Imatges de pàgina

It is a rule of decision in every however, the count has in several transaction, which consists of re- decisions held, that the attorney ceipts and payments, debts and can only have such a lien on the credits, that the balance constitutes costs, as is subject to the equitable the debt. This rule is not enact- claims of the parties in the cause. ed by any statute, but flows from But a practice so unjust, by which natural equity, the observance of an attorney is deprived of taking which is incumbent on every tri- his costs from a fund, which he by bunal. In modern times, the judg- his diligence has recovered for his es of the courts of law in Great client, has been shaken by a reBritain have shewn a strong incli- cent case.* nation to extend the equitable part Where mutual demands, origiof their jurisdiction. Hence we nating in distinct causes, exist, the find, that in virtue of the general one cannot, at common law, be set jurisdiction, which they claim to off against the other, but each parhave over the suitors in their res. ty must seek for his remedy in a pective courts, and not under the separate action. Like the other authority of any statute, they allow parts of that ancient system, this opposite demands arising on judge rule is founded in good reason : ments to be set off on motion a- for the plaintiff can be expected to gainst each other, whenever such come to trial ready to support onset-off is equitable. Thus, one of ly the demand, which he has inseveral defendants, against whom a stituted, and it would be unreasonjudgment had been recovered, was able, if he might be surprised with permitted, on suspicion of the any counter claim of the defenplaintiff's insolvency, to set-off a dant, which is not connected with a demand, which arose on a sepa- the transaction. But still, if the rate judgment, which he had ob- plaintiff is indebted to the defendtained against the plaintiff.f In ant more or less than the defendanother case, a person who was e- ant is indebted to him, it is most quitably entitled to a judgment equitable, that some mode should which had been rendered for costs be devised of striking a balance, in an action, in which his name without compelling the parties to did not appear on the record, was resort to separate suits. For this permitted to set them off in an ac- purpose, the British parliament tion, in which he had been nonsuit- has enacted various statutes, some ed.As a further prooi of the e- of which have been adopted in this quitabie nature of this practice, it commonwealth, and all of which is settled in the King's Bench, that might perhaps with advantage be the attorney's lien upon the judg- incorporated into our judicial code. ment of his client shall, on his ap- By these statutes, where mutual plication, be first satisfied, before debts exist at the commencement the opposite party can set-off any of a suit, between the plaintiff and judgment, which he has obtained, defendant, or where either party whether there are the same or dis- súes or is sued in a representative ferent attornies in the different capacity, as executor, administracauses.ll In the Common Pleas, lor, or as the assignee of a banktween the estate of the principal We should liere conclude the and the other party, one debt may notice of this book, but as we havebe set against the other. This mentioned the jurisdiction of the may be done by giving it in court of chancery, we shall advert. evidence on the general issue, or to the necessity of adding such a by pleading it in bar : except tribunal to our judicial system. It. where either of the debts accrued is becoming every day more necby reason of a penalty contained essary in this commonwealth, by in a sealed instrument, in which reason of its increasing numbers case the debt intended to be set. and growing commerce. The off must be pleaded in bar, and the means of redress for injury, and for plea must state how much is truly the defence of right, should keep and justly due on either side : but pace with the publick necessities. in all cases where the general is. For every wrong there ought to be sue is pleaded, notice must be give a remedy well known, and comen at the time of pleading, of the mon to all the citizens. We particular sum or debt intended to confess there is nothing to apprebe set-off, and upon what account hend, that our laws will not be sufit became due.

rupt, if there are mutual debts be+ Dennie v. Elliot, Hill and others. 2. H. Black. 587. | O'Connero. Murphy1.H.Black.659. Hall v. Ody. 2 Pull. & Bos. 29 M.

Mitchell v. Oldfield 4 T.R. 133. 40 G. 111. A. D. 1799.

