To make one liable
in equity, his act must proximately
have caused injury of which plaintiff
complains. Irving Trust Co. v. Deutsch,
2 F.Supp.971 (1932). There is no rule
in equity that "once a fiduciary
always a fiduciary." Irving Trust
Co. v. Deutsch, 2 F.Supp. 971 (1932).
[Emphasis added - Mark's question
- how then can Equity be used in "no-fault"
divorce if there is no injury?]
It is true that the separation of
common law from equity jurisdiction
is peculiar to Great Britain; no other
of the states of the old world having
adopted it. But it is equally true
that in no other of the states of
the old world did trial by jury constitute
a part of their jurisprudence, and
every practical lawyer knows that
to give jurisdiction to a court of
equity, or to distinguish a case of
equity jurisdiction from one of common
law under the British practice, the
averment is indispensable that the
complainant is remediless at law.
When it is said that the separation
of common law from equity jurisdiction
is peculiar to Great Britain, it must
only be understood that it is there
exercised by distinct courts and under
distinct forms. For, as an essential
branch or exercise of judicial power,
it is acknowledged to exist everywhere;
nor is it possible for anyone acquainted
with its nature and character, and
the remedies it affords for the assertion
of rights or the punishment of wrongs,
to doubt that the power to exercise
it, and the means of exercising it
must exist some where, or the administration
of justice will be embarrassed if
not incomplete. To administer it through
the ordinary powers of a common law
court is impracticable; and hence,
wherever there exists no provision
in the jurisprudence of a country
for its full exercise, the consequence
must ever be that after the common
law court have ingrafted into their
practice as much as can be there assumed,
the Legislature is compelled to exercise
the rest; or else leave a large space
for the appropriate field of judicial
action unoccupied. Livingston v. Moore,
7 Pet. 469, 547-548 (1833). at law.
This suit was predicated entirely
upon a purely legal right. It nowhere
sets up or discloses a case for equitable
relief. He does not seek to set aside
his contract or the charter issued
in pursuance to his agreements. He
does not offer to pay off any of his
indebtedness, or the monies he had
secured by deed of trust upon the
identical property in process of foreclosure
at the very time he secured the delay
and extension by these new agreements.
He stands strictly upon a legal alleged
right to recover damages for an alleged
conversion or the recovery of this
property, and as he has pleaded this
case, so we must consider it, for
we cannot go beyond that. Shall we
apply the familiar maxim here and
say, "As you have bound yourself,
so must you stand bound"? * *
* Parties must come into court with
clean hands, and in seeking equitable
relief should do, offer to do, equity.
Appellants sue on a strictly legal
claim, sounding in damages for an
alleged tort, and in the alternative
for the possession of the property,
and nowhere recognizes his indebtedness
of offers to do equity, or indicates
his willingness to discharge the same.
Trott v. Plato, 244 S.W. 1085, 1087,
1089 (1922). [ Emphasis added]
Equity Acts
in Personam.
The early English
chancellors, in the development of
the notion that equity acts on and
effects merely the consciences of
those against whom its aid is sought
in the enforcement or protection of
rights, laid down the maxim, that
equity acts in personam against the
parties, and not in rem upon the subject-matter,
or, as it was expressed in the legal
nomenclature of the day, equitas agit
in personam. 10 R.C.L., Equity, §
137, p. 387 (1915).
"[E]quity acts
in personam ("against the person"),
while the law acts only in rem ("against
the property"). Thomas Conyngton
& Louis O. Bergh, Business Law,
4th ed. (The Ronald Press Company,
1949), p. 10. "One of the distinguishing
features between the civil law of
Rome and the common law of England
is that the civil law acted personally,
while the common law acts territorially."
Jones v. Hines, 47 So. 739, 157 Ala.642,
15A C.J.S., Common Law, § 1.
Rights in rem are
the subject-matter of the law of property,
rights in personam of the law of obligations.
* * * Rights in rem are the province
of the law of property, rights in
personam of the law of obligations.
Barry Nicholas, Roman Law (Oxford
Univerity Press, 1962), pp. 101, 158.
". . . Chancery acts in personam
by means of the subpoena [summons],
and this is its charactertic mark.
