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to one and the same class of courts without any discrimination between law and equity.1 But this surprise is founded almost

1 3 Black. Comm. 441, 442.

States above cited; but an examination of the cases cited will show that the only one which affords the court any support is Insurance Co. v. Bailey, 13 Wall. 616; and that case itself would not have been held good law in Massachusetts (not to mention England) at the time of Jones v. Newhall. Commercial Ins. Co. v. McLoon, 14 Allen, 351, cited with approval in Fuller v. Percival, 126 Mass. 381.

The result of the two cases referred to was the passage in 1877 of a statute declaring that the Supreme Court 'shall also have jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisdiction, and in respect of all such cases and matters shall be a court of general equity jurisdiction.' Pub. Stats. ch. 151, § 4.

It would seem that under this provision there could be no doubt that the Legislature intended to confer upon the court jurisdiction as developed in equity in England at that time (1877). See Knatchbull v. Hallett, 13 Ch. D. 696, 710, Jessel, M. R., quoted in note to § 56, infra. At all events it appears to have been the view of the court in Nudd v. Powers, 136 Mass. 273, 278, that the existence in Massachusetts of a remedy at law, though perhaps plain, adequate, and complete, was not ground for refusing jurisdiction of a case arising within the jurisdiction of the English Chancery. The bill " may be sustained,' said Holmes, J., 'to declare and enforce a charge, the legal remedies for which, if any, are either derived from equity inadequate.'

or are

It has also been held in Massachusetts since 1877 that equity will entertain jurisdiction to decree the delivery up for cancellation of an apparently


valid overdue negotiable note, not already sued upon, to which there would be an available defence of fraud at law. Fuller v. Percival, 126 Mass. 381. And see the suggestion of the court in sustaining a demurrer to the bill in Anthony v. Valentine, 130 Mass. 119, a bill to enjoin a suit at law upon a promissory note. There is no allegation that it was obtained by fraud, accident, or mistake.' And that equity will, elsewhere at least, grant relief against a forged note valid on its face, see Strafford v. Welch, 59 N. H. 46; Huston v. Roosa, 43 Ind. 517; Huston v. Schindler, 46 Ind. 38; Hardy v. Brier, 91 Ind. 91; post, §§ 700, 701. The case of Fuller v. Percival, supra, was clearly correct on general equity jurisdiction, if not on a narrow rule, for no remedy at law can be as adequate as cancellation; and Suter v. Matthews, 115 Mass. 253, though decided before 1877, may well be doubted, in any view. Before the decision of this case of Suter v. Matthews the same court had sustained a bill alleging that the defendant had obtained a policy of insurance by fraud, whereby an apparent cause of action had arisen against the plaintiff, and praying the court to order the policy to be given up for cancellation. Commercial Ins. Co. v. McLoon, 14 Allen, 351, cited with approval in Fuller v. Percival, supra. To the same effect, London Assur. v. Mansel, 11 Ch. D. 363, Jessel, M. R. ; Hoare v. Bremridge, L. R. 14 Eq. 522; s. c. 8 Ch. 22; British Assur. Co. v. Great Western Ry. Co., 38 L. J. Ch. 132; s. c. on appeal, Ib. 314. But see Insurance Co. v. Bailey, 13 Wall. 616, supra.

And since 1877 the broad rule has been conceded that cancellation may

wholly upon an erroneous view of the nature of Equity JurisIt arises from confounding the general sense of


be had of any invalid contract in the possession of a defendant, if the invalidity thereof is not apparent on the face of the paper, and if there is danger that the evidence to support a defence to it at law may be lost by the delay of the other party to sue upon it. Anthony v. Valentine, 130 Mass. 119. Indeed this ought to be true in any view of the statute, without the act of 1877. To an action at law upon a written instrument of any kind, apparently valid, there may indeed be a perfect and complete defence; but (1) the opportunity to make that defence may be lost by studied delay of the other party to sue, and (2) in any event mere defence, however perfect, is not relief. The relief desired is different in kind and efficiency from the defence available. Compare the language of the court in Oelrichs v. Spain, 15 Wall. 211, 228, quoting Boyce v. Grundy, 3 Peters, 210, 215, that the remedy at law must be 'as practical and efficient' as the remedy in equity, to cut off equitable jurisdiction. See also Merrill v. Allen, 38 Mich. 487. It is conceived that where A has wrongfully obtained or wrongfully withholds from B a written instrument which, not disclosing its own invalidity, may therefore be used unjustly and harmfully against B or his privies, A should be required to surrender the same, at least if he does not bring suit upon it. See further as to cancellation, infra, § 86; infra, §700, and the editor's note thereto.

But on the other hand the Supreme Court of Massachusetts have recently decided in Husband v. Aldrich, 135 Mass. 317, contrary to the rule in Hess v. Voss, 52 Ill. 472, that equity has no jurisdiction in that State to order partition of land between tenants in common; though equity has apparently had exclusive jurisdiction of such cases

in England ever since 1835, when the writ of partition was abolished; 3 and 4 Will. 4. ch. 27, § 36; Bailey v. Sisson, 1 R. I. 233, 236; and before that time equity had concurrent jurisdiction. Hess v. Voss, supra; Burhans v. Burhans, 2 Barb. Ch. 398, 404; Bailey v. Sisson, supra; post, §§ 646 et seq. Husband v. Aldrich however proceeded mainly on statutes relating to partition, and the jurisdictional act of 1877 was not mentioned. See again Dole v. Wooldredge, 135 Mass. 140, where the court speak hesitatingly about jurisdiction.


