It is a rule of decision in every transaction, which consists of receipts and payments, debts and credits, that the balance constitutes the debt. This rule is not enacted by any statute, but flows from natural equity, the observance of which is incumbent on every tribunal. In modern times, the judges of the courts of law in Great Britain have shewn a strong inclination to extend the equitable part of their jurisdiction. Hence we find, that in virtue of the general jurisdiction, which they claim to have over the suitors in their respective courts, and not under the authority of any statute, they allow opposite demands arising on judgments to be set off on motion against each other, whenever such set-off is equitable. Thus, one of several defendants, against whom a judgment had been recovered, was permitted, on suspicion of the plaintiff's insolvency, to set-off a a demand, which arose on a separate judgment, which he had obtained against the plaintiff. In another case, a person who was equitably entitled to a judgment which had been rendered for costs in an action, in which his name did not appear on the record, was permitted to set them off in an action, in which he had been nonsuited. As a further proof of the equitable nature of this practice, it is settled in the King's Bench, that the attorney's lien upon the judgment of his client shall, on his application, be first satisfied, before the opposite party can set-off any judgment, which he has obtained, whether there are the same or different attornies in the different causes. In the Common Pleas,

† Dennie v. Elliot, Hill and others. 2. H. Black. 587.

O'Conner. Murphy1.H.Black.659.
Mitchell v. Oldfield 4 T. R. 123.

however, the count has in several decisions held, that the attorney can only have such a lien on the costs, as is subject to the equitable claims of the parties in the cause. But a practice so unjust, by which an attorney is deprived of taking his costs from a fund, which he by his diligence has recovered for his client, has been shaken by a recent case.*

Where mutual demands, originating in distinct causes, exist, the one cannot, at common law, be set off against the other, but each party must seek for his remedy in a separate action. Like the other parts of that ancient system, this rule is founded in good reason: for the plaintiff can be expected to come to trial ready to support only the demand, which he has instituted, and it would be unreasonable, if he might be surprised with any counter claim of the defendant, which is not connected with the transaction. But still, if the plaintiff is indebted to the defendant more or less than the defendant is indebted to him, it is most equitable, that some mode should be devised of striking a balance, without compelling the parties to resort to separate suits. For this purpose, the British parliament has enacted various statutes, some of which have been adopted in this commonwealth, and all of which might perhaps with advantage be incorporated into our judicial code. By these statutes, where mutual debts exist at the commencement of a suit, between the plaintiff and defendant, or where either party sues or is sued in a representative capacity, as executor, administra tor, or as the assignee of a bankrupt, if there are mutual debts be

Hall v. Ody. 2 Pull. & Bos. 29 M. 40 G. 111. A. D. 1799.

tween the estate of the principal and the other party, one debt may be set against the other. This may be done by giving it in evidence on the general issue, or by pleading it in bar: except where either of the debts accrued by reason of a penalty contained in a sealed instrument, in which case the debt intended to be set off must be pleaded in bar, and the plea must state how much is truly and justly due on either side: but in all cases where the general issue is pleaded, notice must be given at the time of pleading, of the particular sum or debt intended to be set-off, and upon what account it became due.

Within this commonwealth, commonwealth, our statutes authorise a defendant, who is sued on a simple contract, not under seal, to give in evidence, under the general issue, his account against the plaintiff, which has been duly filed, for goods delivered, monies paid, or services done. But we think, that the whole admirable system, which prevails in Great Britain, on this subject,is worthy of being adopted within this state; because it is calculated to lessen the number of suits, and to diminish the expense of litigation. By our present law, if the plaintiff is as much or even more indebted to the defendant, than the latter is to him, there is no provision made for striking a balance, except in the limited number of cases, which are stated above. In a court of equity, men are compelled to do what is most clearly just and right to be done; and therefore on application to such a tribunal, the plaintiff might be compelled to strike a balance. But even this course was found in Great Britain to be too tedious to afford an adequate remedy, and therefore the statutes of set-off were enacted to supply the defect.

We should here conclude the notice of this book, but as we have. mentioned the jurisdiction of the court of chancery, we shall advert to the necessity of adding such a tribunal to our judicial system. It is becoming every day more nec-. essary in this commonwealth, by reason of its increasing numbers and growing commerce. The means of redress for injury, and for the defence of right, should keep pace with the publick necessities. For every wrong there ought to be a remedy well known, and common to all the citizens. We confess there is nothing to apprehend, that our laws will not be sufficiently numerous; but we have something to fear, that from the imperfect organization of our judicial system, or from the defect of competent tribunals, evils will exist, for the redress of which it belongs to a well regulated government to make an adequate provision. We can enumerate important evils, which may exist, to which our courts of law cannot apply a remedy, and for the redress of which we ought to be able to apply to a court of chancery.

Many valuable estates are holden in this commonwealth by persons in trust for individuals and bodies corporate. But we have no tribunal to compel the performance of these trusts, if the fiduciary should refuse to account for the profits, or if the cestui que trust should require the actual seizin of the estate.