ficiently numerous ; but we have Within this commonwealth, something to fear, that from the qur statutes authorise a defendant, imperfect organization of our juwho is sued on a simple contract, dicial system, or from the defect not under seal, to give in evidence, of competent tribunals, evils will under the general issue, his ac- exist, for the redress of which it count against the plaintiff, which belongs to a well regulated govhas been duly filed, for goods de- ernment to make an adequate livered, monies paid, or services provision. We can enumerate done. But we think, that the important evils, which may exist, whole admirable system, which to which our courts of law cannot prevails in Great Britain, on this apply a remedy, and for the resubject,is worthy of being adopted dress of which we ought to be able within this state ; because it is to apply to a court of chancery. calculated to lessen the number of Many valuable estates are holdsuits, and to diminish the expense en in this commonwealth by perof litigation. By our present law, sons in trust for individuals and if the plaintiff is as much or even bodies corporate. But we have no more indebted to the defendant, tribunal to compel the performance than the latter is to him, there is of these trusts, if the fiduciary no provision made for striking a should refuse to account for the balance, except in the limited num- profits, or if the cestui que trust ber of cases, which are stated a- should require the actual seizin of bove. In a court of equity, men the estate. are compelled to do what is most There is no tribunal, in which a clearly just and right to be done ; trustee of personal property, as, and therefore on application to such for example, one in whose name a tribunal, the plaintiff might be publick stock stands in trust for compelled to strike a balance. another, can be compelled to trans-, But even this course was found in fer the certificates. . Nor is there Great Britain to be too tedious to a tribunal, which can compel perafford an adequate remedy, and sons, to whom personal property therefore the statutes of set-off is assigned, on condition of perwere enacted to supply the defect. forming certain duties, to the spe

cific performance of those duties. ence to promote the ends of jusA person can, at common law, re- tice. This power does not authcover for breach of a covenant on- orise the court to compel a man ly the stipulated penalty for non to confess what would render bim performance, or damages for the liable on a criminal accusation. breach to be estimated by a jury. There arises a temptation to conBut it may often happen, that this mit perjury, when men are perwill be an inadequate remedy; mitted or required to testify where and therefore it is desirable, that their interest is concerned. But we may be able to recur to some cases frequently occur,where there tribunal, which shall have power is no other mode of bringing to to inforce the specific performance light dark things, than by requirof an agreement, unless natural ing the agents to relate them unjustice should require, that it der the awful sanction of an appeal should not be executed. Our pre- to Him, who is the certain avensent judicial system is defective in ger of perjury. these respects, and hence we infer The Chancery has the power of the necessity of the creation of a mitigating, in particular instances, Court with Chancery Jurisdiction, the rigour of positive law, where,

The Chancery is, in its pro- from the imperfection of language, ceedings, absolved from “ the or from the nature of general prostated conciseness and traditionary visions, the letter of the law is in forms” of the courts of law, and truth at variance with tbe intention modifies its decrees according to of the legislator. But this does the equity of each case. It has not authorise any violation of a power to prescribe or forbid par- fundamental maxim of tnc comticular things to be done or suffer- mon law, or any decision contrary ed by a decree tam in personam to the meaning and intent of a quam in rem. The prohibitory statute. The same law prevails in writ, called an injunction, which is the courts of law and in the chansues from this court, “is more cery, but the great and important “ expeditiously and specifically benefits, which result from the lat. " remedial in preventing the waste ter jurisdiction, flow from its mode 6 and spoliation of estates, than re- of administering justice, whereby it “ dress by action at law. Injunc- is enabled to reach cases, and to

tions are with equal reason gran- apply remedies, to which the for: “ ted to inhibit the sudden and in- mer cannot apply adequaterelief, or 5 iquitous dissolution of a com- of which they have not cognizance: “ mercial partnership, to stay pro- It is not our intention to enter & ceedings at law, and in general into a minute investigation of the " to restrain any injury and mis- original nature or use of courts of “ chief not easy to be repaired.”+ chancery. We wish only to suggest The power which this court has to the subject to the consideration of compel a party to any secret trans- those, whose province it is to proaction to a conscientious discovery vide for the publick necessities on oath, as for example, to disclose and to whose wisdom, fidelity and the consideration of a bond, charg- power are committed, “omnis rei. ed to have been obtained by legal « publicæ dignitas, omnium civifraud, has been found on experi- « um salus, vita, libertas, aræ,

“ foci, dii penates, bona, fortunæ, # 1 Woodd. Lectures. 206.

« ac domicilia.” Vol. IV. No. 2. N

other parts of America ; or rather ART. 6.

it may be called tite annals of that American Annals ; or a chronolog

· part of North America, now comical history of America from its prised within the government of

the United Stalon ; though at discovery in 1492 to 1806. In two volumes, By Abiel Holmes,

times our author refers to imporD.D., A. A.S., S. H. S., minister

tant events in South America, and

the West Indies. of the first church in Cambridge.

Soon after Governour Phips arIn two volumes. Vol. II. Com. prising a period of one hundred rived with the new charter the and fourteen years. Cambridge,

country was disturbed by the Wm. Hilliard. 8vo. pp. 540.

witchcraft at Salem.

