THE LAW MAGAZINE.

ART. I.-ENGLISH EQUITY IN AMERICA.

Commentaries on Equity Pleadings, &c. By Joseph Story, LL.D. Dane Professor of Law in Harvard University.

WE are told that in some of the towns of North America, the shops of the principal law booksellers are adorned with the bust of the late Lord Eldon. Trifling as the circumstance may appear, it is not without value in our eyes, as it tends to show that the laws of this country have obtained the respect of the great nation which has sprung from her, and that the eminent men who have dispensed justice with ability at Westminster Hall, are considered in distant countries to have conferred benefits on the civilized world.

The book before us contains very striking evidence that the doctrines of the English Courts of Equity are satisfactory in the opinion of American lawyers. The book is written by a man of the first legal eminence in America. Mr. Justice Story has acquired his reputation, not merely as a practical lawyer, but also as the writer of different treatises which may be compared with the ablest works of English or American lawyers. His work upon bailments, though not so refined and classical as the treatise of Sir W. Jones upon the same subject, surpasses it in extent of information, and in the more complete manner in which the different doctrines connected with the subject are investigated. His more recent work upon equity jurisprudence bears the highest character, and will probably occupy our attention at some length in a future number. We may also mention one other work, his Consti

tutional History of the American States, in which he gives a clear and philosophical account of their different rules of go

vernment.

When we found that a lawyer, distinguished by these celebrated publications, had written commentaries upon the pleadings and practice of Courts of Equity in England and America, our curiosity was excited to see how far our English doctrines are in harmony with those of the writer himself, and of the courts of which he is a distinguished ornament. That there should be a difference upon essential principles, we did not expect. But we have certainly been much surprised to find, that all our doctrines, with, we believe, scarcely any exceptions, are approved of and adopted in daily practice in the American Courts of Equity. A half century has elapsed since the two countries were separated. During that period the courts of America have been wholly independent of the courts of England. American advocates have been allowed to argue, and judges to decide, without any other deference to the decisions and principles of the English courts, than that which good sense and pure morality will always retain over enlightened and correct understandings. Yet we find that the sway of our equitable principles is as firmly established in American courts, as if they still owed allegiance to the House of Lords, as to the Supreme Court of Appeal. This result appears to us to be most satisfactory; a result, in which this country may find abundant cause for self-congratulation. We may add, in justice to great men now departed, that such coincidence of opinion, such approbation of lawyers, of men of property, of men engaged in business, in all the intricate relations which arise out of the possession and transfer of property, and compelled by their own interests and labours to observe the consequence to which legal and equitable principles have led, of men, too, who have the power of changing laws which they deem erroneous, as well as that of confirming them when found to be correct, may teach this country how large a tribute is due to the memory of many of her Chancellors, of such lawyers as Lords Nottingham and Macclesfield, who sowed the seeds of our equitable jurisprudence, and Lords Hardwicke and Eldon, who have successively added their exertions in bringing the harvest to maturity. The dynasty of Napo

leon has passed away, but his code, in fulfilment of his prophecy, still asserts for his memory abundant claims upon the gratitude of France and now that England has lost political dominion over her colony, she still maintains with every judgment that issues from her courts a judicial authority over her independent ally.

to one.

The cases quoted by Mr. Justice Story in support of his opinions are English cases, in the proportion of full twenty We search in vain for fresh lights thrown by American judges upon our equitable doctrines. Those judges have followed in our traces with scrupulous care; nor does the work before us mention any departments of the science, in which they have introduced alterations or essential improvements. We confess, that we did not wish to find the homage to English authority carried to so great an extent. It would have given us far greater pleasure to have been informed of some decisions in which more original views had been taken, and in which our commentator had relied with greater confidence upon the decisions of American courts.

