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recognizance, properly acknowledged or taken before a competent officer,46 by authority of law, and that it is matter of record." He must also show a breach of it, for otherwise the defendant will not be liable; and a variance between the recognizance described in the writ or declaration will be fatal.

Where a recognizance by two is several and not joint, a joint scire facias is bad.49

3720. Under the plea of payment, the defendant may prove any facts of such payment to the plaintiff himself or to his authorized agent, and the mode of making it may be by the actual payment of the cash, by giving another or higher security, where the parties agree that it shall be taken as payment; by the acceptance of the bill or note of a third person, unless such note may been taken as a collateral security; or by the receipt of goods instead of money. But, in general, matter amounting to a discharge or legal payment of a recognizance cannot be given in evidence under the plea of payment; such matter should be specially pleaded. 2

3721. The trial, when the issue is on the record, is by inspection of the record, and such issue is not referred to a jury; it is for this reason that the plea of nul tiel record must not conclude to the country. Upon the production of the alleged record, the judges inspect it, and upon finding it regular in all respects, give judgment for the plaintiff; if, on the contrary, it does not correspond with the description of it in the scire facias or the declaration, and there is a material variance between them, then, as the plaintiff has not supported the issue on the record by proof, the judgment is given for the defendant.

When there are several pleas, some concluding to the country, and also a plea of nul tiel record, the former must be tried by a jury, and the latter by the court. If it appears that the parties went to trial generally, and a judgment was rendered for the plaintiff, the supreme court will presume that the issues were respectively decided by the proper tribunal.

3722. The judgment on a scire facias on a judgment should be that “the plaintiff have execution of the debt or damages, etc., in the scire facias mentioned.'

A scire facias on a recognizance taken in a criminal proceeding is a civil action, and if the defendant prevails, he is entitled to costs.55

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46 Long v. State, 3 Blackf. Ind. 344; Andress v. State, 3 Blackf. Ind. 108. 47 Bridge v. Ford, 4 Mass. 641; Albee v. Ward, 8 Mass. 79; Green v. Dana, 13 Mass. 493.

48 Dangerfield v. The State, 5 Miss. 658.

49 Parish v. State, 14 Md. 238; Davidson v. State, 20 Tex. 649; but see Gedney v. Commonwealth, 14 Gratt. Va. 318.

50 2 Greenleaf, Ev. & 518.
51 2 Greenleaf, Ev. 22 519–526.
52 Heirs v. The State, 1 Harr. Del. 190.
63 Baxter v. Graham, 5 Watts, Penn. 418.

54 Denegre v. Haun, 13 Iowa, 240; Murray v. Baker, 5 B. Monr. Ky. 172; Tindall v. Carson, 1 Harr. Del. 94. See, as to the form of entering a judgment on the scire facias in Pennsylvania, under the act of 1798, Meason's Estate, 5 Watts, Penn. 464; Bredin v. Agnew, 8 Penn. St. 233; Fries v. Watson, 5 Serg. & R. Penn. 222. Where the original judgment is for A B " for use" of C D, judgment on the scire facias may be for the extent of Č D’s interest. Peterson v. Lothorp, 34 Penn. St. 223. 55 Commonwealth v. Stebbins, 4 Gray, Mass. 25.

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FIFTH BOOK.

OF EQUITY.

CHAPTER I.

THE NATURE AND PRINCIPLES OF EQUITY.

3724. The nature of equity.

3725. General rules in equity. 3726-3737. Maxims in equity.

3723. In the preceding books we have considered the nature of legal rights, and the redress for the injury to those rights; in the present will be examined the nature of equitable rights and equitable remedies. These two systems of rights and remedies, though very different, form but one grand system for the administration of justice. In some countries legal and equitable remedies are administered by the same tribunal, and in some of the American states justice is administered in this manner; while in others the two jurisdictions are kept entirely separate. In all, however, the principles of equity are the same, in whatever way they may be administered. This book will treat, first, of the nature and principles of equity, and, secondly, of the remedies and proceedings in equity.