The result is that Equity Jurisdiction in Massachusetts is in a state of uncertainty even with the statute of 1877. Indeed while jurisdiction has certainly been enlarged, it may be difficult to determine what the statute means, though properly considered to have extended the jurisdiction to the bounds of the English Chancery. so doing has it brought with it the nice distinctions, sometimes standing upon no clear principle, that have been adopted and are still maintained in England? See e. g. Ramshire v. Bolton, L. R. 8 Eq. 294, 299. However it is clear that the Legislature of Massachusetts intended, by the act of 1877, to do away with the test of a 'plain, adequate, and complete remedy' to be had at law under the jurisprudence of that State, and to substitute the broader jurisdiction of the English Chancery. To admit, as was admitted in Jones v. Newhall, that the English courts would take jurisdiction of the case, would now be decisive, if the intention of the Legislature is fully carried out.

Cases of mutuality of relief, cancellation, and partition are not the only ones that have created confusion in regard to jurisdiction. In some States it has been held that if disclosure of

equity, which is equivalent to universal or natural justice, ex æquo et bono, with its technical sense, which is descriptive of

the facts sought by a bill of discovery can be had in a suit at law in aid or defence of which the disclosure is desired, a bill of the kind, not seeking other proper relief, cannot be maintained. Hall v. Joiner, 1 S. Car. 186; Riopelle v. Doellner, 26 Mich. 102 ('per curiam '); post, p. 78, note (b). But this has been denied. Colgate v. Compagnie Française, 23 Fed. Rep. 82, 85. See post, p. 70, note (b). And except upon the narrow construction of the terms 'plain, adequate, and complete remedy at law,' it cannot be upheld. Shepard v. Brown, 4 Giff. 208, 218.

There are doubtless still other cases. With regard to the mooted question of fraud as a ground of jurisdiction in equity, it may be conceded perhaps that in a simple case in which nothing is sought in the bill but damages, equity should not in this country entertain jurisdiction. Ambler v. Choteau, 107 U. S. 586. And in England see Ogilvie v. Currie, 37 L. J. Ch. 541. But see Hill v. Lane, L. R. 11 Eq. 215, 220; Ramshire v. Bolton, L. R. 8 Eq. 294. And possibly so, as a matter of discretion merely, of fraud generally, where all relief asked for can clearly be given as well at law; though not where there is any doubt on that point. Green v. Spaulding, 76 Va. 411; Youngblood v. Youngblood, 54 Ala. 486; Hipp v. Babin, 19 How. 278; Huff v. Ripley, 58 Ga. 11; Ellis v. Lanier, 44 Ga. 9. Nor will intent to commit a fraud give jurisdiction to equity if the act to which the intent attaches is not a matter for equitable cognizance. Winegar v. Newland, 44 Mich. 367. And there are also special cases, as in removing clouds or quieting title to lands, and in obtaining relief from illegal taxes or assessments, in regard to which the jurisdiction of equity is deemed to

have been restrained by statute. See the editor's note to § 700, post.

But the test of the existence of a remedy at law, however adequate, cannot be final even upon a narrow construction of statutes creating Courts of Equity; for it may be that a remedy once incomplete at law, and therefore giving occasion for the interference of equity which has been improved, has been enlarged and made complete in the ordinary tribunals. This will not take away jurisdiction from equity. Shotwell v. Smith, 5 C. E. Green, 79; Sweeny v. Williams, 36 N. J. Eq. 627; Segar v. Pratt, 20 Gratt. 672; Hinchley v. Greany, 118 Mass. 596; Clouston v. Shearer, 99 Mass. 209; Pratt v. Pond, 5 Allen, 59; Labadie v. Hewitt, 85 Ill. 341; Lee v. Lee, 55 Ala. 590, 598; Nudd v. Powers, 136 Mass. 273, 278; Jones v. Newhall, 115 Mass. 244, 250. Contra, Hall v. Joiner, 1 S. Car. 186, 190; Riopelle v. Doellner, 26 Mich. 102, 105. The last two are the cases on discovery already referred to.

