date

4 July 1805 Evidence Introd
4 July 1805

Evidence

Introd Jurisprud.

Ch. II. Vices

''.2 [...?]

On the subject of the power of a Court of Equity the following is the information given as by /from/ the highest living authority among methodical writers.

1. That it is difficult to discover by what means the Court of Justice in England, usually termed Courts of Equity, have obtained the jurisdiction which they now exercise. Accordingly no such discovery is there communicated.

2. That their authority and the extent of it have been subject of much question. Accordingly, for any thing that is here done to put an end to such question, so they do or may still continue.

3. That the limits on their duty seem now to be in a great degree, though perhaps not compleatly ascertained. "To indicate the limits of a man's power (if that be what is here meant by duty) is to show in respect of such and such prevents what he can not do: shewing what he can or does do indicates the course of the power, but does not indicate nay limits to it. Diverse the things which the Court do and therefore can do are spoken /[...?]/ of in the course of the book. But if any thing of which it is said that they can not do it, no mention is to be found.

4. That a cause is the cause which has tended to prevent the bounds between the line[?] jurisdictions from being compleatly ascertained ..." is "the liberality with which of late years the Courts of Common Law have noted and adopted the principles of decision established in the Courts of Equity." This /That by/ liberality the whatever limits may have been previously set to the power of the Courts of Common Law may have been proportionably enlarged will not here be denied that by the same liberality any limits have been set to the power of the Courts of Equity is not assisted nor could be (as it should seem) consistently with the truth of things. The number of the individual cases over which the Courts of Equity exercise their jurisdiction /power/ may be more or less reduced by this liberality, but not the number of sorts of causes. Courts of Equity do prohibit men from carrying their causes to Courts of Common Law: Courts of Common Law do not prohibit men from carrying causes to Courts of Equity.
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    Description: 18 July 1805

    Evidence

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    Introd. Jurisprudent

    Ch. II. Vices

    ''. ex post facto

    5. "At the Court of Chancery assumes a general jurisdiction in cases not within the bounds or beyond the powers of other jurisdictions." This, four or 8 pages after and in a sort of parenthesis. To any penal purpose /purpose purely penal/, in and by any suit of the purely penal class, unquestionably not true. The learned author it is plain, had not any such case in his mind.

    6. That "it is not a very easy task accurately to describe the jurisdiction of our Courts of Equity." This in a note.

    7. "That" those who have attempted it have generally failed." This in the same note.

    8. That "The apparent necessity of making the attempt for the purpose of elucidating the subject of the following pages" (viz - "the Pleadings in suite in the Court of Chancery" (the busiest of the Courts of Equity) "must be the apology for what is there offered." This also in the same note.

    From the whole tenure of the above information one conclusion may it should seem be drawn with safety /without much danger of error/ viz - that the power of a Court in English Court of Equity has no known limits. [that the learned author knew of now is ascertained by the best evidence: and for as much as he does not, neither does any body else, though but matter of inference, is one inference, the legitimacy of which seems not in much danger of dispute.]

    What does not seem equally clear, is - what this task was, in /in respect of the execution of/ which "those who have attempted it have generally failed," which it was so unnecessary to execute, and which, in contemplation of such failure and such necessity, the learned Author undertook to execute and concerned himself to have executed. Was it, the "describing what has been done and therefore can be done by a Court of Equity? This is what nobody has failed in: this is what every body has done. Were it the describing what can not be done by Court of Equity? This is what the learned Author himself has not so much as attempted.

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    The same cloud /covenant/ which in the region of the King's Bench hangs /has been spread/ over the rule of action and standard of obedience extends to the other great court on the other side the passages[?].
  • Title: [21 July 1805 Evidence Introd]
    Description: 21 July 1805

    Evidence

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    In the Courts of Common Law the business of procedure is carried on upon one plan. In the Courts of Equity the business of procedure is carried on upon another plan as different from the other as any that can be conceived. Two plans here different for the accomplishment of the same object may be both wrong; and if to run counter to every end of justice is to be wrong are both wrong, but they can not both be right.

    Not only did they travel /wish/ in use the execution of the same work /sort of business/ upon discordant and repugnant principles, but among the occupations of one of these sort of Courts is that of stopping and undoing the work of another /the other/. [When Penelope unravelled by night the web she had been compelled to weave by day, it was for the declared proposed purpose of impeding the work and not of forwarding it.] It To do this and that and other is contrary to equity and good conscience. So says /saeth/ the suitor in Equity to the Court of Equity. It is so it is indeed contrary to equity and good conscience, says the Court to the Plff in effect, as often as upon the ground /strength of the [...?]/ then made by the Plff it acceeds to his demand. Contrary to equity and good conscious? to do what? To do that very thing which the Courts of Common Law are constantly employed /occupied/ in doing, because the not doing it would be contrary to justice.

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  • Title: [10 July 1805 Evidence (1) Introd]
    Description: 10 July 1805

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    Introd

    Ch. Complication Table

    ' Equity cases

    These cases to the treatment of which this pharmacopoeia of the Common Law (Equity Law) Courts is radically incompetant may be stiled chronical cases. They require the continued action of the operator, during an indefinate length of time.

    Fraud, Trust, Accident constitute the matter of the peculiar jurisdiction of a Court of Equity, observed the first lawyer who bethought himself of a writing a methodical treatise on the business of a Court of Equity. Fraud, trust, accident and so forth has from that time to the present been repeated by each succeeding writer on the same subject.

    Fraud, trust, accident it has in the meantime been discovered constitute who the matter of the jurisdiction of the old Courts that are not Courts of Equity. Since this discovery has been made, no man pretends any longer to know /to be able to conceive/ what it is that constitutes the peculiar business of a Court of Equity in contradistinction to that of a Court of Common Law.