3724. There is a kind of equity which is founded in natural justice, in honesty and right, and which arises ex æquo et bono; this is called natural equity. It corresponds precisely with the definition of justice or natural law, which is a constant and perpetual will to give to every man what is his. This kind of equity embraces so wide a range that human tribunals have never attempted to enforce it. Every code of laws has left many matters of natural justice or equity wholly unprovided for, from the difficulty of framing general rules to apply to them, from the almost impossibility of enforcing a compliance with its requirements, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, or kindness.

Differing altogether from this, there is another kind, called civil equity. This is deduced from and governed by such civil maxims as are adopted by any particular state or community. This alone will form the subject of this book.

1 Doctor Ayliffe, in his Pandects of the Civil Law, Book 1, title 7, pp. 37, 38, says: “Now, equity is two-fold, viz., natural and civil. I call that by the name of natural equity which depends on, and is supported by, natural reason; and that I call civil equity which is deduced from, and governed by, such civil maxims as are adapted to the state of any commonwealth, whether it be Roman or any other whatsoever. Civil and natural equity do sometimes clash and interfere with each other, and civil equity prevails over the other, as in usucapions, and the like. Some have divided equity into a written and an unwritten equity; but this division I shall not meddle with in this place, having taken notice of it elsewhere. Equity not only corrects a law which savors of iniquity, or when the law in such a particular case commands an act which is founded upon iniquity; but also when it commands a thing which is too difficult and hard to be fulfilled ; as when it commands fasting, and sickness would ensue to the person that thus fasts in compliance with the law; for in each case the law is or may be peccant, by commanding an evil, or a thing immod

Civil equity may be taken in two senses in jurisprudence. It is, in the first place, that rule of right which determines the decisions of a judge, when he has to follow the strict rule to which he is obliged to conform by the requirements of the law; and, secondly, which is its true technical meaning, it is justice exercised not according to the rigor of the law, but softened and moderated so as to attain the views of the legislator; it is to correct the law when it is defective by reason of its universality:

Law is nothing without equity, and equity is everything, even without law. Those who perceive what is just and what is unjust only through the eyes of the law, never see it as well as those who behold it with the eyes of equity. Law may be looked upon in some manner as an assistance for those who have a weak perception of right and wrong, in the same way that optical glasses are useful to those who are shortsighted, or whose visual organs are deficient. Equity, in its true and genuine meaning, is the soul and spirit of the law; positive law is construed and rational law is made by it."

When in certain cases the law is clear, it would be doing iniquity to depart from it under the pretext of tempering and modifying its dispositions by particular principles of greater equity; otherwise, the law, established to give to all men an invariable rule for their conduct, would have nothing certain, and the citizens would in vain attempt to repose under the shadow of its dispositions.

Equity is not an arbitrary opinion of the judge; it is subject to certain and fixed rules ; for, unless it be directed by science, it becomes uncertain and unknown, and in such case the magistrate must tremble while sitting in the temple of justice. His mind will wander in pursuit of a phantom of equity purely imaginary. Frequently, what appears just to one man seems unjust to another,

erately severe. Therefore in both these cases the judge ought to pass by the words of the law, and to follow the intention of the legislator, which is not presumed to be unjust or cruel. Equity has place not only in affirmative, but also in negative precepts. As, for example, there is a general prohibition in the laws of England that it shall not be lawful for any one to enter into another's freehold, without leave of the owner, or without authority of law; yet this exception lies in equity from the said prohibition, according to reason, viz.: if a man drives beasts on the highway, and they happen to get into his neighbor's corn, and he, to bring the said beasts out again, that they do not any hurt, goes into the ground and fetches them out, he may, in this case, justify his entry into the ground by law. Again, notwithstanding the statute of Edward the Third, whereby it is ordained, that no man shall upon pain of imprisonment give any alms unto any sturdy beggar that is well able to labor; yet, if a man meets with a sturdy beggar in very cold weather, and so lightly appareled that if he has not clothes given him he must probably perish with cold, and he gives him clothes to save his life, he shall be excused.”

