gorous proceeding, because there is no remedy at law; and unless a remedy is found somewhere, ruin stares the defendant in the face; a ruin not brought on himself by a want of probity, or of property in his possession exceeding, probably ten times, at a cash valuation, the amount contained in the executions, but a ruin brought down upon him by a necessary measure of the national legislature and government, which unfortunately obstructed the channels through which he had been accustomed to pay his debts, probably with punctuality.

2d. Is it a proceeding against equity and conscience? This is the broad basis of the writ of injunction.

It is admitted by both sides, that no remedy can be had at common law. When we resort to law, it is expected that precedents will have their full weight of authority; and though precedents may militate with that justice which the peculiar circumstances of a particular case may require, yet, for the sake of general and uniform rules, a judge will seldom deviate from an established and settled principle to accommodate the circumstances of one case, however strong the reasons may be to exempt it from the operation of precedent.

In the case of Doe v. Pott, 2 Dougl. 120, Lord Mansfield is reported to have said, "the absurdity of Lord Lincoln's case is "shocking; however, it is now law." This observation of his lordship may be selected as the most strongly illustrative of the authority, given by common law judges, to precedent.

A court of inquiry is not so trammeled. It is governed by uniform rules of evidence, and a respect is evinced in that jurisdiction for precedents, yet they are seldom permitted to stand in the way of the particular circumstances of each case.

A lord chancellor of Great Britain is almost as omnipotent as parliament. Give him but a strong hold on an equitable principle, and he will be sure to substitute the intention of an act of parliament for its letter; he will push aside precedent for abstract honesty. What are the many cases in the equity reports, on the statutes of frauds and perjuries, but indirect repeals of the plain and literal requisites of that all-important statute?

It is only necessary to advert to the nature of law and equity to account for the latitude of power given to the latter.

The law is stubborn and unbending. It marks out for itself a course from which no fascinations can allure, no obstacles impede.

It neither looks to the right nor to the left. It neither relents nor forgives. It issues its mandates, and will be obeyed. It takes into view no consequences.

Fiat justitia is its maxim, whether contemplating its operation upon a nation or upon an individual.

We perceive at once, that such should be the nature and effects of law; they necessarily result from that indiscriminating and eternal justice, upon which the common law is founded.

Our ancestors felt, as we have felt after them, the necessity of some tribunal, armed with the attribute of alleviating the inexorableness of the law. This tribunal is called a court of equity, whose decisions are guided by the particular circumstances of each case.

This court of equity lends mercy to the law, and steps in as a kind of mediator between rigid justice, as established by the artificial institutions of society, and that justice which traces its origin to the laws of nature and of God.

In cases like these before me, the law places every thing at your disposal. It holds out to you the means of rioting upon the spoils of your neighbour, your debtor or the community.

The nation, in order to redress itself for outrages on its sacred rights, imposes distresses on its own citizens. These distresses are the deprivation of those means which heretofore poured wealth or competence into the lap of the planter.

His ostensible wealth is, however, now the same. He shows you his cotton, his rice and his negroes. He proves to you that his property has even greatly accumulated since he engaged to pay you your debt; but to pay that debt now, he tells you he is unable, unless a sale is directed by the sheriff, the consequence of which would be a payment to you of four fold; for a sale of his property now would amount to a diminution of quadruple its intrinsic and just value, and in that ratio less than it would have sold for at market previous to the embargo.

How immense, and at the same time how unrighteous, are the advantages which the creditor derives, if he himself become the purchaser, and pay with his judgment! How much more unrighteous and against conscience is a purchase under these circumstances by a capitalist, who with his ready money speculates upon the misery and the ruin of the unfortunate debtor!

Time has not been allowed me to search for apposite cases in the books. I do not recollect, at this moment, any cases reported in the English authorities involving the principles of the cases before us.

I shall therefore bottom my decision upon the abstract grounds, that cases of this description involve hardship and oppression; that they are against equity and conscience; that they are promotive of injury to the public; that they enable monied men to accumulate usurious wealth; and that they tend to convert a just and salutary measure of the government into an engine of political disaffection, through the medium of distressed and persecuted debtors.

Let the writ of injunction therefore issue, to stay sales upon these executions, until the first day of September next, the complainant depositing with the sheriff, when required, to meet the day of sale, sufficient property, the valuation of which to be ascertained by the price at market three months preceding the embargo act.

