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Refusal to Contract. A duty exists also not to prevent by wrongful means any one intending to do so from contracting with another, to the latter's damage. In some states, malicious action, even when not wrongful, is sufficient to justify a suit at law.

Actual Damages. It will be noted that in both the above cases actual damage is an element of the legal wrong. It is doubtful if cases are often brought to suit along these lines, but it is well to have some understanding

of the law in the matter.

INFRINGEMENT OF PATENT, TRADEMARK, OR COPYRIGHT

While engineers may have special interest in this subject, space is not available for extended notice here. Statute laws cover the matter. A publisher can be expected to know the steps necessary to secure copyright, and a patent lawyer is essential if a patent is to be secured. If something more or different from this is needed, an examination of the statute, and the reading of a textbook on the subject would seem to be

necessary.

CHAPTER V

EQUITY

Misconception as to Equity. Much misconception apparently exists in the mind of the general public as to what Equity means when used in connection with legal affairs or procedure. The opinion largely prevails that Equity is a synonym for pure right and justice unrestricted by such rules and precedents as have produced rigidity in the Common Law. In an excellent engineering law textbook it is stated that: “ The less you have to do with Law, and the more with Equity, the better." This statement tends to suggest to the mind three errors: first, that the Common Law largely works injustice; second, that Equity can be asked to right most wrongs; third, that one has usually some choice as to the court to which he shall apply. None of these propositions is even substantially true.

Rules and Precedents. Modern Equity is by no means free from the restrictions of rule and precedent; it is necessarily administered by uniform rules. It is true here, just as in Common Law, that a failure to have definite rules of action laid down must result in an uncertainty which would prohibit consistent lawful procedure by any individual, an uncertainty not to be tolerated.

An Established System. Equity does in fact rely upon precedent; its principles are fixed and can be changed only by Statute Law. It is an established system, in some features as rigid as the Common Law, especially as to jurisdiction. Furthermore, in this country, to a very considerable extent, the same judges try cases both in Law and in Equity, sitting today for Law cases; tomorrow for Equity.

Delay. As to delay, while some earlier Equity cases extended over many years, at present, in most Equity cases, more speedy justice can be secured than at Common Law, if either party is duly insistent. This is especially true in the United States Courts.

Hardship. Sometimes the decree of a court of Equity, established by precedent, even works hardship and apparent injustice to an extent not usual at Common Law. In the case of water rights, an owner higher up on a stream will be enjoined from polluting the stream although the stream may sufficiently purify itself so that no material damage occurs

