his real estate-to deprive them of their priority? if it be wrong, why should a partial remedy for the wrong be left dependent upon the will of the debtor? Before, however, closing these remarks, we must add, that a great authority upon English Law, Lord St. Leonards, appears to be in favour of the present distinction between specialty and simple contract debts; for when his Lordship, in an elaborate speech in the House of Lords, proposed to give the Commissioners of Bankruptcy jurisdiction to administer the property of a man, being a trader at the time of his death, whose debts remained unpaid for a certain time after that period, he observed, "One difficulty is, that under the administration of bankruptcy specialty debts are cut down to an equality with simple contract debts. This is not objectionable in the administration of bankruptcy when the trader is alive, but of course it cannot be allowed after his death. It will, therefore, be necessary, my Lords, to take care to reserve to the specialty creditor the rights which he would now have in the Court of Chancery after the death of his debtor." -(Hans. Parl. Deb., vol. cxxiii. 3rd ser. col. 189.) 21. KING V. MULLINS. 1 Drew. 308. In this case a question was discussed upon which, although it frequently arises in practice, there are few authorities, viz. when a trustee can demand a release under seal. It appeared a trust had been created by parol for A for life, remainder to B for life, and to pay the expenses of her funeral, with remainder to her two children. A died, and then B. Kindersley, V. C., held that the trustee was entitled to a release under seal from the children of B. on paying the trust fund to them: "On the question," said his Honour, "whether it is the strict right of a trustee to demand a formal release, I am of opinion, that in the case of a declared trust, where the trust is apparent on the face of a deed, the fund clear, the trust clearly defined, and the trustee is paying either the income or the capital of the fund, if he is paying it in strict accordance with the trusts he has no right to require a release under seal. It is true that in the common case of executors, when the executorship is being wound up, it is the practice to give executors a release. An executor has a right to be clearly discharged, and not to be left in a position in which he may be exposed to further litigation; therefore he fairly says, unless you give me a discharge on the face of it, protecting me, I cannot release; but such a claim on the part of a trustee would in strictness be improper if he is paying in accordance with the letter of the trust. In such a case he would have no right to a release. That, however, is not this case; here there is no deed at all, no writing declaring the trust; there is a small sum of money in the hands of the plaintiff, with nothing but a verbal expression of the trusts. The evidence showing what the trusts were, indicates that upon the very tenor of those trusts they could not be completely carried out until the death of the tenant for life. Considering that in the first place there was no writing to indicate either what the trusts were or the amount of the trust fund, and in the second place, that what the trustee has been asked to do is not in accordance with the tenor of the trusts, I am of opinion that in this case it was not illegal in the trustee to demand a release by deed." 22. LEWIS V. HILLMAN. 3 House of Lords Cases, 607. 629. Solicitor Purchase, by when employed to sell. The Lord Chancellor (St. Leonards) made the following important remarks as to purchases by a solicitor employed to sell, or by persons standing in some other fiduciary relation towards the vendor: "No man in a Court of Equity is allowed himself to buy and sell the same property. He cannot sell to himself. Even in the case of a fair trustee he cannot sell to himself. If he has the power or the trust to sell he must have some one to deal with. Courts of Equity do not allow a man to assume the double character of seller and purchaser; and it is necessary, in order to preserve the interests of persons entitled beneficially to property, to maintain that rule. But here is a case which goes infinitely beyond that. I should lay it down as a rule that ought never to be departed from, that if an attorney or agent can show he is. entitled to purchase, yet, if instead of openly purchasing he purchases in the name of a trustee or agent, without disclosing the fact, no such purchase as that can stand for a single moment. Such a transaction to stand must be open, and free from all objection. And if a man purchases as these appellants purchased, by putting a clerk of his own, not as a clerk, not as an agent, but as an actual bond fide purchaser upon an absolute and independent contract, he does that which, the moment it is stated, renders the deed powerless for the purpose for which it was framed and executed; and the Court will hold the parties responsible for every thing which results from it. If, therefore, a Bill had been filed, and this contract had been attempted to be set up, I cannot hesitate to say that such contract ought to have been rescinded, and the whole costs of the proceeding thrown upon the parties who had entered into it." 23. HUGHES V. MORRIS. 2 De Gex, Mac. & Gord. 349. Ship Registry Act, 8 & 9 Vict. c. 89. s. 34.— Executory Contract - Specific Performance- Action. In this case a question important to those connected with the shipping interest arose, and turned upon the construction of the 34th section of 8 & 9 Vict. c. 89. Certain shares in a British registered ship had been put up to auction, and there sold to a British subject; a deposit was paid on the purchase-money, and an agreement entered into, by which the vendor on payment of the remainder of the purchase-money was to execute to the purchaser a transfer or bill of sale of the shares according to the conditions. It was contended, that as the words "contracts and agreements," which had been inserted in 34 Geo. III. c. 6. s. 14. to supply an omission in 26 Geo. III. c. 60. (Lord Liverpool's Act), had been omitted from the subsequent Ship Registry Acts, viz. 6 Geo. IV. c. 105., 6 Geo. IV. c. 10., 3 & 4 Will. IV. c. 55., and 8 & 9 Vict. c. 89., it was not intended by the Legislature that mere executory contracts, as distinguished from an instrument affecting to make an actual