There is no tribunal, in which a trustee of personal property, as, for example, one in whose name publick stock stands in trust for another, can be compelled to trans-, fer the certificates. Nor is there a tribunal, which can compel persons, to whom personal property is assigned, on condition of performing certain duties, to the spe

cific performance of those duties. A person can, at common law, recover for breach of a covenant only the stipulated penalty for non performance, or damages for the breach to be estimated by a jury. But it may often happen, that this will be an inadequate remedy; and therefore it is desirable, that we may be able to recur to some tribunal, which shall have power to inforce the specific performance of an agreement, unless natural justice should require, that it should not be executed. Our present judicial system is defective in these respects, and hence we infer the necessity of the creation of a Court with Chancery Jurisdiction,

The Chancery is, in its proceedings, absolved from "the stated conciseness and traditionary forms" of the courts of law, and modifies its decrees according to the equity of each case. It has power to prescribe or forbid particular things to be done or suffered by a decree tam in personam quam in rem. The prohibitory writ, called an injunction, which is sues from this court, "is more "expeditiously and specifically ❝ remedial in preventing the waste and spoliation of estates, than re"dress by action at law. Injunc❝tions are with equal reason gran❝ted to inhibit the sudden and in❝iquitous dissolution of a com"mercial partnership, to stay proceedings at law, and in general to restrain any injury and mis"chief not easy to be repaired."t The power which this court has to compel a party to any secret transaction to a conscientious discovery on oath, as for example, to disclose the consideration of a bond, charg ed to have been obtained by legal fraud, has been found on experi

† 1 Woodd. Lectures. 206. Vol. IV. No. 2. N

ence to promote the ends of justice. This power does not authorise the court to compel a man to confess what would render him liable on a criminal accusation. There arises a temptation to commit perjury, when men are permitted or required to testify where their interest is concerned. But cases frequently occur,where there is no other mode of bringing to light dark things, than by requiring the agents to relate them under the awful sanction of an appeal to Him, who is the certain avenger of perjury.

The Chancery has the power of mitigating, in particular instances, the rigour of positive law, where, from the imperfection of language, or from the nature of general provisions, the letter of the law is in truth at variance with the intention of the legislator. But this does not authorise any violation of a fundamental maxim of the com mon law, or any decision contrary to the meaning and intent of a statute. The same law prevails in the courts of law and in the chancery, but the great and important benefits, which result from the late ter jurisdiction, flow from its mode of administering justice, whereby it is enabled to reach cases, and to apply remedies, to which the for mer cannot apply adequate relief, or of which they have not cognizance.

It is not our intention to enter into a minute investigation of the original nature or use of courts of chancery. We wish only to suggest the subject to the consideration of those, whose province it is to provide for the publick necessities and to whose wisdom, fidelity and power are committed, "omnis reis

publicæ dignitas, omnium civi" um salus, vita, libertas, aræ, "foci, dii penates, bona, fortunæ, "ac domicilia."

ART. 6.

American Annals; or a chronological history of America from its discovery in 1492 to 1806. In two volumes. By Abiel Holmes, D.D., A. A. S., S. H. S., minister of the first church in Cambridge. In two volumes. Vol. II. Comprising a period of one hundred and fourteen years. Cambridge,

Wm. Hilliard. 8vo. pp. 540.

IT is with no small pleasure we see the other volume of this valuable work emitted from the press. We consider it among the useful publications of this country and the author has endeavoured to make the book entertaining, as well as useful. It is a kind of family record for those, who are members of the same community; to which they will occasionally recur for facts and dates, and in which they will find lively remarks and biographical sketches well interspersed to increase their general information. Our annals exhibit men worthy of our admiration and love, to whom we look with interest and affection, and whose examples glow, while their precepts teach better than monuments of marble and brass. "There be of them, that left a name behind them, that their names may be reported."" And there be some that have no memorial," as speaks the eastern sage; "who are perished, as though they had never been, and have become as though they had never been born, and their children after them But these were merciful men, whose righteousness has not been forgot

ten."

The present volume contains the transactions of New-England, since the charter of William and Mary, more fully than those of the

other parts of America; or rather it may be called the annals of that part of North America, now comprised within the government of the United State; though at times our author refers to important events in South America, and the West Indies.

Soon after Governour Phips arrived with the new charter the witchcraft at Salem. country was disturbed by the

'A strange infatuation had already begun to produce misery in private families and disorder throughout the community. The imputation of witchcraft was accompanied with a prevalent belief of its reality; and the lives of a considerable number of innocent people were sacrificed to blind zeal, and superstitious credulity. The mischief began at Salem in February; but it soon extended into various

parts of the colony. The contagion was principally within the county of Essex. Before the close of September, nineteen persons were executed and one pressed to death, all of whom asserted their innocence.'

The Dr. here gives a just view of the conduct of the judges, and the spirit of the people; for which he is much indebted to a most excellent letter, preserved in the Collections of the Historical Society, and written by Thomas Brattle,esq.

There are some curious things extracted from other MSS. especially Judge Sewall's, one of the judges, who conderaned these unhappy persons, and afterwards lamented his delusion.

The trial of the witches in Suffolk, 1084,' says Dr. H. ' manifested, that there was so exact a resemblance between the Old England demons and the Nerv, it can hardly be doubted, the arts of the designing were borrowed, and the credulity of the populace augmented from the parent country.'