to the owner below who, nevertheless, secures an injunction. The offence exists independent of any damage done and requires a remedy lest it may lead to the acquirement of rights from which injury may possibly result later. Limitations of Common Law. In the development of the Common Law, it came about that the remedy was commonly the award of money damages, although in some cases property, real or personal, was restored to the owner. The forms of action were also limited. It was further true that in some cases the legal title to property rested in one person, while the real beneficial interest rested in another; that certain rights existed which needed protection and which the Common Law did not at all recognize. Origin of Equity Jurisdiction. In earlier days, it became the custom, after a time, when the Common Law failed to meet the case, to address a petition to the King who was recognized as the fountain of justice; a residuum of justice not secured by the Common Law was assumed to rest in him. The procedure was to have these petitions referred to the Privy Council, where they were settled by the Lord Chancellor. Later a Court of Chancery or Equity performed these duties and the foundation of Equity jurisprudence became established. This differed materially from that of the Common Law. In the final outcome courts of Law and of Equity existed side by side, with no substantial overlapping of action or jurisdiction. Kind of Relief Granted. The relief granted by the court of Equity in certain classes of cases was intended to put the person wronged (or imminently liable to suffer a wrong) in the same position he was before the wrong was committed (or in a position he was entitled to, by preventing the wrong from occurring). The court was invested with power to command things to be done (or not to be done), and in this way to remedy defects in the Common Law. Thus was created the important remedy of injunction, a command not to do some improper act; and the similar remedy of mandamus, which positively directs some act to be done. Equitable Rights. It has been seen that certain, but not all, wrongs were recognized by the Common Law as torts. In a similar way certain specific, but legally incomplete, rights were found to be worthy and capable of protection. These rights or interests did not rest on a complete legal title, so that the Common Law failed to reach them; some of these were connected with trusts. They came to be recognized as “equitable rights.” System of Equity Jurisprudence. The two important functions of Equity are the recognition of titles and of rights not known to the Common Law, and the application of remedies not provided by the Common Law. Under the system of Equity jurisprudence which has grown up, certain rights are recognized which are outside the sphere of action of a court of Law; certain offences are especially recognized as justifying jurisdiction by a court of Equity; and in many cases the relief granted by a court of Law is so inadequate that the court of Equity is sought because it has power to grant relief in forms not exercised by courts of Law. It is not often that a court of Equity will take action contrary to that which a court of Law would take in the same case. It is largely true that any specific wrong must seek its appropriate remedy in one court or the other, but usually without any choice as to which it shall be. Flexibility of Remedies. Among the features which mark the difference between Law and Equity, the greater flexibility in the remedy is probably of the greatest importance; specific performance of contract, and injunction to prevent wrong or require right action, are particular examples. While a case at Common Law is a two-sided controversy, Equity takes care of cases where there are numerous parties, each with distinct interests. The award of a court of Equity is in the form of a decree directing what shall be done, not always by one of the parties, but often by his opponent also, or by several when many interests are involved. There is thus afforded opportunity for a more even balance of justice than in a court of Law where there is simply an award either of money or of specific property to one or the other of the two parties to the controversy. Procedure. The procedure in Equity differs materially from that at Common Law. In Equity the statement of the plaintiff's cause of action, which is called a “bill,” is filed in court, and thereupon a subpoena is issued for the defendant to appear and answer. The defendant puts in an “answer" which is sometimes under oath, and such an answer under oath is taken to be true to an extent such that if disputed, it can be overcome only by the testimony of two witnesses, or of one witness and corroborating circumstances. Evidence. The rules of evidence in Equity are the same as in Law, but the method of taking it is different; in Equity it is reduced to writing, and forms a part of the record of the case. The function of evidence, however, is different in the two cases; in Law, evidence is directly the means by which a jury determines the issues raised in the pleadings; in Equity it is the machinery by which the facts in the case are brought before the judge, whose duty it is, in Equity procedure, to determine the facts. Juries Sometimes Used. In some cases issues of fact are framed by consent of the court, to be determined by a jury. Whether a jury is used to find such issues of fact is not a matter of right but is within the discretion of the judge. Where a jury is not used the probability of unwise or unfair action is lessened since it is confined to errors of the judge, and these, if made, are more readily corrected if an appeal is made to a higher court for review.

Engineers’ Relations to Pleadings. It is perhaps more important in Equity than in Law that the evidence available should be known to the lawyer who draws up the papers either for the plaintiff or the defendant; the drawing of the papers, the pleadings, is a more critical matter in Equity than in Law, and it is important that the engineer should read these papers carefully and ask questions if need be, certainly before he signs or swears to them, not only as to facts asserted but also as to whether the remedy asked for is as complete and adequate as it should be. Any intelligent man may in that way be a valuable check upon almost any lawyer.

EQUITY JURISDICTION

Essentials of Jurisdiction. In order that a suit may be brought in a court of Equity rather than, as commonly phrased, a court of Law, it is essential that there shall be no adequate remedy at Common Law. Either the Law remedy fails to effect a full measure of justice, or the rights or titles involved are not recognized at Law. The latter condition occurs in the case of trusts, where the substantial interest lies with one party while the title rests in another; and the same is true with mortgages. In the former class are contracts; if an award in money is an adequate remedy, a court of Equity will not interfere; where “specific performance ’’ of the contract is necessary to secure justice, a court of Equity only may assume jurisdiction. Similarly with torts, if an award in money will not effect a reasonable remedy, a court of Equity may assume jurisdiction and issue an injunction to put a stop to, or prevent the beginning of an injury; this is true as to fraud, trespass, and nuisance. When there are diverse interests involved, one of which must suffer if a Law remedy is followed, a court of Equity will sometimes appoint a receiver in an effort to protect the various interests.

Multiplicity of Suits. Resort is also had to a court of Equity in order to avoid a multiplicity of suits, which may result either from an offence recurring or from an offence in which a number of persons are involved, whether as plaintiffs or defendants. While the courts in some cases seem jealous of their rights and refuse to allow agreements to be made to dispense with a court trial, and thus “oust the jurisdiction of the court,” in this case protection is given against an undue amount of litigation. The law in both cases seems wise and just.

Kind of Right to be Remedied. In order that Equity jurisdiction shall apply, the right must be one of which municipal law takes cognizance, and not merely moral law. Not only will Equity not afford relief where there has always been a full, adequate, and complete remedy at Law; but it also will not give a remedy in direct contravention of Common Law.

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