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

l except IN cases where the deteuuaut, AFTER
suit brought, has put il out OF hls power to
| perform, and the specific performance is de-
MED that account. After review Of the
/ subject, Judge Story sums up by saying: In
/ the present state of the authorities, involv-
/ ing as they certainly do, some conflict of
/ opinion, IL is not possible TO affirm more,
than that the jurisdiction for compensation
/ or damages, does not ordinarily attach IN
equity, except as ancIllary 10 a specific per
| formance, or some other relief 1t il does
attack in any other cases, it must be under
very special circumstances, and upon peeu-
/ liar equities, as for instance in cases of
4 fraud, or in cases where the party has dis
| abled himself by matters er post fact0, from
! a specific performance; or in cases where
there Is no adequate remedy at law q Sto-
| ~, Ed Ju- Chap. l9, Secs. 794 TO 799. Viii
lard's Eq. Ju 309)
Nor do we think the claim stands on a
/ better footing under the amended or ex-
| planatory order Its language is, Sin 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 6eereeing compensation
| or damages as ancillary and incidental to
/ a decree of specific performance, and APP
| plies only to cases in which il is proper to
| decreee such specific performance Com
| order as an alternative relief, and must be
/ supported by an ordinary decree of specifi:
I 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
II 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 a court of
equity, the judges of the Special
Court shall have power to en-
terrain bills for the recovery of compensa-
tion 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 lie to make a very uInUAonV
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-
ecutlve of the nation, while holding State
under absolute military rule, to create pro-
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 eth amendment of the Constitu-
tiOn provides that, Tin cases at common
law, where the value in controversy shall
exceed twenty dollars, the right of trial by
jury shall be 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
certained and determined, in contradistinc-
ton to those where equitable rights alone are
recognized, and equitable remedies admins
tered; or where, as in the admiralty, a mix
ture of public law, and of maratime law and
equity, are often found in the same suit
| This clause of the constitution embraces all
suits which are not of equity OF admiralty
jurisdiction, whatever may be the peculiar
form they assume to settle legal rights
Parsons VS.. Bedford, Peters, 433, 1861
And the adoption of the State practice by
the Courts of the United States, in States
where no distinction exists between cases at
law and equity, does not eonfound 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 party who
claims legal title must prove at law, and
may proceed according to the forms of prac-
tice in such cases N the State Courts.
But If the claim is an equitable one he
must proceed accOrdingt 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
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 legislati or executive declara-
Fable in court of equity. What BELONGED |
to the jurisdiction IF courts of equity. at |
the adoption of the Constitution, belongs to |
them still; and Whatever was then corniza |
BILE in the Courts of common law remains a |
suit at common law" in which the parties
are entitled to jury trial. right Justly |
dear to the Americal people, and which it |
Is the duty of the Court to preserve protect
and defend. If therefore, the Executive had
undertaken, which we think he did not
mean to do, to extent the equity Jurisdiction
of the Special Judge so as TO embrace the
adjudication of any egal right, such action
would have been void for the want of a pro- !
vision for a trial by jury.
1t was as easy to hive created a court of
law, with power to sdjudieate legal rights
as to establish this court of equity. The power
was the same. Indeed the whole jurisdiction
might have been beftowcd upon the same
tribunal The omission to do so is itself
very. significant ant no argument can be
raised from it in fayr of extending by con-
strnctlon the power of the Equity Judge,
giving the powers tie largest latitude con
tended for, and they would then embrace
only limited class IF persons, and but a
very small portion the subjects of legal
and equitable jurisprudence, leaving credi-
tors, generally, who'll without any remedy
The ordinance of he State Convention,
as mas been shown, merely recognizes the
existence of the SPECIAL courts, for the pur-
pose of subiecting Them to the controlling
supervision of this court 1t does not I'M
dertake to create item, nor - define their
powers, nor to ratify the action of the Gov
ernOr in establishing them. Itassumes that
they already existed by lawful authority.
with whatever jurisdiction they were >eIn-
powered rightfully to exercise. What that
jurisdiction was we have attempted to ex-
plain, and we have shown that il was not
intended to give them any powe, to adiudi-
cate legal rights, but only such cases of equity
cognIzance as were enumerated in the acts !
by which they were instituted. The Con
vention did not deal with their jurisdiction
to enlarge, restrain or confirm it. :
Ii the right to take eognizanG of cases /
IKE the present, depends at all upon this or
dlnance, we do not think the Jurisdiction :
can derive any support from it. n addition :
to the views presented as to the intention I
apparent upon the face of the acs creating /
the courts, and of the ordinance recognizing |
them which appear to us to be conclusive ,
If the question, there is another argument
II much force against giving the ordinance I
he construction commended for If it is to '
have the effect of comforting upon the court '
he powers claimed for it, then the Conven- L
lon must be understood to hare intended L
he creation of State Court for the settle I
nent of legal rights, in which the trial by :
ury should not be admitted /
When we consider that the same Conyep- :
lon, at the same moment, put forth consti- n
uton tor the State. containing, in its first ! L
hapter, a Declaration of Rights in which L
5 embodied a provision, common to the CON il
tituti0ns of all the States, as well as that of
he Union, that "the right of trial by Jury L
hall remain inviolate, and that this Decla- II
alton of rights concludes with the empbatic
ssertiOn, that everything therein contained u
is excepted out of the general powers of i
government, and shall forever remain invio- il
ate and that all lawscontrary thereto shall
'e void" We cannot suppose that the Con- a.
entlon intended, by a collateral ordinance
emedlal in its character, and of the nature /
f an act of ordinary legislation, to violate
he fundamental principles which they had