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the time specified in the contract. Thus, though the legal estate remains in the vendor till the conveyance is completely executed, the vendor is in equity considered as having been trustee for the vendee from the time specified in the contract; and the vendee, on the other hand, as a trustee for the vendor from the same period, so far as the purchase-money is concerned. With respect to the specific performance of an agreement it is to be remarked, that no decree or order for it, can be obtained from a court of law, though damages for the breach of it will be awarded there (y).

3rdly. With respect to an injunction;-this may be obtained from a court of equity, in a variety of cases, to restrain the adverse party in the suit from committing any acts in violation of the plaintiff's rights (z): as, particularly, to restrain him from infringing a patent or copyright; or from committing waste or nuisance. It may also be obtained to restrain a party from proceeding with an action, or from enforcing a judgment he has recovered (a); and in some instances of an urgent nature,

(y) A court of law, however, may now, in certain cases, and as incidental to an action, grant a mandamus to compel the defendant to perform a duty in which the plaintiff is interested, vide sup. p. 9.

(2) By 5 Vict. c. 5, ss. 4, 5, the Court of Chancery may, on motion or petition in a summary way, without bill filed, restrain the Bank of England or other public company from permitting a transfer of stock or shares, or from paying any dividend. And by The Consol. Gen. Ord. (Feb. 1860) xxvii., the mode of proceeding by writ of distringas on stock under that statute, is regulated.

(a) The practice with respect to injunctions to stay proceedings at law, (formerly called common in

junctions,) differed at one period, in some respects, from the practice with respect to injunctions to prevent waste or the like, (then called special injunctions). But by 15 & 16 Vict. c. 86, s. 58, it is now provided, that the practice as to the former, shall for the future be assimilated to the practice as to the latter, so far as the nature of the case will permit. As to the present practice on injunctions, see Consol. Gen. Ord. (1860) xxv. It may be here observed, that by 21 & 22 Vict. c. 27, the Court of Chancery is, for the first time, enabled to award damages to the party injured, in addition to, or in substitution for, an injunction.

(if the case be supported by a proper affidavit,) may be obtained immediately upon the institution of the suit, and without any previous notice to the opposite party (c). In the course of an action, an injunction may now also be granted, as the reader will recollect, by a court of law; but it is by the effect of a very recent alteration of our system (d).

4thly. As to the perpetuation of testimony. The examination of witnesses never takes place at common law, except in reference to matters in respect of which some action or legal proceeding has been already commenced. But it is sometimes very material for the protection of existing rights, that the evidence relating to them should be taken and preserved, though they may not yet be the subject of any suit,-the position of the parties interested being such as not yet to afford any occasion or opportunity for litigation; for there may be reason, nevertheless, to expect a future legal contest of the right, and that at a period when the witnesses, now competent to give material evidence upon it, may have been removed by death. In such cases, therefore, a court of equity lends its aid by permitting any of the parties interested, to institute proceedings against the rest, with a view to the mere perpetuation of the testimony, and without reference to any other present relief. And this is effected by taking down, as in an ordinary cause, the examinations or depositions of the witnesses,— which in the event of the right being tried at any future period, when the attendance of the witnesses can no longer be procured, may be received in evidence between the

(c) 1 Mad. Chan. 126. By 15 & 16 Vict. c. 76, s. 226, it is provided, that in case any action, suit, or proceeding, shall be commenced or prosecuted in disobedience to any injunction, the court in which it is so commenced or prosecuted, shall, on production of the writ of injunction, stay all further proceedings in such

court; and this without prejudice to the liability of the person, so violating the injunction, to punishment for the contempt.

(d) 17 & 18 Vict. c. 125, ss. 7982; sup. vol. 111. p. 484. And see also 15 & 16 Vict. c. 83, s. 42, in reference to infringement of a patent (sup. vol. 11. p. 32).

same parties or those claiming under them (e). And with a view to extend the application of so convenient and important a remedy, it is now lately enacted by the 5 & 6 Vict. c. 69, that any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity or office; or to any estate or interest in any property real or personal; the right or claim to which cannot by him be brought to trial before the happening of such event,-shall be entitled to file a bill in the High Court of Chancery, to perpetuate any testimony which may be material for establishing such claim or right (ƒ).

