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ON

EQUITABLE RELIEF

AGAINST TORTS.

BY

ZECHARIAH CHAFEE, JR.

PROFESSOR OF LAW IN HARVARD UNIVERSITY

LANGDELL HALL, CAMBRIDGE
PUBLISHED BY THE EDITOR

1924

COPYRIGHT, 1923, 1924,
By ZECHARIAH CHAFEE, JR.

PRINTED IN THE U.S.A.

PREFACE

This collection of cases has been edited primarily for students who have already mastered the main principles of Equity Jurisdiction and the Specific Performance of Contracts, e.g., from the first two chapters of Ames's first volume of Cases in Equity Jurisdiction. It is entirely practicable, however, to use this book for the introductory study of Equity if the more difficult cases be omitted. In any event, some selection among the cases will probably be found desirable, for more material has intentionally been included than can well be covered in the thirty lectures ordinarily available for the study of Equitable Relief against Torts. The editor's own practice has been to concentrate upon different topics in successive years of teaching, thus gaining the pleasure of working fresh fields as time goes on.

Cases on Equitable Relief against Defamation and Injuries to Personality have been omitted, since they are included in Dean Pound's collection of cases on that topic. The editor is accustomed to take up that collection after the class has finished with the present material, but if desired it can be studied after the first chapter of this book so that the various specific torts are considered together before the general principles common to them all.

The generosity of Mr. Richard Ames and the other members of the family of the late Dean Ames has placed at the disposal of the editor the material on Specific Reparation and Prevention of Torts in Ames's Cases in Equity Jurisdiction. Many of the cases selected by Dean Ames have been included in this collection, and several passages from his foot-notes. The latter have been indicated by “ Ames.” It has been sought in this way to present his opinions upon the various problems of the subject, whenever he expressed them in his foot-notes. Although the multiplication of later cases and the existence of digests and encyclopaedias has led to the omission of his exhaustive citation of authorities, references to such foot-notes have been frequently inserted, so that they may be easily consulted; the mention of " Ames " in such references means the first volume of Ames's Cases in Equity Jurisdiction. These specific references, however, are a very inadequate expression of the editor's indebtedness to the teacher from whom he has gained so much, although never privileged to know him or study under his guidance.

Experience in teaching Equitable Relief against Torts from Dean Ames's book has led to the conviction that his division of the subject into specific torts should be replaced by a different classification, in which each fundamental equitable problem, such as the establishment of the tort by a jury trial, “ the balance of convenience," laches," unclean hands,” etc., should be presented as a unit, regardless of the kind of tort involved in the particular case which illustrates the problem. This conviction was strengthened when inquiry among other teachers of the subject showed that several had reached a similar conclusion. The cases in this book, except in the first and fifth chapters, have been grouped accordingly, by general equitable principles and not by specific torts.

Although various kinds of torts have been drawn upon indiscriminately to illustrate the main equitable principles, some attention must be paid to the fact that Chancery did not assume jurisdiction over them all simultaneously, and that each tort in the course of its development in Equity exhibited certain specific peculiarities of treatment, e.g., equitable waste. which render some separate study desirable. The first chapter is arranged for this purpose. Again, the protection of social and public interests raises special difficulties, which has led to its inclusion in a separate chapter toward the close of the book.

The arguments of counsel have usually been omitted. The opinions of judges have been reprinted in full unless omissions are indicated, with the

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