The Court of Queen's Bench, and in some cases the Courts of Common Pleas and Exchequer, have a very extensive jurisdiction by PROHIBITION, to restrain all other Courts, from-it has been said—the very highest * to the lowest, from proceeding in a matter over which they have either no jurisdiction, or, having jurisdiction, have attempted to proceed according to rules differing from those which ought to be observed; and also where an inferior Court's proper exercise of its jurisdiction would lead to the defeat of a legal right. The exercise of this power was long desperately resisted, but ineffectually, by the Ecclesiastical Courts. See 3 Bla. Com. 113. Either the Court of Exchequer or Queen's Bench (Exp. Smyth, 2 C. M. & R. 748; Exp. Smyth, 3 Ad. & Ell. 719; Chesterton v. Farlar, 7 A. & E. 713,) may issue a Prohibition even to the Judicial Committee of the Privy Council, if they act contrary to the general law of the land, or exceed their jurisdiction. N. B.-All these three cases were Appeals from the Ecclesiastical Courts to the Judicial Committee of the Privy Council. Whether or not a Prohibition could be issued against the Lord Chancellor, if he should inadvertently exceed his jurisdiction, seems a difficult and unsettled question. See Davy's Case, 1 Lord Raym. 531, per Holt, C. J. The attempt was made in the year 1819; but the circumstances of the case rendered it unnecessary to decide the main question. "We wish

not to be understood," said Lord Tenterden, "as giving any sanction to the supposed authority of this Court to direct a Prohibition to the Lord Chancellor, sitting in Bankruptcy we do not decide against the existence of

* See Tibbets v. George, 5 Ad. & Ell. 107; Noy v. Reynolds, 1 Ad. & Ell. 162.

such authority, because we have not heard the question fully argued. If the question ever arise, the Court whose assistance may be invoked to correct an excess of jurisdiction in another, will take care not to exceed its own." Exp. Cowan, 3 B. & Alderson, 130. To proceed, however. This is a power very closely resembling that of Injunction by a Court of Equity; for it may also be extended, in the discretion of the Court, to other cases than those above mentioned, namely, to prevent the committing of a public irremediable injury. It has been well suggested, that as prevention is better than punishment, the exercise of this high prerogative jurisdiction can hardly be too much extended: and that if a single judge of a Court of Equity, may issue an injunction of the most formidable character, in cases of the greatest magnitude, there seems no reason why four Judges in a Court of Law should not exercise such a salutary jurisdiction-one which is unquestionably vested in them.* The power of Courts of Equity by Bill of Injunction and of Specific Performance, might, by the just application, at law, of the inherent energies of Mandamus and Prohibition, secure a far more speedy, complete and comprehensive administration of justice by the Common Law Courts, than they have hitherto attempted.†

Having thus endeavoured to point out some analogies between the power exercised by Courts of Law, and of Equity, with reference to their compelling parties to do that which they ought to do, or abstain from doing what they ought not, we will proceed briefly to indicate two

* 2 Chitt. Gen. Pr. 359.

†The student will see an interesting application of the Writ of Prohibition (the proceedings in which, and in Mandamus, have been recently (1831) much improved by stat. 1 & 2 Will. IV. c. 21) in the late case of Hallack v. The University of Cambridge, 1 Q. B. 593.

other points of resemblance in respect of object, and the machinery for effecting it.

