32 A.2d 605 | N.H. | 1943
Lead Opinion
The question whether the issues should be consolidated was for the court, and no reason appears why his decision in that respect should be overruled. Genest v. Company,
Some confusion has arisen because of the fact that both law and equity take jurisdiction over issues of fraud. The plaintiff referred in argument to the phrase used by counsel in Hoitt v. Holcomb,
Yet to speak of equity and law having concurrent jurisdiction over fraud may be quite misleading. In connection with defences grounded on fraud, its use may be precise enough. Usually, as applied to defences, the two jurisdictions are concurrent. The real test of the question of jurisdiction is the capacity in which the court acts upon an issue. Since our courts act both at law and in equity, there is room for confusion in this regard, unless there be careful consideration of the nature of the relief sought. The nature of the relief is the key to the jurisdiction.
It does not help to declare the substantive law that fraud vitiates contract. That substantive law is identical in both law and equity, but the jurisdictional question is not thereby answered. It is clear enough that where the execution of a release is denied by the plaintiff, a court of law has jurisdiction. But where the execution of an instrument is admitted, but sought to be avoided for fraud, it is equally clear that the vitiating of the contract, except as a matter of defence to an action on it, belongs to equity. It is not enough to say that fraud vitiates a contract at both law and equity. That is true, but it does not follow, as has too often and too easily been concluded, that in all situations the jurisdictions are concurrent.
Relief sought from a contract or an instrument induced by fraud will belong to equity or to law in accordance with its nature. If a plaintiff has been deprived of money or chattels by a contract fraudulently procured, he may rescind the contract and recover in an *416
action at law his money or his chattels; or he may bring an action of deceit at common law and recover money damages. But if he wishes the cancellation of the instrument and restoration to his original position, or if he desires to have the instrument reformed, he has no remedy at law and must proceed in equity. Pomeroy, Equity Jurisprudence (5th ed.), s. 872. The rule thus announced is the rule concerning fraud, just as it was declared in McIsaac v. McMurray,
With these principles in mind, confusion may be avoided. The plaintiff has sued the defendant for damages at law. The defendant has pleaded an election by the plaintiff which is a complete bar on its face to the prosecution of the plaintiff's action. The plaintiff has filed a "replication" asserting that he executed a written election which is invalid because obtained by the defendant's fraud. Though called by a common-law name his "replication" is in substance something else. It is not a defence, legal or equitable, to an action brought by the defendant. The plaintiff does not seek defensive relief at all; he is seeking affirmative relief by way of cancellation, which he cannot have at law, and may have only in equity. Until the instrument is cancelled, he has no right at law. The law leaves him where his signature left him, without any affirmative relief except in equity. We are dealing with no defence, but with an affirmative claim that is preliminary to such legal rights as the plaintiff may have.
The rulings below did not deprive the plaintiff of the right to trial by jury of legal issues, as was the case in Baird v. Company,
For many years it has been well settled here that in equity there is no constitutional right to trial by jury. That question needs no examination anew except for the fact that our older cases have in some degree misconceived our equity practice prior to the Revolution. In the end the misconceptions have resulted in no serious *417
error, but it may be well enough to dispel some that have come to light during research into colonial practice. For example, it is not true, as suggested in Wells v. Pierce,
During that union a statute made a clear provision in connection with the subject of trial by jury that "if there be matter of apparent equity, as the forfeiture of an obligation, breach of Covenant without damage, or the like, the Bench shall determine such matters of equity." Colonial Laws of Massachusetts, 1660 (1889 ed.), 167.
The practice without jury is clear. Cutt v. Rawlins, 2 Province Deeds, 185 (County Court, 1672); Petition of David Cambell, 1 Court Papers, 633; Leavitt v. Dearing, 2 Court Papers, 343 (Court of Associates, 1673). The practice in equity without jury continued after New Hampshire became a royal province, whether under the Curt Commission (Scammon v. Jones, 5 Court Papers, 335), or under Cranfield (Martin v. Waldron, 8 Court Papers, 51; Barefoot v. Wadley, 1 Province Papers, 469), or under Governor Allen (Young v. Gilman, 10 Court Papers, 93, 94).
There is no foundation for the supposition in Wells v. Pierce,
Frequently during the period from 1699, the common-law courts exercised chancery jurisdiction, just as they had done from 1641 to 1679. Two typical cases will suffice. In 1760, Libbey v. Waldron *418
came up in the Superior Court on a writ of review. It was an action on a bond for 500 pounds. The jury returned a verdict of forfeiture, which at common law would mean a judgment for 500 pounds unless the court gave affirmative relief in equity. The court chancered the bond and gave judgment for slightly more than one-tenth of the penal sum. Superior Court Judgments, D, 66. The other case, Cunningham v. Holland, in 1766, involved a bond for 200 pounds. According to the record "the Court are of opinion, that there is due" 131 pounds 15 shillings. They added an order for further affirmative relief by the release of a mortgage given to secure the bond. Superior Court Judgments, E, 381. Never is there a suggestion that an equitable issue was submitted to a jury. Just as during the seventeenth century, denial of trial by jury in equity was the rule during all the subsequent colonial period. Such issues as were submitted to the jury after the adoption of the Constitution were either framed in the discretion of the court for the enlightenment of the judges' consciences or under such a total misapprehension of colonial practice as once misled this court (Marston v. Brackett,
The unsupported supposition in Marston v. Brackett was seriously doubted, upon better information of our legal history, but with still too little knowledge of it, in Wells v. Pierce, supra, and Copp v. Henniker,
The truth is that during our pre-constitutional period there is no trace of trial by jury of equitable issues, but every evidence that it was always denied, and that except for the brief period 1682 to 1699 we never had separate courts of chancery. At all other colonial periods, equity practice was in the common-law courts, as now, and even when there was a court of chancery, the common-law Court of Common Pleas undertook in one instance to exercise equity jurisdiction. Barefoot v. Wadley, supra.
Exceptions overruled.
ALLEN, C. J. and MARBLE, J., dissented: the others concurred. *419
ON MOTION FOR REHEARING. After the foregoing opinion was filed the plaintiff moved for a rehearing.
Addendum
Besides the claim of fraud in obtaining the release, the plaintiff's replication pleads that "the plaintiff was mentally and physically incapable of executing the alleged election with understanding." If this claim be substantiated, the election and release never had any reality at all, since there was no meeting of minds.
The issue thus raised, being an issue as to the existence of a release and not one relating to equitable relief from an existent release, is for the jury.
The order of procedure is for the trial justice to determine in the exercise of a sound discretion. If on the equitable issue of relief from fraud, he makes a decree in favor of the plaintiff, the next step will be a trial by jury of the action at law on the merits. If he decides the equitable issue in favor of the defendant, he will still in discretion have to determine whether undue prejudice will result from submitting to the jury at a single hearing the issue of incompetency and the issues on the merits. In other respects the former result is affirmed.
Motion denied.
ALLEN, C. J., and MARBLE, J., dissented, except in respect to a jury trial of the issue of incompetency; the others concurred.