transfer of a ship, should come within those Acts. It was held, however, by the Lords Justices, that a contract for the sale of shares in a British ship could not be enforced in Equity. Lord Cranworth, however, in giving judgment, said, that "it might be that now an action at law might be maintained upon a contract for a sale of a ship, which would have been void before under the laws as they were before they were consolidated in the reign of George IV." See M'Calmont v Rankin, 2 De Gex, M. & G. 403., and the observations of the Lord Chancellor (St. Leonards) on Lord Cranworth's remarks as to an action lying for a breach of a contract to purchase a ship, ib. p. 419. NOTE A. TO ART. I. (Referred to p. 232.) "Let us consider, briefly, these two propositions : "Why were they adopted? Their origin is of remote antiquity, and involved in obscurity and uncertainty. It is clear, they have been from the beginning, a secret and a mystery, and it is intimated by good authority, that they were contrived to give the entire administration of justice to the Patrician order of Rome, to the exclusion of the great body of the people. 1 Kent's Com. 528. Stephen on Pleading-App. note 2. (3 Black. 116.) 1 Spencè Ex. Jurisdiction 206, 207. 285, 286. 66 Again, it is said the actions at Law were derived from the original writs, which were formerly essential in every case, to the due institution of a suit. If no writ had been contrived for a given case, there was no right of action for that case, and the injured party was without judicial remedy. The enumeration of writs and actions thus became identical. "Stephen, in referring to the origin of the writs, says: 'Though we know, that some of the brevia are at least as ancient as the time of Henry II., (being found in the work of Glanville, who wrote in that king's reign,) the student will in vain search the books of the science for any distinct and satisfactory account of their original invention.' 66 By another it is said, they received their peculiar forms, at that period, when a scholastic pedantry had overrun and perplexed with its arbitrary rules, every branch of science. "With no clearer history than the foregoing, it is difficult to say why the different forms of actions were adopted. "It may be, that, in the first instance, they were contrived, as mysteries, to secure to the learned of the Patrician Order of Rome, the exclusive administration of Justice. Most certain it is, they have always been mysterious to the great body of the people. It may be they are the productions of scholastic pedantry. They have been long esteemed as not unworthy of such an origin. If neither of these be their source, we may safely say, it is not known why they were adopted. "It is worthy of notice, also, that these actions were in former times far more numerous than at present. As society progressed, as knowledge prevailed, as commerce extended, as the relations and business of life multiplied; in a word, as the necessity for speedier and better justice increased, the actions diminished. One after another, they have been thrown away, as worthless, cumbersome, and embarrassing. Formerly, when the Common Law was in comparatively a crude condition, and the Law Merchant was but a special custom, they used a great number of actions; now, when the Common Law has expanded itself in every direc tion, meeting every want of this advanced age, and the Law Merchant has grown into a vast science, we administer it all, with not more than ten actions, and some of these are passing away. "While the Law has extended itself, and contracts and cases have greatly increased, and we have required more Courts and Judges, these actions have regularly declined, and are still declining. It would seem, that they do not thrive, as the people become intelligent, and society becomes practical. "We say it is practicable to abolish the distinctions between actions at Law. We know that very many of them have passed away by mere neglect, and some of the few we have retained, are now languishing in obscurity and oblivion. Our Chancery practice owes its origin in part to this defect in the Law practice, and has, long since, fully illustrated the proposition, that one form of action will answer for every case. The simple petition has served for all the cases cognisable in the Courts of Chancery, and they are quite as complex and various, as those that must be brought in the Courts of Law. "Is it expedient to abolish the distinctions between actions at Law? 'In some "There are in Ohio, say ten actions for Law cases, and but one for Chancery cases. These ten actions are different, each from every other one, and each one has been framed for a particular purpose. Where claims of one kind are sued, the action must be assumpsit; for claims of another kind, the action must be covenant; of another, trespass; of another, trespass on the case, and so throughout. For every class of claims there is an appropriate action. If a party having a claim, sue upon it and mistake the appropriate action, the mistake is fatal to the suit. cases, there is only one action, by which the plaintiff can succeed. There is one right action and eight or nine wrong ones. In other cases there are two or more actions, either of which will enable him to recover; but generally some one is more appropriate than any other, and will afford the means of taking some advantage. If the wrong action be brought, as we have before said, the error is fatal. The plaintiff must go out of court.' He may have served his adversary in due time; he may have advised him fully of the nature of his claim; he may have proceeded openly and fairly; but this will not be considered, if the action be a wrong one, as trespass, when it should have been trespass on the case. He must pay the costs, and go out of court. If he choose, he may begin again; but he must be careful to adopt the right action, for no other will bring his case into court. "It is often very difficult to determine the right action. The client is, of course, entirely ignorant about it, and good lawyers are not seldom perplexed in making the selection. Time and money have been wasted, and much injustice has been done by the application of this rule. The cases, where parties have been turned out of court for such mistakes, are numberless, and occupy a large space in the volumes of reports. This evil may be reme |