We distinguish our remedies for wrongs, or for the enforcement of rights, into two classes-those administered in Courts of Law, and those in Courts of Equity: the rights secured by the former are termed legal rights; those secured by the latter, equitable rights. Now the Courts of Law proceed, generally, by certain prescribed forms, and give a general judgment for or against the defendant: entertaining jurisdiction, generally speaking, only in certain 'actions,' and giving remedies according to the exigencies of such actions. There are, however, very many cases in which a simple judgment for either party-"that he do recover [quod recuperet] his debt, or damages, or costs "without qualifications and conditions, and particular arrangements, will not do entire justice, ex æquo et bono, to either party. Some modifications of the rights of both parties, or either party, may be essentially requisite: some restraints on one side or the other: and certain peculiar adjustments, either present or future, either temporary or perpetual. Now, generally speaking, Courts of Law have no methods of proceeding to accomplish such objects: their forms of action and of judgments are not adapted to them; the proper remedy cannot be found, or, at all events, administered to the full extent of the relative rights of the parties. Hence is manifest the vast advantage derivable from the existence of a co-ordinate jurisdiction to supply the deficiencies of the law, and contemplate and provide for cases out of its reach; a jurisdiction of-so to speak— such an elastic and expansive character as scarce any conceivable cunning, fraud, or difficulty can evade or resist.-In one word, Equity stands ready with its power

ful assistance in all cases where a plain, adequate, and complete remedy cannot be afforded by the Law. But lest the student should form an exaggerated notion of the extent to which the law stands in need of such assistance and interference, we will mention the case of FRAUD, and of an ACTION FOR MONEY HAD AND RECEIVED. (I). Many persons suppose that the Law is incompetent to deal effectually with case of fraud: but that is a very gross mistake. Law and Equity have here a concurrent jurisdiction, and there is scarcely a single kind of fraud, however intricate and tangled its tissue, which cannot be completely unravelled in a Court of Law. Fraud, deceit, and imposture will not only afford a legal defence against all sorts of actions and proceedings at law; but will afford a right of action to recover substantial damages by means of an Action on the Case against the perpetrators of it. The Courts also are continually dealing with cases of fraud, when connected with or arising out of legal proceedings, in a summary manner, and on affidavits.-(II). The action for MONEY HAD AND RECEIVED is perhaps the most frequent in use of any of the forms of action, and extends to the recovery of money under an endless variety of circumstances. Its structure is exceedingly simple-extending to some half dozen lines only. The plaintiff alleges that the defendant "is indebted to him in so much for money had and received by the defendant to the use of the plaintiff; and thereupon promised the plaintiff to pay it to him." This the defendant simply denies:* and with

The technical form of Plea "Non Assumpsit" [i. e. "That the defendant did not promise in manner and form as alleged by the plaintiff] puts in issue, "not only the receipt, by the defendant, of the money claimed by the plaintiff, but also the existence of all those facts which make his receipt of it a receipt to the use of the plaintiff." This is one of the late new Pleading Rules: Reg. Gen. Hil. T. 4 Wil. IV.

this slender machinery may be recovered any sum of money, however large, which, ex æquo et bono, the defendant ought to refund; and Lord Mansfield thus, in Moses v. Macfarlane, 2 Burr. 1012,* enumerated some of the cases to which it was applicable. "This kind of equitable action to recover back money which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which ex æquo et bono, the defendant ought to refund. It does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honour and honesty, although it could not have been recovered from him by any course of law; as, for instance, in payment of a debt barred by the Statute of Limitations; or contracted during his infancy; or to the extent of principal and legal interest upon an usurious contract; or for money fairly lost at play because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under

* See a qualification of one of the broad propositions of Lord Mansfield by Lord Alvanley, C. J., in Johnson v. Johnson, 3 Bos. & Pull. 169.

+ See Tibbets v. George, 5 Ad, & Ell. 107; Noy v. Reynolds, 1 Ad, & Ell. 162.

The student will observe, that the lender of money on usurious terms cannot, by any action at law, recover back even the principal money advanced (See Hargreaves v. Hutchinson, 2 Ad. & Ell. 12); nor prove for it against. the estate of the bankrupt borrower. Exp. Scrivener, Ves. & B. 14; Benfield v. Solomons, 9 Ves. jun. 84; Exp. Campbell, 2 Rose, 51. If, however, the borrower apply for relief to a Court of Equity, it will first require him to pay the lender what is bonâ fide due to him. See post, p. 324.

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