The groundwork of the treatise and the plan adopted are explained in the following passages :—

"I have transferred into my own pages all the most valuable materials of Lord Redesdale's treatise, and generally, where I could, in his own language, which I have not the presumption to think I could improve; and from which I have rarely deviated, except to insist upon some qualification, or to make his text occasionally more definite and clear. I have also freely used the materials in Mr. Cooper's and Mr. Beames's excellent treatises on equity pleadings, as auxiliaries to that of Lord Redesdale, to whom each of them is under the same obligations as myself, having drawn many of their materials from the same great source."1

"The design of the present commentaries is to present a general, but at the same time an accurate outline of the proceedings in Courts of equity, from the original institution of a suit, to its close, and to accompany the same with such explanations and illustrations as may serve to develope the principles on which they are founded, and the reasons by which they are sustained. It will not indeed be possible in all cases

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to ascertain those principles and reasons; for they are sometimes lost in remote antiquity, and sometimes they depend upon rules of such a purely artificial character, though arising from the exercise of a sound discretion, as to be incapable of any very satisfactory exposition."

"The subject naturally divides itself in two great heads, the pleadings in framing a suit in equity, and the practice in conducting a suit in equity. By the pleadings we are to understand the written allegations of the respective parties in the suit; that is to say, the written statement of the plaintiff, containing in due legal form the facts of the case on which he grounds his title to relief, or to some equitable interposition or aid from the Court; and the written answer or defence of the defendant to the charges of the plaintiff, either denying them altogether, or admitting them and relying on some other matters as a bar to the suit, or admitting them and insisting upon the want of title in the plaintiff to the relief sought, or to the interposition or aid of the Court; and the written reply thereto by the plaintiff. By the practice in a suit in equity, we are to understand all the various proceedings in the suit, whether by the positive rules or usage of the Court, and whether interlocutory or otherwise which may become necessary or proper for the due conduct thereof from the beginning to the final determination thereof."

The general nature of the work is sketched out in these paragraphs. The proceedings are successively investigated in the order in which they take place in practice; the different kinds of bills and the frame of them, both of those which contain a prayer for relief and of those which do not; the persons who ought to be made parties, and the mode in which their respective rights are to be brought into consideration; the different kinds of defence by demurrer, plea, and answer, the nature of replication and of amendments. All these subjects are discussed with great ability. The rules affecting them are stated with precision and supported by cases of authority, of which the statement is clear and lucid, and brings the point immediately into view. The entire work is one, from which the practical English lawyer may derive great assistance, the greater perhaps, in consequence of that peculiar characteristic

at which we have professed some disappointment, namely, its exclusive reliance upon English authority.

Having given this general description of the work, we now proceed to notice some peculiar subjects, to which, in the course of the perusal of it, our attention has been called. Every effort has been made to fulfil so much of the proposed design as relates to the explanation of those reasons and principles on which the several proceedings of a suit are founded. For this purpose the Forum Romanum has been diligently consulted, a treatise, which contains abundant information in a narrow compass, but since the publication of more elaborate modern writers, has been too frequently neglected by the great majority of students. "The pleadings in equity," says our author, were probably borrowed from the civil law or from the canon law (which is a derivative from the civil law), or from both. The early chancellors were for the most part, if not altogether, ecclesiastics, and many of them bred up in the jurisprudence of the civil and canon law; and it was natural for them in the administration of their judicial functions in the Court of Chancery, to transfer into that Court the modes of proceeding with which they were most familiar. Hence at almost every step we may now trace coincidences between the pleadings and practice in Chancery, and the pleadings and practice in a Roman suit and in an ecclesiastical suit. But as the Court of Chancery attained more extensive jurisdiction, and exercised more diversified powers, new modes of proceeding were from time to time adopted which were better fitted for its own peculiar purposes; and the pleadings and practice in Chancery have now become a distinct and independent system." A few more quotations, partly from the work before us and partly from the Forum Romanum, will bring fully before our readers the analogy between the proceedings under the civil law and those which took place in our Courts of equity. "When the actor and reus," that is, plaintiff and defendant," came before the prætor, then the actor did actionem edere; and anciently this was done by showing the cause of his action to the prætor, who thereupon gave him out his proper action. But afterwards the actor used to have his cause of complaint ready in writing to offer to the prætor, which they

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