by the mortgagee. This has been decided, and I am sorry for it. It is in the face of the spirit of the act of 1705, and of the letter, and spirit both, of the act of 21st March, 1806." (3 Rawle, 160.)

Such is the history of about five lines in an act of assembly, passed with the benevolent object of simplifying the forms of proceeding, making every man his own lawyer and lessening the amount of litigation. It is but a short chapter in the history of the legislation of that and a few succeeding years, which would afford throughout the most conclusive, though melancholy illustrations of the necessity of exercising extreme caution in attempting radical changes in the forms of legal proceedings.

Apart from the intrinsic difficulty of the subject, there are peculiarities in the Pennsylvanian system of jurisprudence, which added considerably to the embarrassment of the commissioners. The absence of a separate court of equity, and of chancery remedies, except where they may have been specifically granted, either by the constitution or by act of assembly, at the same time the amalgamation of equitable principles with the common law in the administration of justice in the ordinary courts, and the constant and powerful struggle both on the part of the bench and the bar to adapt these principles of equity to the common law forms, were so many causes of complexity. "Local peculiarities," in the words of the report, "which cannot be melted down; the constitution of our courts, which has been often changed, and has rarely been adapted to the suitable exercise of all necessary powers; the jurisdiction of justices of the peace to try civil actions; certain legislative reforms already alluded to, enacted with the benevolent view of lessening the amount of litigation, and enabling all persons to act for themselves in the pursuit and application of remedies, but which it is believed have not produced the expected result." Besides all this, the number of the courts and the variety in the different counties in the modes of proceeding, produced necessarily by difference of circumstances between the more or less populous parts, and the apparent improbability of being able to render any general provisions equally convenient and adapted to them all, was another element in the difficulty of the work. That the result of their reflections should be entirely satisfactory to all was not to be expected. It is certainly, however, matter of congratulation, that they appear to have been deeply impressed with the perilous character of the ground upon which they were treading that they tremble in touching the ark of justice, even when their interference seems most loudly demandedand that they act upon the wise and cautious principle that it will be safer to mould the forms and modes of proceedings at present in use, in order to effectuate the intention of the legis

lature, than to adopt a system altogether new and untried, however beautiful it may appear in theory.

This report comprises three bills:

I. "An act relative to the jurisdiction and powers of the courts."

The most important part of this bill is the fourteenth section, which is as follows:

"The supreme court, and the several courts of common pleas, shall have the jurisdiction and powers of a court of chancery so far as relates to,

"1. The perpetuation of testimony:

"2. The obtaining of evidence from places not within the state :

"3. The care of the persons and estates of those who are non compotes mentis:

"4. The control, removal and discharge of trustees, and the appointment of trustees and the settlement of their accounts:

"5. The supervision and control of all corporations, other than those of a municipal character, and unincorporated societies or associations and partnerships:

"6. The care of trust moneys and property, and other moneys and property, made liable to the control of the said courts:

"7. The discovery of facts material to a just determination of issues and other questions, arising or depending in the said courts:

"8. The determination of rights to property or money claimed by two or more persons, and in the hands or possession of a person claiming no right of property therein:

"9. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals :

"10: The affording specific relief, where a recovery in damages would be an inadequate remedy:

"And in such other cases, as the said courts have heretofore possessed such jurisdiction and powers, under the constitution and laws of this commonwealth.

"And in every case in which any court as aforesaid shall exercise any of the powers of a court of chancery, the same shall be exercised according to the practice in equity prescribed or adopted by the supreme court of the United States; unless it be otherwise provided by act of assembly, or the same shall be altered by the supreme court of this commonwealth, by general rules and regulations made and published as is hereinbefore provided."

The want of these powers has been long felt by the courts. They have often been compelled in consequence to confess themselves unable to render complete justice to the suitor. With the powers which this section proposes to give, there will hereafter exist no just ground of complaint.

Lord Bacon has thrown the weight of his decided opinion in favour of the separation of the courts of law and equity. "Apud nonnullos receptum est, ut jurisdictio, quæ decernit secundum æquum et bonum, atque illa altera, quæ procedit secundum jus strictum, iisdem curiis deputentur: apud alios

autem, ut diversis. Omnino placet curiarum separatio. Neque enim servabitur distinctio casuum, si fiat commixtio jurisdictionum: sed arbitrium legem tandem trahet.”—It is supposed that the system would be found to work better in separate courts, because the judge would then always know the precise nature of his powers, whether as a law or equity judge, and would not be subjected to the embarrassment arising from the intermingling (commixtio) of the two jurisdictions in his own person. Lord Bacon appears also to fear that equity would swallow up the law. But in his time the same definite ideas of the character and extent of equity powers were not entertained as now. The question, however, is one upon which eminent jurists have differed. A judge of the supreme court of Pennsylvania has said, speaking of the mixed jurisdiction of the courts: "I do not consider it a defect in our judicial system-nay, if the power of granting injunctions, of sustaining a bill for discovery and of directing specific performance, at the same time imposing proper terms on the other party, were granted to our courts, I would say our system is preferable to that of England, or of those states where the two courts are kept distinct." The commissioners have devoted a few pages to an examination of this question, and have come to the conclusion that it will be safest to retain this mixed jurisdiction, and that the same course ought to be pursued with respect to the residuum of equity powers proposed to be granted, "that is, to give the necessary relief whenever it can be done by the convenient application of some familiar common law remedy, or by the revival of some one that has become obsolete, and whenever full and complete relief cannot be obtained by such process, to resort, without hesitation, to the methods of the chancery courts, and employ them, either as we find them or in a modified shape, as we have done heretofore, in useful and harmonious co-operation with those of the law."