THIS

SUPERIOR COURT, April 8th, 1808. Georgia, Chatham county. In Equity, Exparte R. M. Maxwell. HIS case standing upon the same footing as the above, it is ordered that a writ of injunction be granted to stay sales upon executions mentioned in the bill, until the first day of September next; the complainant depositing with the sheriff, when required, to meet the day of sale, sufficient property, the valuation of which to be ascertained by the market price three months preceding the embargo act.

Court of King's Bench.

HILARY TERM 1770.

Perrin v. Blake.

THE note of the present case is particularly valuable, both on account of the importance of the doctrine which is involved in the decision, and the comprehensive view which Mr. Cooke has given of the arguments of the Judges.

The history of the proceedings in this case is given by Douglass, p. 329. in note.

An ejectment was brought in Jamaica, where the estate lay, and a special verdict found, which came over for the opinion of the privy council, upon an appeal in the nature of a writ of error. Lord Mansfield, (the only law lord who then attended the council) knowing the several opinions which had been taken, and considering the question as a point of general tendency, which might affect titles to real property in England, was unwilling that judgment should be given in the cockpit merely on his opinion; and therefore proposed, with the consent and concurrence of the counsel on both sides, that the appeal should be adjourned, and in the mean time, a solemn opinion taken in Westminster-Hall. At first it was agreed to state a case for the opinion of the court of B. R. which might have been adjourned on account of difficulty in the exchequer chamber; but a case from the king in his judicial capacity being new, it was afterwards thought better that the point should be brought before the court upon the pleadings in a feigned action of trespass. Walker, sergeant, settled the record for that purpose, on which, to a declaration in trespass (laid in Middlesex under a videlicet) the defendant pleaded the will. The plaintiff replied the recovery, on the ground that the son took an estate tail, and to this replication the defendant demurred. After a writ of error had been brought in the House of Lords, from the judgment of reversal

It is understood that the master of the rolls cannot send a case to any of the courts of law, and therefore, when he wishes to take their opinion, the practice is to direct a feigned action or issue, so as that the question of Jaw may arise upon the finding of the jury.

in the Exchequer Chamber, and had depended for a considerable time, the parties compromised the dispute, and the plaintiff petitioned for leave to non-pross his writ of error, which was granted, as appeareth from the entry in the Lords' journal, [7th May, 1777] &c.

It may not be amiss to add from the same authority, the observations of Buller, Justice, upon this case.

"But the question, whether the intention be consistent with the rules of law, can never arise till it is settled what the intention was. This can only be discovered by taking the whole will together. If it be apparent, I know of no case that says, a strict legal construction, or a technical sense of any words whatever, shall prevail against it; unless a case which made a great noise in Westminster a few years ago, be considered as such.* I have no difficulty in saying that I do not look upon that case as such, nor if ever a similar case should arise, shall I think myself bound by it, but shall consider the question as if that question never had existed; for the most that can be said of it, is, that as far as it repects any rule of law, there were the opinions of six Judges against six. I am aware, that, as to the decision of the case between the parties there were the opinions of seven against five. But it will be found that the opinion of one of the sevent went upon the idea, that it did not appear, that the testator meant to use the technical words in a different sense from what the law in general imposes upon them." Doug. 327.

THIS

HIS case came before the Court upon an appeal from the judgment of the Supreme Court in the island of Jamaica. It was argued three times in King's Bench, and, after time taken for consideration by the Judges, they severally gave their opinions this term. The following were the circumstances: The testator devised to his daughters, Bonetta, Hannah and

* Perrin v. Blake, B. R. H. 10 Geo. 3. Cam. Scacc. H. 12 Geo. 3. 4 Burr. 2579, 2581. 2 Blackst. 674.

† Lord Mansfield, Aston Justice, and Willes Justice, in B. R. and De Grey Chief Justice, Smythe Baron and Blackstone Justice, against rates Justice, in B. R. and Parker Chief Baron, Adams Baron, Gould Justice, Perrot Baron and Nares Justice.

Blackstone Justice, Vide 4 Burr. 2581 The account there given of the substance of Mr. J. Blackstone's opinion was furnished by himself.