* Fonblanque, Eq. B. 1, c. 1, s. 3: “Equity, as it stands for the whole of natural justice, is more excellent than any human institution; neither are positive laws, even in matters seemingly indifferent, any further binding than they are agreeable to the law of God and nature. But the precepts of the natural law, when enforced by the laws of man, are so far from losing any thing of their former excellence that they thence receive an additional strength and sanction; yet as the rules of the municipal law are finite, and the subject of it infinite, there will often fall out cases which cannot be determined by them; for there can be no finite rule of an infinite matter perfect. So that there will be a necessity of having recourse to the natural principles, that what was wanting to the finite may be supplied out of that which is infinite. And this is properly what is called equity, in opposition to strict law, and seems to bear something of the same proportion to it in the moral as art does to nature in the material world. For, as the universal laws of matter would, in many instances, prove hurtful to particulars, if art were not to interpose, and direct them aright; so the general precepts of the municipal law would oftentime not be able to attain their end, if equity did not come in aid of them.”

3 1 Woodesson, Lect. 198; Taylor, Civ. Law, 91; Dig. 50, 17, 85 et 90; Code, 3, 1, 8. * 3 Sharswood, Blackst. Comm. 329. VOL. II.-3 H

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and yet both act in good faith ; each sustains the side he has adopted apparently with arms of equal power, which renders it extremely difficult to decide to whom the victory should be awarded. But equity, like truth, is but a unit; it must manifest itself by its own power, and it is never better seen than through the medium of the law. There it is made manifest, and it may be adopted without fear of a mistake, because the law must be considered as the wisdom and foresight of the legislator, and he is presumed to have studied equity and embodied it in his work.

To classify our inquiries we will consider, first, the general rules and maxims in equity ; second, the assistant jurisdiction of courts of equity; third, the concurrent jurisdiction of courts of equity; fourth, the exclusive jurisdiction of such courts.

3725. Before we proceed to inquire in what cases courts of equity exercise jurisdiction, it will be proper to take a short view of the nature of equity and the maxims by which it is governed.

Courts of equity are bound by the laws as much as courts of law; the difference is this: when the law is clear and beyond a doubt, both must obey it and enforce its mandates, but the legislator cannot foresee all cases which may arise; in cases of this kind many that happen may fall, if not within the letter, within the spirit of the law. These cases, thus out of the letter, are often said to be within the equity of the statute, and cases within the letter are frequently out of the equity. Equity in cases of this kind is nothing but a sound interpretation of the law. Both courts of law and courts of equity are, however, bound by the same rules of interpretation.

A court of equity is bound by rules and precedents, from which it will not depart, although the reason of some of them may not be quite clear. It is true, such a court has a discretion, but that discretion is a science, and not an arbitrary act; it is governed by rules of law and equity, which are not to oppose, but each in its turn is subservient to the other, and courts of equity are bound by precedents equally with courts of law.”

Formerly, no doubt, the administration of equity in England was arbitrary, and the boundaries of the jurisdiction of courts of equity were not strongly marked; what Selden said of them was perhaps true: "For law we have a measure, and know what to trust to; equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. 'Tis all one, as if they should make a standard for the measure, the chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot ; another, a short foot; a third, an indifferent foot. It is the same thing with the chancellor's conscience."6

In modern times, however, courts of equity have no more discretionary power to depart from principles than courts of law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge those principles. But the principles are as fixed and certain as the principles on which courts of common law proceed.?

The principal difference between these courts consists in the different modes of administering justice, in the mode of proof, the mode of trial, and the mode of relief. This will more fully appear when we come to treat of the form of the remedies in equity in the latter part of this book.

3726. Maxims are rules or principles of law universally admitted as being just and consonant with reason. They are something like axioms in geome

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6 Rook's Case, 5 Coke, 99, b; 3 Sharswood, Blackst. Comm. 432.
• Selden, Table Talk, Equity; 3 Sharswood, Blackst. Comm. 432, note y.
Bond v. Hopkins, 1 Schoales & L. Ch. Ir. 428.

