Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-06-20

suit brought, has put it out of his power to
perform and the specific performance Is de-
MED on that account. After review OF the
subject, Judge Story sums mp by saying: In
the present state of the authoritles, lnvolv-
ing as they certainly do, some conflict OF
opinion, it is not possible to affirm more,
than that the Jurisdiction for compensation
or damages, does not ordinarily attach in
equity, except rs ancillary to specific per-
Torrance, or some other relief. IL 1t does
attack in any other cases, 1t must be under
very special circumstances, and upon pecu-
liar equities, as for instance In cases of
fraud or in cases where the party has dis
abled himself by matters er post fdctO, from
a specific performance; or in cases where
there is no adequate remedy at law q StO-
~, Eq. Ju. Chap 19, Secs. 794 to Ivy. Will
lards Eq. Ju. 3O9) . r,
Nor do we think the claim stands on
better footing under the amended or ex-
planatory order Its language is, ''in de-
creeing specific performance, he (the Judge)
has power to make his DEGREES in the alter
native, for the cotton or other property, or
| its value" 1t was evidently intended
merely to expand the jurisdiction, proper to
| a court of equity, of decreeing compensation
| OF damages as ancillary and incidental to
decree of specific performance, and APP
plies only to cases in which it is proper to
| decreee such specific performance. Com
|
order as an alternative relief, and must be
supported by an ordinary decree of specific
performance and, in cases like the one
under consideration, where it is improper to
decree a specific performance, there can of
| course be no alternative decree for compen-
| satiOn or damages
Any other Interpretation of this explain
atOry order would give it an effect far be-
| yond its legitimate scope and object, and
beyond the constitutional power of the
| Provisional Governor or of the President.
If not restricted in its application as above
stated then its effect must be to declare
that, in all cases of contracts for cotton or
other personal property, where specific
| performance cannot be decreed according to
the general principles of court of
| equity, the judges of the Special
| Court shall have power to en-
terrain bills for the recovery of compensa-
ton or damages for the breach of such con-
tracts, and that the measure of damages
shall be the value of the property on the
| day the suit shall be commenced, with ten
per cent added thereto.
| This would be TO make n very uIneI
rule from the one actually presented by the
Governor and would do violence not only
to his plain intention, but also to clear
constitutional principles.
Without disputing the power of the Ex-
ecutiye of the nation, while holding State
visional governments, to Ordain laws, and to
establish judicial tribunals for their admin
istratiOn, still, all these powers must be ex-
ercised in subordination to the Constitution
of the United States. That instrument
recognizes the distinction between legal and
equitable rights, and when the President or
his subordinate, undertake to create civil
tribunals to administer the laws of any
State or territory held for the time being
under military dominion, he is bound to re-
spect the fundamental regulations, and to
refrain from exercising power which the
legislative department of the Government
could not in the same case possess. He may
abstain from instituting civil tribunals if he
will; but if he exercises the power, he can
not disregard the restrictions of the organic
law. The 9TH amendment of the Constitu-
ton provides that, Tin cases at common
law, where the value in controversy shall
exceed twenty dollars, the right of trial by
jury shall he preserved" The phrase com
mon law" is here used in contradistinction
to equity, and admiralty and maritime jul
risprudence The trial by jury is required
in all suits in which legal rights are to be as
certa;ned and determined, in contradistinc-
ton to those where equitable rights alone are
recognized, and equitable remedies admins.
tered where as in the admiralty, a mix
, ture of public law, and of maratime law and
equity, are often found in the same suit
suits which are not OF equity OF admiralty
jurisdiction, whatever may be the peculiar
form they assume to settle legal rights
! Parsons VS.. Bedford, 3 Peters, 433, 1867. !
