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observed, retained his former jurisdiction unaffected (0)), or by the Lord Chancellor sitting with one Lord Justice, or by the Lords Justices sitting together, apart from the Lord Chancellor (p). And by a still more recent act, power is given to each of the Lords Justices to sit separately as a Court of Appeal, for the purpose of hearing appeals from interlocutory orders of the primary courts (9).

The obvious advantages which result from the union of the two principles of justice, law and equity, so as to * enable one tribunal completely to

[ * 51 ] dispose of a case before it, have of late been much insisted upon,

and there is a great tendency to give jurisdiction to courts of equity to deal with a case with the same powers and means of redress that courts of law have, and correlatively to give courts of law some equitable jurisdiction, each court retaining, however, its original distinctive character in respect of its primary functions.

Courts of equity have by recent acts been successively enabled (r) and required (8) to determine questions of law in cases where it was the old prac

tice to require them to be decided by a common law court; moreRecent acts.

over, the novel power has been given (t) to summon juries for the determination of questions of fact and the assessment of damages, in certain cases, instead of granting an injunction against breach of contract or continuance of a wrongful act, or of granting specific performance of a contract. These enactments, by giving the Court of Chancery the power of dealing with a case in the same manner as a court of law would do, render its powers, in such cases, as complete as those possessed by the Roman Prætors. Again, by another act (u), courts of common law have power given them to a limited extent to deal with equitable grounds of defence to an action, and also to grant, in some cases, similar relief by injunction to that which the Court of Chancery alone previously granted.

It must not, however, be supposed that by the changes we have just mentioned, the Court of Chancery has become a court both of law and equity for all cases; otherwise it would, of course, be the only court to which suitors would ever resort in important cases, which is not the fact. The rule has been laid down (), that unless some relief is sought of the peculiar character which * alone the court could formerly grant, and unless there is a

[*52 ] proper case for such relief, the court will not interfere. A similar remark applies to the common law courts. (445) They have only a limited

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(445) A few words as to the origin, perpetuation, and application of legal principles inay be of service to the student.

Laws; their nature and objects. In every condition of civilized society there must be some customs, rules, or principles, by which rights may be investigated, duties or liabilities declared, controversies determined, and remedies enforced.

Among the advantages to be derived from entering into society are those of protection of person, and the security of property; and, therefore, men have a right, and they are in some degree compelled, to apply to the public authorities for redress when rights are with Leld, or injuries have been committed.

power of dealing with equitable doctrines. Besides, the practice and mode of procedure, as we shall hereafter see, are still entirely distinct. There is, therefore, at present, no fusion of the two courts, and it remains equally

The natural right of individuals to redress wrongs, or to take the law into their own hands, cannot exist in a well-organized state of society, except in a few instances ; and the general rule is, that all rights must be declared, and all remedies enforced by the proper tribunals in accordance with settled principles and the forms of law.

The elements or principles of a system of laws may be comparatively simple in form, and few in number, when considered with reference to their origin in an early stage of society ; but, as the wants of society increase, the system will expand until it extends to and includes every case which, according to justice, and the public interest, requires consideration.

It is one of the great merits and advantages of the common law that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the particular cases which fall within it. These general principles of equity and policy are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general fitness and common convenience, but still more so by judicial exposition; so that, when, in a course of judicial proceeding, by tribunals of the highest authority, the general rule has been modified, limited and applied, according to particular cases, such judicial exposition, when well settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases, under like circumstances.

The effect of this expansive and comprehensive character of the common law is that, while it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy — although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurrence, in the business of an active community - yet the rules of the common law, so far as cases have arisen, and practices actually grown up, are rendered, in a good degree, precise and certain, for practical purposes, by usage and judicial precedent. Another consequence of this expansive character of the common law is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in judicial decision, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances.