These are the principal, (for we must pass by the minuter points,) of the jurisdiction at present exercised in our courts of equity: [which differs, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived at maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page (g); and which were received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions by which in the course of a century, this mighty river had imperceptibly shifted its channel. Lambard, in particular, in the reign of Queen Elizabeth, lays it down (h), that "equity should not be appealed unto but only in rare and "extraordinary matters; and that a good chancellor will

(e) This is most frequent when lands are devised by will, away from the heir at law: and the devisee institutes a suit to perpetuate the testimony of the witnesses to the will. This is what is usually meant by proving a will in Chancery. (3 Bl. Com. 450.)

(f) As to the practice in such suits, see Consol. Gen. Ord. 1860, ix.

rr. 6, 7; xix. Gen. Ord. 5th Feb.
1861, r. 16. It will be remembered
that a jurisdiction of a somewhat
similar, though more limited, kind
has been recently conferred on the
New Divorce Court in reference to
the questions of legitimacy and
nationality. Vide sup. vol. 11. p. 254.
(g) Vide sup. p. 27.
(h) Archeion, 80, 81.

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["not arrogate authority in every complaint that shall be "brought before him, upon whatsoever suggestion: and thereby both overthrow the authority of the courts of common law, and bring upon men such a confusion and uncertainty, as hardly any man should know how or "how long to hold his own assured to him." And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers

would have become too arbitrary, to have been endured in a country like this; which boasts of being governed in all respects by law, and not by will. But since the time when Lambard wrote, a set of great and eminent lawyers who have successively held the Great Seal, have by degrees erected the system of relief administered by a court of equity into a regular science; which cannot be attained without study and experience, any more than the science of law: but from which, when understood, it may be known. what remedy a suitor is entitled to expect, and by what mode or suit, as readily and with as much precision, in a court of equity, as in a court of law.

It would carry us beyond the bounds of our present purpose to go further into this matter. It seemed desirable to go so far; because strangers are apt to be confounded by nominal distinctions, and the loose unguarded expressions to be met with in the best of our writers; and thence to form erroneous ideas of the separate jurisdictions now existing in England, but which never were separated in any other country in the universe.

It hath also afforded us an opportunity to vindicate, on the one hand, the justice of our courts of law from being that harsh and illiberal rule, which many are too ready to suppose it; and, on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or

[an exercise of dictatorial power, which rides over the law of the land, and corrects, amends and controls it by the loose and fluctuating dictates of the conscience of a single judge.

III. It is now high time to proceed to the practice of our courts of equity thus explained and thus understood;] and in our remarks on this subject,―omitting all inferior jurisdictions, we shall confine ourselves to the superior court, viz. the High Court of Chancery, held before the Lord Chancellor; with its branches, of which the Master of the Rolls and the Vice-chancellors are respectively the judges (i).

According to the present system of practice-comprising great improvements recently introduced by the provisions of various acts of parliament, and the General Orders of the court founded thereon (k),-[the first commencement of a suit in chancery,] which is analogous to an action in the common law courts, [is by preferring a bill (1) to the Lord Chancellor in the style of a petition: "humbly complaining, showeth unto his lordship A. B. &c., the above-named plaintiff, as follows:-&c." (m). This bill is in the nature

(i) As to the High Court of Chancery, vide sup. vol. 111. pp. 414 et seq.

As

(k) See the statutes cited, sup. vol. 111. p. 425, n. (z), et sup. p. 41. See also vol. 1. pp. 258, 263, 272, 285, 484, 640, n., as to the jurisdiction recently conferred on this court in dealing with settled estates. to the General Orders in Chancery (which were formerly extremely numerous), these have been recently consolidated into a single set, abrogating (with certain exceptions) as from the 14th Feb. 1860, all theretofore made. Since the promulgation of these Consolidated Orders additional ones have been issued, bearing date 6th March, 1860; 20th VOL. IV.

March, 1860; 1st Feb. 1861; 5th Feb. 1861; 13th July, 1861; 16th August, 1861; 1st January, 1862; 16th May, 1862. There are, besides, sets of regulations of 8th August, 1857, as to business in chambers, and of 15th March, 1860, as to business in the Registrar's offices.

(7) It may be here observed that by 15 & 16 Vict. c. 86, parties seeking equitable relief were, in some cases, allowed to file a claim instead of a bill. But this mode of proceeding is now abolished. (See Consol. Gen. Ord. vii.i, r. 4.)

(m) See the form of a bill referred to in Consol. Gen. Ord. ix., r. 2, contained in sched. A. annexed to the Orders. As to the proper par

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