disposing of all the merits of a case, when its forms of proceeding are ill adapted to afford complete relief, and giving jurisdiction over the same case to another court better adapted to do entire justice, by its larger and more expansive authority. * In Scotland, which proceeds according to the method of the civil law, the supreme civil court of the country (the Court of Session), combines in itself all the functions of the English Courts, both of Law and Equity-" abating the rigour of the law, and giving aid when no remedy can be had in a court of law," "this equitable power being called the nobile officium of the court-a term derived from the civil law;" and it is 'governed by well-defined principles, and with all the regard usually had, in Scotland, to precedent." The equity jurisprudence exercised in America, is founded upon, co-extensive with, and in most respects conformable to, that of this country: approaching nearer to it even than their common law courts approach to our's. ‡ In some of the States the administration of law and equity is blended in the same court; but in nearly all those which recognise equity jurisprudence, it is, as in England, administered in courts separate from those of law. §

We shall quit this part of the subject by observing, that lest the student should draw erroneous conclusions from certain expressions in the foregoing pages, in which law is represented as being, when contradistinguished from equity, of a rigid, inflexible character, and very limited in its sphere of action, it is necessary, in addition to what has already been said, to explain, that courts of law are

*Stor. Eq. Jur. ch. I. § 37.

+ Bell's Dict. and Dig. of the Law of Scotland, pp. 361-2.

Stor. Eq. Jur. ch. I. § 58.

§ Id. ib.

also armed with analogous discretionary powers of an extensive and effectual kind. We shall here mention only two. The most potent weapons of a Court of Equity, are its powers of INJUNCTION, and of COMPELLING SPECIFIC PERFORMANCE of contracts and other matters. 1. A writ of injunction (the interdict of the Roman law)* is a judicial process in equity, by which a party is required to do, or refrain from doing, a particular thing: and the object of this writ is generally preventive, and protective, and sometimes restorative. This may be called the right arm of equity-its power is almost unlimited and irresistible; though it was not established (especially when used to stay suits and judgments in the Courts of Law) till the reign of James I., and only after a long and desperate struggle against it by the Common Lawyers.† So complacently acquiescent, however, have Courts of Law now become in the exercise of this once dreaded and detested interference, that they will lend no aid whatever to parties seeking to evade it: though Sir James Mansfield, when Chief Justice of the Common Pleas, in 1809,‡ declared it "desirable to take some step to check the growing practice of seeking for injunctions in that Court against proceding to trial at law." The question in the case alluded to was, whether the Court would take a cause out of its turn, for the purpose of anticipating an apprehended Injunction. The present Lord Campbell (then Mr. Campbell, the author of the Nisi Prius Reports passing under his name) was, rather oddly,

• Halifax, Roman Civil Law, ch. vi. p. 102.

† 3 Wood's Lect., Lect. 56, p. 398. 1 Chanc. Rep. App.; Eden on Injunct. c. 3, p. 135.

Goldschmidt v. Marryatt, 1 Camp. 559, note. In this case the Chief Justice expressed his strong suspicion that the Bill for an Injunction was meant for delay only.'

deputed' (instead of the modern practice being resorted to, of the Judge quitting the court to consult any of his brethren) 'to go as amicus curiæ, to the Court of King's Bench, and inquire what was the practice there.' On his return he certified, "that Lord Mansfield had laid it down as a rule, 'that although he would not wait for any proceedings in equity, he would on no account take a cause out of its course for the purpose of defeating them'; and that the said rule had been observed by his two noble and learned successors, Lord Kenyon and Lord Ellenborough"-the latter of whom was Chief Justice when the learned amicus curia went upon his journey of discovery to the King's Bench. To return, however. Courts of Law exercise powers closely analogous to these of Equity, though to a much more limited extent. Some of them—as to prevent nuisance and waste *—were quite inadequate to meet the cases to which they were applied; and had, long before the statute of 3 & 4 Will. IV. c. 27, s. 36, fallen into disuse, on account of the incomparably superior preventive powers of equity. Still, however, the Courts of Law have an extensive authority, exercised on equitable principles, and of a summary character, to prevent their process and authority from being abused and perverted, so as to occasion hardship and injustice; as was instanced in the recent case of Cocker v. Tempest, 7 M. & W. 502. The Court of Exchequer there exercised "its equitable power" to stay an action brought against good faith. "The distinction," said Alderson, B. "between this power-one to be used with the most careful discretion-and that exercised by the Court of Equity in granting an injunction,

* See the case of Jefferson v. Bishop of Durham, 1 Bos & Pull, pp. 105 et seq.

is that the latter stops proceedings in another Court; the former only in the Court in which the proceedings are." The Courts at Westminster are, in fact, in the daily exercise of a very extensive and salutary discretion; relieving suitors from the oppressive strictness of technical rules, unless they have been negligent and late in applying for such relief, or it would impose hardship on their opponents. The courts can set aside warrants of attorney, and other securities, judgments, and executions, and indeed all sorts of formally regular proccedings, if against good faith. They have complete authority over all persons within their jurisdiction, to enforce good conduct. The legislature has also, from time to time, armed them with summary and equitable jurisdiction in many important cases: as in Arbitrations (statutes 9 & 10 Will. III. c. 15, and 3 & 4 Will. IV. c. 42); Annuity Deeds (53 Geo. III. c. 114); Mortgage Deeds (7 Geo. II. c. 20-ante, p. 299); and Replevin Bonds (11 Geo. II. c. 19, s. 23). There is, indeed, no limit to their power over these important instruments for the statutes direct, "that they may give such relief as seems to them agreeable to justice and reason." In one case, indeed, the Legislature has recently extended to the Common Law Courts a most important section of purely equitable jurisdiction-viz. in questions of INTERPLEADER. Till the

passing of statute 1 Will. IV. c. 58, in 1831, the Common Law was able to deal with cases of this description in such a feeble and imperfect manner, as necessarily led to the rapid growth of this species of equity jurisdiction, exercised by means of a Bill of Interpleader. The statute in question has given a far more expanded reach to the remedy of Interpleader in the Courts of Law, and extended its benefit to numerous cases of bona fide doubt and difficulty,

securing therein at once such a cheap, expeditious, and economical administration of justice, as has greatly added to the business of the Courts of Law. II. The exercise of the power of compelling specific performance, by the Court of Equity, can be distinctly traced back to the year 1468 (i. e. 8 Edw. III.) * The ground of this jurisdiction is, that a Court of Law is unable to grant specific performance, and can relieve the injured party by giving him only compensation in damages; which may very often afford no real redress whatever for the injury complained of. This is the true basis of this branch of Equity jurisdiction,† which, however, does not generally extend to contracts for the sale of stock and goods; for in such cases damages afford a complete remedy to the purchaser. The Court of Queen's Bench wields a weapon quite as potent, called a MANDAMUS; a high prerogative writ which has been said to be "peculiar to that Court, and one of the flowers of it." This writ affords a proper remedy in cases where there is a specific legal right, and no specific legal remedy; and is available where the party has not any other means of compelling, in such cases, specific performance. The only proper ground of it is, the defect of justice.§ The distinction between this writ, and that of Equity commanding specific performance, is, that it is used principally for public purposes-to enforce performance of public rights and duties; but it also operates most powerfully and extensively in affording specific relief, and enforcing many private rights, when withheld by a public officer.

Madd. Chanc. Prac. 287. + Adderley v. Dixon, 1 Sim. & Stu. 607. Awdeley v. Joye, Popham, 176. § Selw. Nisi Pr. 1093, 19th ed. || Chitt, Gen. Pr. 790 (2d ed.).