III. 4.

Separation of Courts of Law and Equity.

EQUITY, as distinguished from law, arises from the inability of human foresight to establish any rule,

and, we are sorry to add, in our own, are chiefly owing to the want of ascertaining and observing this boundary. As far as the Reminiscent can learn, the French courts of justice have shown greater moderation than our own, in the exercise of this important duty of judicature. 1. The introduction of the practice of barring entails by common recoveries and fines, which the judges interpreted to be real, though they knew them to be fictitious processes: 2. The preservation, already noticed,— of uses under the appellation of trusts, in the teeth of a solemn act of the legislature: 3. The various modes by which verbal agreements are supported against the statute of frauds: 4. And the doctrine, that notice of a deed shall supply the want of its registration, though otherwise essential to its validity,-are but a small proportion of the instances, in which the decisions of our courts have had something very like legislative enactment.

In the instance last cited, the courts of law of England and France are directly at variance: this circumstance appears to the Reminiscent to deserve particular mention.

Several points of the laws of France, respecting substitutions,-(or entails),-being unsettled, and the laws respecting them being different in different parts of the kingdom, they were all reduced into one law, by the celebrated ordonnance of August 1747. That ordonnance was framed by the chancellor d'Aguesseau, after taking the sentiments of every parliament in the kingdom, upon forty-five different questions. The thirtyninth question is, "whether a creditor or purchaser,-having "notice of the substitution,"(that is, of the entail)," before "his contract or purchase, is to be admitted to plead the want "of its registration ?" All the parliaments, except the parliament of Flanders, agreed that he was; that, to admit the

which, however salutary in general, is not, in some particular cases, evidently unjust and oppressive,

contrary doctrine, would make it always open to argument, whether the party had notice of the substitution; that this would lead to endless uncertainty, confusion, and perjury; and that it was much better that the rights of subjects should depend upon certain and fixed principles of law, than upon rules and constructions of equity, which must be arbitrary and consequently uncertain. The ordonnance of August 1747 was framed accordingly. Those, who have commented upon that ordonnance, lay it down as a fixed and undeniable principle, that nothing, not even the most actual and direct notice supplies the want of registration; so that, if a person be a witness, or even a party to the deed of substitution or entail, still, if it be not registered, he may safely purchase, or lend money upon a mortgage of the property substituted*. Thus the legislature

* See "Questions concernantes les Substitutions, Toulouse, 1770;" and "Commentaire de l'Ordonnance de Louis XV, "par M. Furgole, à Paris, 1767." It is remarkable that the same principle has been received into the Code Civil de Napo léon. See articles 1060 and 1072.

Perhaps interpretative legislation was never carried so far as in the decisions upon the Annuity Act of 1777: it was construed by Lord Kenyon with severity, by his successors with laxity, almost entirely abrogated by a new act:-and this new act lately became the subject of a new legislative

enactment.

One of the faults both of legislation and judicature, is, that when they condemn a practice, but dare not proscribe it altogether, they increase its difficulty and expense. It often happens, that this has no other effect, than increasing the grievances of those who are intended to be relieved. The act of 1777, did not prevent the grant of a single annuity, but, by making the security more hazardous, lessened, at least by one year's purchase, the sum, which the grantor of the annuity received for the grant.

and operates beyond or in opposition to its intent. A question has been frequently made, whether the judicial administration of law and equity ought to be committed to the same, or to different courts. "In "some states," says lord Bacon*, "that jurisdiction, "which decrees according to equity and moral right, "and that, which decrees according to strict right, "is committed to the same court; in others, they "are committed to different courts. We entirely

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opine for the separation of the courts: for the dis"tinction of the cases will not long be attended to, if "the jurisdictions meet in the same person; and the "will of the judge will then master the law."

The grand reason for the interference of a court of equity is, that the imperfection of legal remedy, in consequence of the universality of legislative provisions, may be redressed. Hence, for a length of time after the introduction of equitable judicature into this country, it was thought necessary that, before equity should interfere, this imperfection should be manifested by the party's previously proceeding at law, so far as to show, from its result, the want or inadequacy of legal redress, and his claim

of France having made the registration of a deed necessary, in some instances, to its validity, its courts of justice refused to except from the general provision, those cases, where a subsequent purchaser or mortgagee of the property has notice of the deed and is not therefore injured by its want of registration. A contrary system has been adopted by the courts of equity of this country: many and great inconveniences have followed, and we believe that its adoption is now generally lamented.

* De Aug. Scient. s. viii. c. 3. aph. 45.

for equitable relief. This inflicted upon him two judicial suits, and consequently a double expense. To remedy this grievance, it became the practice, particularly from the time in which the seals were entrusted to Lord Cowper, to dispense with the previous legal suit, when the want or inadequacy of the legal remedy to be obtained by it, was evident.

Still, in many cases, this separation of the courts makes a double suit necessary. When the facts of a case, as they appear in a suit in equity, are so doubtful that the chancellor will not undertake to pronounce upon them, he always sends them for a trial at law. In the same manner, when the construction of a limitation of an equitable estate is very doubtful, he frequently sends it to the judges of a legal court, to receive their interpretation; but ultimately he exercises his own judgment on its merits. Add to this, that, in many cases, the controversy as to some part of the property is legal, and as to the other, equitable, and then the courts and the evidence admitted by them being different, distinct pleading and distinct evidence must be produced for each suit.

In every event, the separation of the courts inflicts on every suitor the necessity of determining a preliminary point, always of great importance, and sometimes of extreme difficulty,-whether his case is to be governed by the rules of law, or the rules of equity. But the difficulty does not rest here, as the complainant is often ignorant whether he is to be resisted by a legal or an equitable defence, and must therefore be ignorant to which judicature it is advisable for him to resort. As far as the

researches of the Reminiscent on this subject have extended, they have led him to believe that the separation of the courts is peculiar to England*.

He begs leave to take this opportunity of mentioning an observation, which has occurred to him in the perusal of the decisions of foreign courts of justice, and the works of foreign jurists.-Whoever reads either our books of reports, or our legal publications, must observe the countless citations in them of adjudged cases, and the great paucity of references to legal publications. On the other hand, adjudged cases are very seldom cited in foreign books of reports, or in foreign legal publications. This is a curious circumstance: the Reminiscent has frequently remarked it to foreign lawyers of the greatest eminence, but never heard it satisfactorily accounted for.

III. 5.

Redactions and Reforms of the French Customary and Statute Law-The Code Napoléon.

THE reader will not, perhaps, be displeased with a further notice of the Code Napoléon; but we must first mention a noble undertaking which had been

*Sir William Blackstone mentions, in his Commentaries, that "under the ancient provisions of the second statute of "Westminster, the courts of law were furnished with powers, "which might have effectually answered all the purposes of

a court of equity, except that of obtaining a discovery by the party's oath." Does not this suggest reflections, which, if ably and maturely weighed, might lead to legislative provisions, by which the jurisprudence of this country might be immensely ameliorated?