The consequence of this state of the law is, that, when a new practice or a new course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice, and policy, which underlie the particular rules of the common law, will still apply, modified and adapted, by the same consideratious, to the new circumstances. If these are such as give rise to controversy and litigation, they

like previous cases, come to be settled by judicial exposition, and the principles thus settled soon come to have the effect of precise and practical rules. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263, 267, 268 ; Bell v. The State, 1 Swan. (Tenn.) 42, 43.

With the advancing state of society, new questions are constantly arising for decision, and the courts adapt the practice and course of proceedings to the existing condition of things, instead of adhering to forms and rules which were established under different circumstances; and they do not decline the enforcement of rights or the administration of justice, because there is no remedy according to the old forms or rules. Wallworth v. Holt, 4 Mylne & Craig, 635; Osborn v. Gillett, L. R., 8 Exch. 88, 97.

The principle upon which the courts proceed is, that the common law does not monld the habits, the manners, and the transactions of mankind to inflexible rules, but adapts itself to the business and the circumstances of the times, and keeps pace with the improvements of the age. Lyle v. Richards, 9 Serg. & Rawle, 351.

Our system of common-law rules and of equitable principles consists of the accumulations of several centuries, as is entirely evident when it is remembered that so much of our law is derived from that of England. As to the adoption of the English common law in this


important, now as formerly, to understand the distinction between law and equity, and the nature of the redress obtained in one court and in the Other: (416) To explain the principles which govern a court of equity, and

country, see Vol. I, p. 42, note 14. So extensive, so complicated, so useful, and so practical a system could not be the work of one man, nor of one nation, nor even of one age. Its vast collection of adjudged cases is the growth of centuries; and, from a comparatively small pumber of decisions in the early times, the number has constantly increased, and the system of jurisprudence has expanded from time to time as the constantly recurring demands of men have presented questions to the tribunals for decision, until the result has been the establishment of a system of legal and equitable jurisprudence which is adequate to the demands or the necessities of a great commercial nation.

In the construction of this system the courts were constantly in the habit of applying to new combinations of circumstances those rules of law which were to be found in judicial precedents, or in works treating of legal principles ; and, for the sake of attaining uniformity

, consistency, and certainty, those rules or principles, unleas clearly unreasonable, or inconsistent, were applied in all cases as they arose. But, notwithstanding the great number and variety of decisions, there always have been, and there are now, cases constantly occurring which are new in principle, or of first impression. So, too, there are cases which, though not new in principle, yet present questions which have never been determined. In all such cases, the courts avail themselves of the vast collections of principles which have been settled as law, and then, from the analogies of the law, and the reason and justice of the case, they decide in such manner as will best subserve the rights of the parties and the public interests, if such decision should be followed as a precedent.

In addition to the decisions of the courts, the legislature has enacted a vast system of statute law, in relation to rights and remedies. It is from this extensive system of legal and equitable jurisprudence, and from the various statutes of the State, that a knowledge of the practice of the courts is to be obtained. And while engaged in the study of that practice

, it will be constantly borne in mind, that many of its rules are statutory enactments, instead of being principles established by the decisions of the courts. Yet, whenever the statute has not provided a rule, the courts are at liberty to resort to the decisions, for materials to supply the defect.

In the creation or establishment of laws, it is the province of the legislature to determine what is best for the public good, and to provide for it by proper enactments. The province of the judge is to expound the law, instead of making it. The written law he is to ascertain from the statutes; and the unwritten law he is to find in the decisions of his predecessors, and of the existing courts, or from the text-writers of acknowledged authority, and upon the principles which are clearly to be deduced from them by sound reason and just inference.

(446) The distinction between remedies at law and those in equity is important, and ought to be well understood by the student. This note will point out some of the general features. of a legal action, and in the next note the subject of equitable actions will be noticed.