*A strange infatuation had alreaIT is with no small pleasure we dy begun to produce misery in prisee the other volume of this valu- vate families and disorder throughable work emitted from the press.

out the conimunity. The imputaWe consider it among the useful tion of witchcraft was accompanipublications of this country : and reality ; and the lives of a consi

ed with a prevalent beliet of its the author has endeavoured to derable number of innocent people make the book entertaining, as were sacrificed to blind zeal, and well as useful. It is a kind of superstitious credulity. The misfamily record for those, who are chief began at Salem in February; members of the same community; but it soon extended into various to which they willoccasionally recur parts of the colony; The contafor facts and dates, and in which gion was principally within the

county of Essex. Before the close they will find lively remarks and bio- of September, nineteen persons graphical sketches well interspers- were executed and one pressed to ed to increase their general infor- death, all of whom asserted their mation. Our annals exbilit men innocence.' worthy of our admiration and The Dr. here gives a just view love, to whom we look with inte- of the conduct of the judges, and rest and affection, and whose ex- the spirit of the people ; for which amples glow, while their precepts he is much indebted to a most exteach better than monuments of cellent letter, preserved in the Colmarble and brass. “ There be of lections of the Historical Society, them, that left a name behind and written by Thomas Brattle,esq. them, that their names may be There are some curious things reported.” “ And there be some extracted from other MSS. espethat have no memorial," as speaks eially Judge Sewall's, one of the the eastern sage ; " who are pe- judges, who condemned these unrished, as though they had never happy persons, and afterwards been, and have become as though lamented his delusion. they had never been born, and The trial of the witches in their children after themi But Suffolk, 1884,' says Dr. H. manithese were merciful men, whose fested, that there was so exact a righteousness has not been forgot- resemblance between the Old ten."

England demons and the Nev, it The present volume contains can hardly be doubted, the arts of the transactions of New-Engtand, the designing were borrowed, and since the charter of William and the credulity of the populace aug. Mary, more fully than those of the mented from the parent country.'

This remark' is confirmed by ces are marked down ; and we facts. Glanville had written a have only to wish, that observations book of odd tales and silly legends, had been made in books of an to prove that witches may turn earlier date. by the philosophers in to cats and dogs, and that they of Europe. The same causes who have any correspondence, es- produce like effects. It would te pecially carnal copulation with strange to think this phenomenon them,may do likewise. This book, had never attracted men's attenwhich Dr. I. Mather brought over, tion before. We put the question was read and believed. It was then for information, Whether, in the combustible matter of Salem the old books, nothing is said about witchcraft. John Webster, a prac- the Aurora Borealis among the aptitioner in physick, a plain man, pearances of the heavens? Whethbut a great philosopher, turned the er the ancients have observed any work of Glanville into ridicule, so thing about it? What Seneca that it lost its credit in England ; meant by the chasmata cæli ? Some and Robert Calef of Boston did have thought be intended the the same in New-England by his same phenomenon. Wonders of the Invisible World, In page 125 of this volume we in which he exposed the influence

are made acquainted with the of the Mathers, and confuted their number of negroes in South Carowritings.

lina in 1730. They are estimated Of the pirates who spread so to have been 20,000 ; of which great an alarm along the coast of number 10,000 are supposed to the Southern colonies, mentioned have been capable of bearing arms. in page 95, Dr. Ilolmes might Their superiority to the white have obtained a more correct ac- people emboldened them to lay a count from vol. 6 of State Trials, plot for a general massacre, but it than perhaps any journalist could was seasonably discovered,and hapafford him. Several of the crew pily suppressed.' were acquitted,and even sone who We call that part of the Annals were found guilty were not exe- very useful, which preserves the cuted. Twenty-two were hanged account of the population, the trade, at once in Charleston, and their treaties with the Indians, &c. commander soon after.

Hence we shall quote the state* A.D.1719. The Aurora Borealis

wept of the whale fishery on the was first seen in New-England on

North American coast in the same the 17th of December.

It began year. about 8 o'clock in the evening ; and filled the country with terrible

* For there axived in England alarm. It was viewed as a sign of fromthese coasts, aboạt the month the last judgment. This phenom- of July, 154 tons of train and whale enn was first seen in England oil

, and 9200 of whale hone. In the 6 March, 1715, from the evening to

first 15 days of July, there arrived' near 3 o'clock in the morning, to

at London from the American sugar the great consternation of the peo- of sugar, and 15,000 gallons of rum;

colonies upward of 10,000 hogsheads ple.' P. 99.

question arises concerning the Aurora Borealis

, whether it puted to have been carried to Brishad ever appeared before this Barbadoes, this year, there were

tol, Liverpool, and Glasgow. From time? We see the benefit of an

exported to Great-Britain 22,769 Kals, where remarkable appearan- hogsheads of sugar.

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