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try. Many maxims are merely the statement, in short and pithy sentences, of principles which claim the assent of mankind. These existed before the law, for, it has been well observed, nations have been found without laws, none without maxims. Such maxims may be considered as fragments of the natural law which was promulgated at the beginning of the world. Of this kind are omne majus continet in se minus,lo De non apparentibus et non existentibus eadem est ratio, and the like. Other maxims derive their effect from the law, and have been adopted after the experience of ages; most of the examples we shall give in this chapter are of this kind. Sometimes the law arises from the maxim, and the latter assumes the office of the former; hence the necessity of understanding them thoroughly." “After having inspired the law, maxims remain and watch over it and in its midst, somewhat like a lamp in the midst of the sanctuary, enlightening the points where the law applies and showing those where it does not."

3727. The first is that he who will have equity done to him must do equity to the same person.

An illustration of this maxim will be found in the case of a plaintiff who has borrowed money upon usurious interest and comes as complainant in equity, claiming to have the instrument given to secure the debt delivered up upon that ground; the court will require him to return the money be borrowed with lawful interest before a decree can be made in his favor; but should the lender come into equity to compel the performance of the agreement, his bill will be dismissed as being in violation of a statute, and the defendant, who asks nothing, shall not be compelled to return the money. 12

3728. For the same reason, he who has committed iniquity shall not have equity. It would be manifestly unjust to permit a man who has committed iniquity toward the defendant to come into chancery to compel him to do equity to him. Thus, in cases of illegal contracts, where the plaintiff has put his

property in the hands of another for the purpose of defrauding his creditors, and he seeks a remedy in equity to be restored, his claim will be dismissed upon the

a ground that he has done iniquity; for, in pari delicto melior est conditio possidentis is a maxim which applies in equity as well as at law.14

3729. It is a maxim that equality is equity. In the settlement of cases for contribution between co-contractors and sureties, in cases of abatement of lega

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8 1 Sharswood, Blackst. Comm. 68; Coke, Litt. 11, 67. Duval, in Le Droit dans ses Maximes, Ch. 8, p. 65, gives a very animated description of the use of maxims. He says, “La Maxime, partout présente, offre à la fois des points d'appui à la mémoire, des conseils aux législateurs, des secours à la loi, des flambeaux aux jurisconsultes, des argumens au barreau, des motifs aux juges. Elle sert en même temps la science et la pratique, la loi et ses applications. Ex regula, dit Décius, dans son langage hardi, non secùs atque e tripode respondemus. Du haut de la règle, comme d'un trépied sacré, nous rendons des oracles de droit et d'équité. La loi ne règle que quelques points; la maxime règne dans tout le droit. Regula est deciduum totius juris. The maxim, everywhere present, offers at the same time points of support to the memory, counsel to legislators, aids to the law, light to lawyers, arguments at the bar, motives to the judges. It serves at the same time science and practice, the law and its applications. Ex regula, says Decius in his bold language, non secùs atque é tripode respondemus. From the height of the rule, as from a sacred tripod, we dispense the oracles of law and equity. The law regulates only some points; maxims reign over all the law. Regula est deciduum totius juris.

Duval, Le Droit dans ses Maximes, 9. 10 Dig. 50, 17, 110.

Dig. 50, 17, 1. 12 See Francis, Max., Max. 1; Bouser v. Colby, 1 Hare, Ch. 143; Hanson v. Keating, 4 id. 4; Secrest v. McKenna, 1 Strobh. Eq. So. C. 356.

13 Francis, Max., Max. 2; Mason v. Gardiner, 4 Brown, Ch. 437; Sturgis v. Champneys, 5 Mylne & C. Ch. 97, et seq.

14 Armstrong v. Toler, 11 Wheat. 258; Hannay v. Eve, 3 Cranch, 244; Broom, Max. 325; Holman v. Johnson, Cowp. 341. 15 Francis, Max., Max. 3.

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