In general. Legal rules and principles must be expressed in general terms, and, there.. fore, it must sometimes happen that there are cases within the words but not within the reason or the spirit of the le; while there are other cases within the meaning but not within the words of it. The reason of this is evident on the slightest examination, since it will readily be conceded that it is impossible for any one to foresee or provide for the end. less series of complicated occurrences which must take place in society. And, whenever a case occurs which does not fall within the provisions of the general rules, there is a defect to be supplied, or injustice must result from that cause. In many of these cases, courts of equity have devised and applied such rules as a reasonable and just man would have pro. vided bad he foreseen the circumstannces of the case, and had he authority to establish a rule for it. In some cases the legislature have enacted laws designed to provide remedies or rules in which the common law was found to be deficient.

The remedies afforded by the common-law courts are limited by the rules of the common law, which, as a general thing, are fixed and unbending; and one of the settled maxims of that system is, that a decided point furnishes the rule for future similar cases. In addition

VOL. II. -7

to this, the character of the process, pleadings, mode of trial, and the judgment all tend to reduce the application of remedial justice to the enforcement of these fixed rules, instead of attempting to investigate the complicated equities which exist in so many cases, and in which no adequate relief is to be obtained except through equitable interference. From this general statement it will be seen that one of the distinguishing features of common. law remedies is, that they are usually unattainable except by the application of fixed, distinct rules, through the aid of a court, which seeks to apply and enforce these general rules to all cases, instead of investigating and securing any peculiar equities which may exist in some particular case or class of cases.

This system, which may seem harsh in some of its aspects, has, nevertheless, one very valuable feature, and that is, it is admirably adapted to the important end of securing cer. tainty and uniformity in the administration of the law, a result which is invaluable to a commercial people.

Legal actions relate to some act done or omitted. It is the object of the law to give a remedy in every case which justly requires it. For this purpose the whole body of the law was created; and every important right is so guarded by familiar and public laws that each person may know what those rights are, and what remedy is afforded for an invasion of them. Every person is bound to know the general rules of the law or to submit to the consequences resulting from his ignorance, or his infringement of them. He who wrongfully invades the possession of his neighbor must respond in damages corresponding to the injury done. So he who inexcusably breaks a valid contract must make good the loss which the other party sustains in consequence.

In these cases, it will be observed, the law does not interfere until after the wrongful act has been committed, and it then holds the wrong-doer accountable for the damages resulting from his acts. The whole remedy consists in compensation to the injured party by way of damages assessed against the party in the wrong. The coercive power of the law is lim. ited in its influence upon the parties, by declaring that every violator of its principles must respond in such damages as may be legally assessed against him, and enforced against his property or his person. It is by virtue of this system that most wrongful acts are prevented, and most contracts are performed, for the remedy by way of damages is a most effective one when properly administered. Beyond this species of remedy, the common law does not, as a general rule, extend; and, where a party would prevent the commission of a wrong, or would compel the specific performance of a contract, by means of the process of the courts, he must resort to a court of equity, where such remedies are one of the peculiar features of the system. In some peculiar cases a resort to a court of equity is to be pre. ferred, because no damages probably attainable would be as valuable as the equitable relief which is certain, if sought. But, as a general rule, the courts of law are adequate to all the emergencies of the case, and they enforce most of the remedies which parties seek through the interposition of the courts.

Compensation in damages, or not at all. As has just been seen, the law givęs damages for past injuries. But, beyond this relief, a common-law court does not go, for it will not interfere to prevent the violation of a right. It will give damages for the breach of a contract, but a court of equity will do more ; it will anticipate the event, and restrain a person who merely shows an intention to break his agreement. It is in those cases in which the dam. ages for past acts would be so small as not to afford an adequate remedy, that the powers of a court of equity are invaluable. In one of these classes of cases the relief obtained is remedial, in the other it is preventive; or, in other words, in one case it is legal, in the other equitable. Where these courts are separate, it is a general rule that neither court will usurp the functions of the other. And therefore if the injury complained of be com. pleted, so that compensation alone can be awarded, a court of equity will not interfere, even though it might, in its discretion, have power to do so.

So, on the other hand a court of law will not entertain an application where no breach of contract has occurred, or no wrongful act has been done, even though it has power to issue an injunction under some circumstances.