* * * Throughout the several departments
of jurisdiction runs the common principle
that the Chancellor addresses himself
directly to the conscience of the
individual, acting in personam by
means of the subpoena and being therefore
independent of territorial limits
of jurisdiction." Sir Carleton
Kemp Allen, Law in the Making, 7th
ed. (Oxford University Press, 1964),
pp. 408, 413
Selected
custody cites:
-
De Manneville
v. De Manneville, 10 Ves. 51,
60 (1804) showed in England, courts
of Chancery’s could not use parens
patriae or their powers of equity
against the "legal, natural,
right of the father to have the
custody of the person of his child.
Fathers had a ‘natural right’
to their children that neither
the state nor mother could intervene.
Also see Rex v. De Manneville,
(1804).
-
Angel v. Mclellan,
16 Mass. 28 (1819) the SJC calls
on both the Common Law and “laws
of nature” in determining family
law issues, not equity. (“By the
common law, parents are bound
to maintain their children during
minority…” and “This principle,
which is founded in the law of
nature, has received the sanction
of repeated judicial decisions;”)
-
Commonwealth
v. Briggs, 33 Mass. 203, (1834)
which shows the Common Law being
applied to natural rights with
regard to the parent-child relationship.
As per De Manneville, supra, the
father had a natural right to
his children which the state had
to enforce and only question when
the reciprocal right of caring
for the child was violated.
-
The King v. Greenhill,
4 Ad. & E., 624 (1836),
again provides that the father
has title to the custody of the
children.
-
Lord Talfourd's
Act (An Act to amend the Law relating
to the Custody of Infants, 2 &
3 Vict. (1839), c. 54 (U.K.)),
AKA the “Tender Years” doctrine
permitted the mother, if not guilty
of adultery, to limited custody
of the children during their tender
years. A natural law argument
that nature would not rip a child
of tender years from its mother’s
breast permitted the intrusion
of the father’s natural right
only if the mother was not guilty
of the crime of adultery.
-
Mercein v. Barry,
25 Wend. 64 (1840) the American
courts did not like being bound
down by strict rules of Common
Law that required the court to
give the child back to the father
in every case and repeatedly called
upon the law of nature to justify
adopting the “Tender Years” doctrine,
a rude and foreign alteration
of the natural law, specifically:
-
“The law
of nature has given to her
an attachment for her infant
offspring which no other relative
will be likely to possess
in an equal degree. And where
no sufficient reasons exist
for depriving her of the care
and nurture of her child,
it would not be a proper exercise
of discretion in any court
to violate the law of nature
in this respect”
-
Custody was still
a Common Law determination, just
with a different natural law justification.
-
Bigelow v. Bigelow,
120 Mass. 320 (1876) shows that
by violating his natural law obligations,
the state can inflict punishment
on a father who abandons his wife
and children when the wife demands
remedy. Although used to
show that the right to a jury
trial does not exist, it makes
this claim only "when a wife
is living apart from her husband,
for justifiable cause."
-
Baldwin v. Foster,
138 Mass. 449 (1885) shows that
a father who is separated from
his child through no fault of
his own is not liable for child
support and as the innocent party
is entitled to custody.
Also shows a right to a jury trial
over child support amounts.
Again, a Common Law right to custody
and for determination of child
support obligations, not equity.
-
Foss v. Hartwell,
168 Mass 66 (1897) right to trial
by jury over disputed child support
amounts.
-
Bucknam v. Bucknam,
176 Mass. 229 (1900), As is clearly
stated in Bucknam, “Under the
provisions of law prior to the
adoption of the Constitution,
all cases of marriage, divorce,
and alimony”, NO MENTION OF CHILD
SUPPORT. It further states
that awards of alimony were based
on “account of the misconduct
and neglect of” the guilty party,
never applied to the ‘innocent
party’.
-
Purington v.
Jamrock, 195 Mass. 187, (1907)
shows that the Common Law “Best
Interest” could only be exercised
by the state when the state overcame
the parent’s right of property
and hence the state owned the
children.
-
Ex parte G.C.,
Jr. (In re: G.C., Jr. v. E.B.
and D.B.), 1040001, Supreme Court
of Alabama, 2005 Ala., stated
that "Children are a gift
from God. They need and deserve
the love and support of both their
mothers and their fathers. Parents
have God-given rights concerning
their children, which are and
should be protected by state government.”
This state, under its social compact,
should protect that God given
relationship, not intervene to
arbitrarily punish one parent.
To many quotes from
this case to pass along in this email
but read about the Common Law verses
Equity court's right to custody determinations.
|
