suits against executors and administrators-and the appointment of guardians. But, since the decision in Howard and Baldric, establishing the right of the ordinary to appoint guardians, it is

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Asplin made an agreement with Garstin, on the 9th of September, 1815, to lease his house and furniture to him; and on this agreemment, Garstin took possession. A judgment was afterwards recovered against Asplin, and on the 23d of November, 1815, the sheriff seized his goods in Garstin's possession. The latter filed a bill against the creditor and the sheriff, and moved for an injunction.

The Vice Chancellor.-This is a legal contract for a ready-furnished house and land, and the party has a possessory right. If his possession is intruded upon, he has a remedy at law. The sheriff has no right to seize. If he does, it may be very injurious to the plaintiff, and it is to be regretted; but this court cannot interfere where there is a legal remedy. The right to take in execution, is a queston of law. Injunctions would be applied for every day, where executions were improperly issued, if the court were to assume a jurisdiction in such cases. There is no instance of stopping a proceeding at law under such circumstances.-Garstin vs. Asplin, 1 Mad. Rep. 151.

unnecessary to resort to the Court of Chancery for that purpose. Nor do we think that the exercise of this power, by the ordinary, is attended with any inconvenience, while, on the contrary, it is a great saving to the suitors in point of expense. It is true the ordinaries are not likely to make many inquiries into the fitness of the guardian, nor the situation of the infant's estate; but the practice is just as loose in the Court of Equity, and guardians are appointed there without any inquiry at all. Every thing is taken on the word of the solicitor, and the only question which the judge asks is, whether the infant chooses the person in court, and whether that person is willing?

A great saving also might be effected as to the settlement and distribution of estates, by referring those cases more frequently to the Court of Ordinary. Where the estate is clear of debt, and the question is simply respecting the executor's accounts, that court is perfectly competent to decide. The executor is now compelled to pass his accounts before the ordinary, and may be cited before him for that purpose. It would be a wholesome regulation to require the complainant where the suit is merely for distribution, to cite the executor, in the first place, before the ordinary; and to allege in his bill, specifically, the errors in the accounts, admitted by the ordinary, against which he excepts; or to show that the defendant has refused to obey the citation, or to comply with the ordinary's decree.

The objections to our late Chancery system, as cumbersome and expensive, have induced some persons to recommend the delegation of Chancery jurisdiction to the Common Law judges. But this, we apprehend, would soon merge the Common Law in Equity, and Equity in the discretion of the judge. To fill the State with Chancellors, is a sure way to render the law vague and uncertain. From the very structure of the court, much depends in Equity on the discretion of the judge-and froin the nature of Equity, as embodied in the artificial and elaborate system which we have adopted, it requires a highly gifted mind, with long habits of study and experience, to administer the jurisdiction with ability. Suits in Equity are not always carried on by a plaintiff and defendant really opposed to one another, as in actions at Law. Infants and persons not sui juris, are very often parties on the record, and often in the management of trusts, there are creditors and others who are deeply interested in the subject, and who are represented by executors or trustees, having an interest or feeling in opposition to them. Much is done by interlocutory and occasional orders, which are not the subject of appeal. It is often the interest of those before the court, to get the judge to relax some rule of the court, or otherwise to

interfere in a case of doubtful propriety. Among a variety of Chancellors, some one will generally be found to grant what is wished in such cases, and they will all be tried until one is found who will do so. Then the precedent is quoted to the uext, and the argumentum ad verecundiam is brought in aid of other questionable grounds of judgment. At length it becomes uncertain whether there is any rule at all.

The rules of that part of our law which is called Equity, admit of many distinctions and abound in exceptions: those of the Common Law are general and positive. Thus the Common Law is said to be strict, and Equity flexible. This is the true reason why so much depends in Equity on the discretion of the judge. But this discretion ought not to be arbitrary, although the rules by which it is bounded are necessarily less definite than those of the Common Law. But however wide the discretion may be, which the rules of the court allow, there will always be cases of compassion in which the judge is tempted to go beyond the rule; and, in those cases where the parties are not adversary as we have before explained, the facility of trespassing on the rule is very great. Some judges will appoint the husband a trustee for the wife; which is one way of breaking the trust, and spending the children's fortune. While men are at their ease they are always desirous of treating the estate of the wife and children as if it were their own; and when they are pressed by creditors, they are anxious to show that it does not belong to them at all. An easy judge will lend his aid to spend it, and another to get it back again. If the Common Law judges are confined to their proper jurisdiction, the rules of Law will be strictly applied and if the Chancery jurisdiction is administered by a single judge, the discretion of the court will be kept within bounds by his own consistency. But the union of the powers of both courts, would lead, insensibly, to the blending of Law and Equity, which would relax the rules of law, and increase the discretion of the judge: and the number of Chancellors, each ruling according to the bent of his private way of thinking, would render that discretion vague and arbitrary. On the jury, any change which increases the discretion of the judge must operate injuriously. They must either assume a corresponding license of discretion to keep pace with the bench, or they must accommodate their verdict to the opinions or caprice of the judge; and in either case, it appears to us their office might as well be abolished. Indeed, the verdict of the jury would be likely soon to become a mere form for if it did not conform to the discretion of the judge, it would be brought to the VOL. III.-No. 5.

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standard by an injunction. On the law of evidence, the effect would be equally disastrous. Every one knows that in the Court of Chancery the same pains are not taken which the Courts of Law employ to exclude improper evidence, because it is supposed that it can do no harm, and that the judge will not be biassed in forming his judgment by illegal testimony. The habit of receiving it, however, will gradually extend to all cases, and affect not only questions of property, but also those of life and liberty. It was the opinion of a great judge that if the jurisdiction of Law and Equity had been committed to the same court, the Common Law would have sunk long ago. We have endeavoured to show that the trial by jury is the real cause of the distinction between Courts of Common Law and Courts of Equity, and if the original separation of those jurisdictions was founded on a solid and substantial reason, they ought still to be kept distinct. But, at the same time, the limits of Chancery jurisdiction should be settled on principle, and strictly confined to those cases to which the course of the Common Law, and the trial by jury do not apply. To preserve the trial by jury in its purity, the jurisdictions of Common Law and Equity should be committed to separate courts: and to secure the respectability of the Chancery, and prevent that court from running wild, a single person will administer the jurisdiction better than a greater number, subject of course to the supervision of the Court of Appeal as it exists at present.

Lord Redesdale has taken a different view of the subject from the other commissioners: he points out, with great force and acuteness, many inconsistences in the proposed regulations, he thinks the commissioners have began at the wrong end-and condemns the whole of their scheme of reform as inadequate and superficial. We are very much inclined to agree with himnon tali auxilio-serious and inveterate disorders are not to be cured by such skin-deep applications. His account of the old and the new practice is highly interesting. In former times, the business of the Court of Chancery was done by the clerks, seventytwo in number, who were the only attorneys of the court.

"The whole business was transacted in one office, in which, each six-clerk had his separate apartment, for the purpose of transacting his business, and each of his ten sworn clerks, and two waiting clerks had a seat in the public office in which the business entrusted by the suitors to their care, was transacted. The office was near the residence and office of the Master of the Rolls, who had a general superintendence over the six clerks and their under clerks; and the offices of the several Masters in Chancery, and of the several other officers connected with

Lord Hardwicke.

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