And the adoption of the State practice by
the Courts of the United States in States
p where no distinction exists between cases al
law and equity, does not confound the prin
ciples, nor authorize legal and equitable
; claims, to be blended together in one suit
, The Constitution establishes the distinction
between law and equity, and a party who
I claims legal title must prove at law, and
9 may proceed according to the forms of prac
tice in such cases in the State Courts
But if the claim is an equitable one he
must proceed according to the rules which
the Supreme Court of the United States has
prescribed, regulating proceedings in equity
in the Courts of the United States. Bennett
VS.. Butterworth, ii Howard, u. s., 669, GA.
A suit to recover damages or compensa
ton, for the breach of a contract for the sale
and delivery of personal property, is a pure
1 ly legal demand, and is properly the subject
of a "suit at common law" and the party
cannot be deprived of his right of trial by
| jury, by a legislative or executive deelara
| tion that the subject matter shall be c0gui
9 Fable in a court of equity. What belonged
to the Jurisdiction of courts of equity, al
the adoption of the Constitution, belongs t.
them still; and whatever was then cogniza
= | BILE in the Courts of common law, remains {
suit at common law" in which the parties
are entitled to jury trial; right Justly
dear to the American people, and which il
e is the duty of the Court to preserve, protect
e and defend. If therefore, the Executive had
: undertaken, which we think he did moi
e mean to do, to extend the equity jurisdiction
: of the Special Judge so as to embrace the
t adjudication of any legal right, such action
4 | would have been void for the want of a pro-
9 vision for trial by jury.
4 1t was as easy to have created court of
: law, with power to sdjudicate legal rights
: as to establish this court of equity. The power
7 was the same Indeed the whole jurisdiction
? might have been bettowcd upon the same
tribunal The omission to do so is itself
, very, significant and no argument can be
| raised from it in favtr of extending by con.
struction the power of the Equity Judge
r giving the powers tie largest latitude con
l tended for, and they would then embrace
t only limited class bf persons, and but q
5 very small portion 6 the subjects of legal
7 and equitable jurisprudence, leaving credi
9 tors, generally, WHOLLY without any remedy
The ordinance of the State Convention
4 | as has been shown, merely recognizes the
| existence of the special courts, for the pur
: pose of subieeting them to the controlling
3 | supervision of this court. 1t does not un
dertake to create them, nor to define theil
: powers, nor to ratify the action of the Gov
r they already existed by lawful authority
: with whatever jurisdiction they were EN-
!. powered rightfully to exercise. What that
, jurisdiction was we have attempted to ex.
4 plain, and we have shown that it was not
intended to give them any power to adiudi-
cate legal rights, but only such eAAes of equity
7 | cognlzance as were enumerated in the acts
l by which they were instituted. The Con
+ ventiOn did not deal with their Jurisdiction
to enlarge, restrain or confirm it.
If the right to take cognizand of cases
&, like the present, depends at all uIDn this or
dinance, we do not think the Jurisdiction
: can derive any support from it. In addition
2 to the views presented as to the intention
, apparent upon the face of the acs creating
the courts, and of the ordinance recognizing
; them which appear to us to be conclusive
, OF the question, there is another argument
1 of much force against giving the ordinance
l the construction contended for. If it is to
: have the effect of comforting upon the court
| the powers claimed for it, then the COnven
ton must be understood to hare intended
the creation of State Court, for the settle
I ment of legal rights, in which the trial by
jury should not be admitted
: When We consider that the same COnven.
: ton at the same moment, put forth eonsti
: tuition for the State, containing, in its first
chapter, Declaration of Rights" in which
7 is embodied a provision, common to the con-
, oeAsuIons VI All Gne STATES, as wen as IlaJ o.
T the Union, that "the right of trial by jury
: shall remain inviolate," and that this Decla-
ration of rights concludes with the emphatic
assertion, that everything therein contained
is excepted out of the general powers OF
Government, and shall forever remain inviO-
late; and that all laws contrary thereto shall
be void" we cannot suppose that the Con-
, yention intended, by collateral ordinance,
remedial in its character, and of the nature
|, OF an act OF ordinary legislation, to violate
the fundamental PRINCIPLES which they had