Again Courts of Equity will assume jurisdiction over their own officers (e. g. solicitors) though the Common Law Courts might afford redress. Chapman v. Chapman, L. R. 9 Eq. 276, 294. See In re Whitehead, 28 Ch. D. 614. And, at least in England, the sovereign power may also claim relief where it will. Attorney-Gen. v. Tudor Ice Co., 104 Mass. 239, 243; AttorneyGen. v. Galway, 1 Molloy, 95, 103. And see State v. Alder, 1 Heisk. 543. On the other hand it is said that the Legislature cannot give a court which acts without a jury power to determine a legal right except upon some equitable ground. Haine's Appeal, 73 Penn. St. 169. And of course equity cannot enforce supposed rights not recognized by municipal law. Elborough v. Ayres, L. R. 10 Eq. 367;

the exercise of jurisdiction over peculiar rights and remedies. Such persons seem to labor under the false notion that Courts of Law can never administer justice with reference to principles of universal or natural justice, but are confined to rigid, severe, and uncompromising rules, which admit of no equitable considerations. Now such a notion is founded in the grossest mistake of our systems of jurisprudence. Courts of Common Law, in a great variety of cases, adopt the most enlarged and liberal principles of decision, and indeed often proceed, as far as the nature of the rights and remedies which they are called to administer will permit, upon the same doctrines as Courts of Equity. This is especially true in regard to cases involving the application of the law of nations and of commercial and maritime

Carlton v. Salem, 103 Mass. 141; Hale v. Cushman, 6 Met. 425; Hendricks v. Toole, 29 Mich. 340.


It is said however that even in courts of general chancery powers, that is, in the English Chancery, the common practice in matters of concurrent jurisdiction is to remit parties to their remedy at law if that is plain and adequate, unless there is some peculiar advantage afforded by equity or some other controlling fact. Wells, J., in Jones v. Newhall, 115 Mass. 244, 252, referring to Clifford Brooke, 13 Ves. 131; Whitmore v. Mackeson, 16 Beav. 126; Hammond v. Messenger, 9 Sim. 327; Hoare v. Bremridge, L. R. 14 Eq. 522; s. c. 8 Ch. 22. It may be conceded that equity will not enjoin proceedings pending at law which for any reason can be more suitably prosecuted there; unless on terms imposed upon and consented to by the plaintiff in equity -such as giving judgment at law which will result in drawing the cause wholly into equity. And this, with the interesting intimation of Lord Selborne just stated (L. R. 8 Ch. at p. 27), is the extent of Hoare v. Bremridge, supra, the most important case upon the subject. To the same effect, that pending proceedings at law will not be enjoined in such cases, see Grand

Chute v. Winegar, 15 Wall. 373; Payson v. Lamson, 134 Mass. 593; Anthony v. Valentine, 130 Mass. 119. That is easy to understand.

On the whole it is to be regretted that the State courts have not always taken the view maintained in the Federal courts, that the words 'plain, adequate, and complete remedy at law' are merely descriptive, in a broad way, of jurisdiction in equity, and not narrowly definitive. The way is still open in some, probably in many, of the States. A statute which merely copies common language cannot be considered ordinarily to have been adopted with the careful verbal consideration and exact definition of a statute newly worked out and studiously framed. It is hardly probable that legislators in adopting the common language of the books had in mind any specific and exact limits, except where, as recently in Massachusetts, attention had been plainly and forcibly directed thereto. It cannot be seriously doubted that the broader jurisdiction is generally desired and desirable. Comp. Chapman v. Chapman, L. R. 9 Eq. 276, 294. Under its improved course of practice it would seem to be the duty of this court to extend its jurisdiction as far as possible,' &c. Stuart, V. C.

law and usages, and even of foreign municipal law. And Mr. Justice Blackstone has correctly said, that where the subject matter is such as requires to be determined secundum æquum et bonum, as generally upon actions on the case, the judgments of the Courts of Law are guided by the most liberal equity.'1

35. Whether it would or would not be best to administer the whole of remedial justice in one court, or in one class of courts, without any separation or distinctions of suits, or of the form or modes of proceeding and granting relief, is a matter upon which different minds in the same country, and certainly in different countries, would probably arrive at opposite conclusions. And whether, if distinctions in rights and remedies and forms of proceeding are admitted in the municipal jurisprudence, it would be best to confide the whole jurisdiction to the same court or courts, is also a matter upon which an equal diversity of judg ment might be found to exist. Lord Bacon, upon more than one occasion, expressed his decided opinion that a separation of the administration of equity from that of the common law was wise and convenient. All nations,' says he, have equity. But some have law and equity mixed in the same court, which is worse; and some have it distinguished in several courts, which is better.'2 And again, among his aphorisms, he says: 'Apud nonnullos receptum est, ut jurisdictio, quæ decernit secundum æquum et bonum, atque illa altera, quæ procedit secundum jus strictum, iisdem curiis deputentur; apud alios autem et diversis. Omnino placet curiarum separatio. Neque enim servabitur distinctio casuum, si fiat commixtio jurisdictionum; sed arbitrium legem tandem trahet.' Lord Hardwicke held the same opinion; * and it is certainly a common opinion in countries governed by the common law. In civil law countries the general if not the universal practice is the other way; 5 whether more for the advancement of public justice, is a matter of doubt with many learned minds.

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36. But whether the one opinion or the other be most correct in theory, it is most probable that the practical system adopted

1 3 Black. Comm. 436. See Eunomus, Dial. 3, § 60.

2 Bac. Jurisd. of the Marches; 4 Bac. Works, 274.

8 Bac. De Aug. Scient. Lib. 8, cap. 3, Aph. 45; 7 Bac. Works, 448.

Parkes, Hist. Chan. App. pp. 504, 505

1 Kaims on Eq. Introd. pp. 27 to 30.

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