The four first items in the proposed grant of chancery powers are not new, but have been long possessed and exercised by the courts, either directly under the authority of the constitution, or by virtue of various acts of assembly in modes much conformed to the practice of the court of chancery.

The fifth and sixth items have never been possessed, and the absence of them has been deeply felt in Philadelphia, and must be so in every commercial city. That portion of the jurisdiction of the chancellor, which he exercises over corporations, unincorporated bodies and partnerships, is of the most beneficial character. By common law process their mismanagement cannot be reached till the mischief be done, and in most instances irreparably done. Let us take the instance of an ordinary mercantile partnership. The association is formed,

with or without written articles, either indefinitely or for a limited period. One of the partners misbehaves and pursues a course of conduct which threatens to involve the whole firm in ruin. He possesses singly, by virtue of his general authority as partner, the power of binding his associates to any amount. He raises money on their credit, or with their joint property, for his own private purposes. The most under the present system that can be done, is to circulate and publish a dissolution of the firm. But the defaulting partner, as often happens, has possession of the joint effects. They cannot be recovered from his possession at law. He has as good a legal right to the possession as the others. They may sue in account render, or for damages for the breach of the original articles. A suit at law is at best tedious. No security can be had but for his personal appearance to answer the final judgment. In the mean time, he may waste or dispose of the goods, and spend the money or pay his own private debts with it. On the other hand, a court of chancery will interfere in the very first instance, and restrain a partner from accepting or negotiating bills of exchange, or from engaging in other transactions, for or in the name of the partnership, except for partnership purposes. And it will likewise interfere when a breach of any of the covenants contained in the articles of partnership has been committed, if the breach be so important in its consequences as to authorize the party complaining to call for a dissolution of the partnership. If a dissolution be decreed, the course adopted is for the court to appoint a receiver, who immediately takes possession of all the joint effects, collects the outstanding credits, disposes of the property to the best advantage, and brings the whole into court, where, under the control and supervision of the chancellor, it is equitably distributed among creditors and partners, according to their respective rights. The contrast shows too strongly the advantages to result from the discreet exercise of the proposed power to need any comment. It is still more imperatively demanded in the case of corporations and unincorporated societies, which are springing up in numbers around us. The mismanagement of their funds may proceed to an indefinite length, to the utter ruin of hundreds of the worthy and laborious poor, who confide their hard earnings to their care, unless there be a hand strong enough to hold them by a tightened rein. "What is wanting," say the commissioners, "is authority to restrain their proceedings, when the continuance of them would be prejudicial to the interests of the creditors, or of the members; to appoint receivers to take charge of the funds and protect them from misapplication; and to distribute their assets among creditors according to

the rules established in the case of the insolvency of individuals." It is not however meant by the commissioners to give any court that extensive and ill-defined jurisdiction possessed by the lord chancellor of England over the direction of charities, when either corporations or others are entrusted with their administration. As this jurisdiction is and has been long exercised, it is certainly monstrous. On the principle, that where the intention of the charitable donor is illegal or impossible to be carried into effect, it should be accomplished as near as may be, the strangest perversion of funds from their original object has taken place. The sound rule in such cases appears to be, that where the general objects of the testator's bounty are clear, and the mode prescribed of carrying them into effect, plainly appearing to be but subordinate and secondary, should on any account be impossible, there the general object shall still be attained in the mode which comes nearest to his mind as it can be ascertained; but that in other cases, and where it is at all doubtful whether the course intended to be pursued would fall within his general and primary intention, that there the fund should lapse for the benefit of the heirs or residuary legatees. The commissioners have wisely left the subject upon the footing on which it at present stands, without any proposed alteration, giving it however as their opinion, that no court in Pennsylvania possesses the power of interfering à priori, and directing the application of trust funds, although their general control over trustees and trust property already or proposed to be conferred, will come sufficiently near such a power for all beneficial purposes.

As to the seventh item-the discovery of facts, &c., we will let the commissioners speak for themselves.

"It has already been shown, that the power of compelling a discovery from parties, has been given to our courts: 1. In the case of garnishees in foreign attachment: 2. In the case of lost deeds: 3. In the case of stock held in a corporate body, in the name of a third person: 4. In the case of the accounts of assignees: 5. In the case of suits against corporations to discover their property. To which may be added, 6. The power of compelling the production of books and papers, given by the act of 1798: 7. In the Orphans' court, the power of compelling answers in the case of executors, administrators, and guardians. And analogous to this, is the power of requiring answers upon oath by persons applying for the benefit of the insolvent laws.

"It remains to be considered whether this power ought to be enlarged, so as to embrace the whole sphere of litigation; namely, to compel discovery in all cases from parties to a suit, when, by the rules of equity, they may be required to answer. We think that there is no substantial reason in the way of our adoption of this practice.

"The march of justice is often interrupted and sometimes defeated in our courts, for want of this important aid; and although there is alleged to be danger of perjury, we think that the experience of the courts of equity proves that this is very small.

VOL. XIX.-No. 38.

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