Evening journal., 1900-10-26

And the lord chancellor then took
a review of the several acts of Parlia-
ment IN question. and, without ex-
pressing any opinion upon the effect OF
them said:
~ can sustain the injunction only
upon the terms Of its being accompan-
ed wOth some provision for putting
the question Immediately into "A course
OF legal investigation lie then sug-
gested the course to be pursued and
concludes. "and i'm default of the
plaintiffs bringing such action within
a given time, the injunction must be
dissolved"
| think careful consideration Will
show that Lord Cottenhams language
applies with peculiar force to the
pending cause and to this jurisdiction.
In the case OF the Equitable Guaran-
tee and Trust Company. VS.. Donahoe,
tax collector. 45 Atlantic Reporter,
page 5S4, the chancellor treated of the
jurisdiction of the Court of Chancery
In this state at length, and as the case
does not yet appear in our own reports
it seems desirable for me to quote from
instead of merely citing it: The cham
cellOr said with the exception Of
New Jersey, as is well-known, the
State OF Delaware stands alone in pre-
serving in full force and efficiency
that distinct equitable tribunal which
Is the slowly built and deliberately
fashioned product Of many generations
of the best minds known to legal his
tory-the Court of Chancery."
COURT DETERMINES JURIsDIC-
TION.
"And it is obvious that questions of
jurisdiction may well be determined in
one way by the Court of Chancery,
which is called upon TO decide wheth-
or. in a given case, it should assume
Jurisdiction OF a cause, or leave the
controversy to be determined by the
law courts, being distinct tribunals,
composed of the law judges, and in
another way by a court which is the
lcnly tribunal that can hear and deter
mine the controversy in any event,
and which is only called upon to de-
eide whether ii should hear and de-
termine it as a court of equity, en-
ploying the procedure and remedies
appropriate TO court of equity. or
as court of law using the procedure
and remedies appropriate to a law
court
Then after citations illustrating the
attitude and point of view of those
blended tribunals in regard to ques-
tions of jurisdiction, the chancellor
proceeded as follows:
THE statute which gives to the
Court OF Chancery in this state essen
TALLY the jurisdiction of the English
Court Of Chancery. is the same statute
which conferred equitable jurisdiction
upon the Colonial Court of Common
Pleas in the reign of George 1. Cor
don being acknowledgements of the
province.
THE present court of chancery was
created by the Constitution of 1892
and invested by that Constitution
with the equitable jurisdiction thereto.
fore vested in the judges OF the court
lOf common pleas; the phraseology O
the original colonial statute in all tn,
! iurisdictiOnal clauses remaining unal
tered to the present day. except for tn,
slight notifications necessitated by
the constitutional substitution of &
chancellor for the judges of the court
of Common Pleas"
And this statute. as well as the
colonial statute OF George I. contains
the following proyiso: Provided, thai
the chancellor shall not have powel
e. determine any matter wherein suf
hcient remedy may be had by commor
law or statute before any other c0ur
or jurisdiction of this state; but tha
where matters. determinable at com
mon Jaw, chall be brought before hir
10 ciuity he shall remit the parties :
the common law. q Delaware Laws
pagcs A. and 131. 1872. c, 54a. section.
81 and -. Constitution of 1872. Ariel,
Il VI. Seton 1l)
Thus while all the powers Of thi
English Court of Chancery were vested
in our Court of Chancery by the Con
stitution and laws of this state. tn,
most effective barrier against possible
encroachments either upon other tri
bunals or the rights Of individuals wa
not left to be drawn from Englisl
precedents, or general principles. bu
was explicitly expressed as words O
limitation or prohibition in the yer.
statute which conferred the genera
powers"
> MUST PRESERVE STATUS QUO.
, lt is therefore manifest that If tnerl
= be a sufficient remedy to be had b.
, common law before the Superio
, Court-a plain and adequate methol
Of ascertaining the rights in dispute
= it is not within the power of this cour
E to determine them. but it is its dut
to preserve the status quo by enjoin
2 ing the defendants from excavatinl
the streets, pending the determinatiO
of the rights of the parties by tn
r. proper tribunal.
Is there any question but that a sim
] pie and adequate method OF ascertain
ing all the rights in controversy
would be by proceedings in mandarin
= on the relation Of the Oxy-Hydroge
r Company TO compel the Street an
Sewer Department to grant it a pei
NIT to exvavate the streets. etc? An
n is IL not the only adequate method?
S Il might be considered unnecessar
- TO cite authorities to sustain IN
r former proposition since it must b,
e come self evident from the mere COZ