IS8 UNIVERSITY OF COLORADO STUDIES 



of men. Blackstone, referring to the action of trespass on the case, 

 says that this "provision (with a little accuracy in the clerks of 

 Chancery, and a little liberality in the judges, by extending rather 

 than narrowing the remedial effects of the writ) might have effectually 

 answered all the purposes of a court of equity; except that of obtain- 

 ing a discovery by the oath of the defendant.'" Nor is there wanting 

 a more modern witness. Austin says, characteristically, that " Equity 

 arose from the sulkiness and obstinacy of the common-law courts, 

 which refused to suit themselves to the changes which took place in the 

 opinion and in the circumstances of society." Nor yet one other more 

 ancient and grave: Fairfax, a very learned judge of the time of 

 Edward IV, was of the opinion that the subpoena (in chancery) would 

 not have been half so much in use if the common-law judges had been 

 alert and "maintained" their jurisdiction.^ 



There were other common-law writs besides that of Case which 

 performed the function of a bill in equity. Such was the writ of 

 Ne injuste vexes, for example, which restrained a grasping landlord 

 from distressing his tenant; the writ of Curia claudenda, which com- 

 pelled an adjoiner to put up and keep up his part of a line fence; and 

 the more familiar writ of Estrepment for the prevention of waste. 

 These writs, it will be observed, were personal and coercive rather 

 than compensatory or in rem; and their history appears to justify 

 Blackstone's strictures. Suppose, in the case of the last-mentioned, 

 the judges had extended its remedial function to the protection of 

 shade and ornamental trees, as, it seems, they might, instead of 

 narrowing it for the preservation of timber trees alone, as in fact they 

 did — would not some fish been spared the chancery net ? These 

 digressions need not be pursued; but in this connection it perhaps 

 remains to be said that if the only equity quality lacking in these 

 common-law writs was their power to compel a discovery, as inti- 

 mated by the great EngUsh commentator, then one line of statute law 

 could have added that power, unless, indeed, some judge had been 

 previously found to screw his courage to the sticking point. Then in 

 due time would the age-long controversy between law and equity 



1 3 Bl. Com. p. 5X. * 2 Chitty, BL p. 43, note citing Y.B. 31 Edw. IV p. 33. 