In those States in which legal and equitable remedies are enforced by the same court, some of these distinctions may seem to be of no importance, and yet it is to be remembered that the mode of proceeding which is to be adopted must be either legal or equitable as the case may require.

Affords no relief outside of the general rules. At common law, simplicity and certainty in the practice is a prominent object, and, while the rules are so general as to be readily applied to the facts of each particular case, yet they cannot be so extended or varied as to meet the requirements of a system so complicated as some of the remedies afforded by a court of equity. And it is, therefore, a general rule, that the common-law courts do not afford any relief outside of its general system of legal remedies. If other relief is sought, a different court must furnish it, or the party may be remediless.

At common law, the judgments are uniform, simple and invariable, according to the nature of the action. In equity, the relief is modified to suit all the exigencies of the case fully and circumstantially; authoritative and binding declarations are made concerning the rights alleged ; specific things are directed to be mutually done or permitted ; and the conduct to be observed by the numerous parties is pointed out, although such parties may sustain relations of widely different characters, or be influenced by interests of a conflicting or important nature.

Do not compel specific performance of contracts. This subject has already been aliuded to, but it is important that the student should understand the nature and the extent of the powers of courts of law, and of equity, if he would act intelligently in the pursuit of remedies.

There is no class of cases, perhaps, in which the want of power in a common-law court is more seriously felt, than in this one relating to the performance of contracts. In many cases, such a performance in good faith is of the utmost importance to the party who asks that it be carried out. His plans and other contracts may bave been based upon its due execution, and his liabilities to others, as well as other consequent losses, may be such that no damages which would be given would make good. There are some instances, in which the contract relates to the personal conduct of a party, which no court will undertake to require to be literally performed, as a contract to sing at a theater, or write a book, or keep an inn, or build a house, for the reason that no degree of compulsion which the court could exercise would secure the desired result. But if the contract contains a negative clause, such as an agreement not to sing at any other theater, or not to write books for others or the like, there a court of equity will interfere by restraining the party from violating the negative clause. But in all such cases a court of law would be powerless except to give damages for the breach of the contract. The student will recollect that these remarks treat the matter as though there were separate courts of law and equity, instead of a single court which exercises the powers of both those courts.

Does not prevent the commission of wrongs. For injuries to real estate, the common-law actions of trespass, waste, nuisance, and the like, are the remedies usually sought. But, where the injury, if once done, would be irreparable, courts of equity sometimes interfere to prevent the commission of the wrongful act, and this relief a court of common law cannot grant. Any exception to this rule will be found to have a statutory origin.

Not adapted to complicated equitable cases. It is the tendency of any system of mere legal principles, when reduced to a practical application, to fail of effecting such justice between party and party as the special circumstances of a case may require, by reason of the minute. ness and inflexibility of its rules and the inability of the judges to adapt its remedies to the necessities of the controversy under consideration. And it is accordingly found, that the rules of the common law, when reduced to practice, sometimes become the means of injustice in cases in which special equitable circumstances exist, which the court cannot take cogni. zance of because of the precise nature of common-law principles, their inflexible character, and the technical rules of pleadings and practice which were designed for no remedies except such as the common law afforded. To remedy these inconveniences, and to prevent injustice, the flexible, convenient and just system of equitable remedies was devised; until there are, at the present time, but few, if any, cases, in which the courts will not furnish all proper relief, in some form, if applied for in due time and in a proper manner.

Powers of the court terminate with the judgment, and its enforcement. At common law, a final judgment, when once entered, exhausts the powers of the court, except in the way of proceedings to review or reverse it. There is no power to open the judgment for the mere purpose of rendering a different judgment upon the same facts, or for the incorporation of facts not noticed upon the rendition of the judgment. If the judgment was regular and legal upon the facts established, the judgment is final and conclusive. If it was irregular, or illegal, the remedy is by way of proceedings to obtain its reversal. And even an action

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