Equity. The law of equity and the Court Of Chancery grew out of the Norman Kings’ Council as did the common law. Under the Normans the chancellor was the most powerful executive officer of the king and the chief law member of the King’s Council. He not only issued writs which permitted an aggrieved person to bring an action in a common-law court, but he himself, as a personal representative of the king, heard pleas which the common-law courts were unable to handle. Procedure, too, at least in the early period, was more flexible in chancery. So a separate body of law, equity, with a separate court, the Court of Chancery, gradually developed.
Equity had precedence over the common law because its degrees applied to the person of the defendant and disobedience to a decree was a contempt of court.
The remedies in equity were also more flexible. While a judgment of a law court was limited to money damages or recovery of property, courts of equity, for example, would grant an injunction (a decree forbidding the defendant to do some act, even a prohibition against pursuing a cause of action in a common-law court), specific performance (ordering the defendant to perform his contract), reformation (rewriting a contact or instrument to conform to the actual intent of the parties), or partition (to divide disputed property). It might be said that the common-law court emphasized form, while the chancery courts were more interested in the merits of the case and the justice of the decision. Another distinction was that juries were not used in equity.
Although some states still have separate courts of chancery, in most of the states the same judges sit, often at separate periods, both as law judges and chancellors. In most states and in the federal courts the distinction between law and equity has been all but eliminated. (BUSINESS LAW: PRINCIPLES AND CASES, 1978 FOURTH UCC EDITION, LUSK, HEWITT, DONNEL and BARNES, pages 12-13.)
Quasi Contracts Historical development. During the early formative period of the common law, the courts tended to stress stability and continuity in the principals of law being developed. It will be recalled that the inflexibility of common law rules was a principal factor behind the development of courts of equity. Even after courts of equity developed, however, there were special fact situations not adequately covered by existing rules.
For example if Able through an honest mistake conferred a benefit on Baker under circumstances where Baker knowingly received the benefit, Able had no remedy in either contact or tort law. To preserve the general consistency of the existing rules and yet to avoid the resulting injustice, the common law judges resorted to a fiction: they held that a promise had been made or was implied in law. These obligations based on promises implied in law are known as “quasi contracts.” (BUSINESS LAW: PRINCIPLES AND CASES, 1978 FOURTH UCC EDITION, LUSK, HEWITT, DONNEL and BARNES, page 93.)
quasi contract. An obligation arising not from an agreement between the parties but from the voluntary act of one of them or some relation between them which will be enforced by a court. (BUSINESS LAW: PRINCIPLES AND CASES, 1978 FOURTH UCC EDITION, LUSK, HEWITT, DONNEL and BARNES, page 1343.)
Stengel, Justice. A quasi contract, or contract implied in law, is one which reason and justice dictate and is founded on the equitable doctrine of unjust enrichment. A contact implied in law does not depend on the intention of the parties, but exists where there is a plain duty and a consideration. The essential element is the receipt of a benefit by one party under circumstances where it would be inequitable to retain that benefit without compensation. (BUSINESS LAW: PRINCIPLES AND CASES, 1978 FOURTH UCC EDITION, LUSK, HEWITT, DONNEL and BARNES, page 95.)
"Equity is rooted in conscience. An injunction is, as it always has been,'an extraordinary remedial process, which is granted, not as a matter of right, but in the exercise of a sound judicial discretion.'" Morrisonv.Work, 266 U.S. 481, 490, 45 S.Ct. 149, 153, 69 L.Ed. 394. Justice Frankfurter concurring in Hurd v. Hodge, 68 S.Ct. 847, 853, 334 U.S.24, 36 (1948)."
An implied contract is one which the promise or promises are not stated in direct words but are gathered by necessary implication or deduction from the circumstances, the general language, or the conduct of the parties. (BUSINESS LAW: PRINCIPLES AND CASES, 1978 FOURTH UCC EDITION, LUSK, HEWITT, DONNEL and BARNES, page 93.)
In 1758 Lord Mansfield summarily described the equity of a statute as 'synonymous to the meaning of the legislator'." (R. V. Williams, 1 W.Bl. 95.) Sir Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford University Press, 1964), p. 455-456 and n. 1.
"The power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States as manifested in the Constitution, treaties, federal statutes, and applicable legal precedents. Where enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertion of judicial power." Hurd v. Hodge, 68 S.Ct. 847, 853, 334 U.S. 24, 34-35 (1948).
[Q]uoted from West's Symboleography, Equity is here described as a 'ruled kind of justice'. Sir Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford University Press, 1964) p. 409-410.
In its beginning, equity was what its name implies, and to a considerable extent it still is: "justice" as opposed to "law," a reach for fairness in the particular case as distinguished from enforcement of general rules. Charles Rembar, The Law of the Land: The Evolution of Our Legal System (Touchstone Books, 1980), p. 280.
"His argument is that as the law stood under the Constitution prior to the Code equity refused an injunction until the issue of title had been settled at law by jury trial, and therefore the trial of that issue comes within the constitutional provision preserving trial by jury. On the otherhand, all that the Constitution preserves is trial by jury as it existed in 1789 when the Constitution was adopted. At that time no relief in equity of any kind had developed in trespass cases." William Walsh, A Treatise on Equity (Callaghan and Company, 1930), p. 166.
Statutable, or Statutory. That which is introduced or governed by statute law, as opposed to the common law or equity. Thus, a court is said to have statutory jurisdiction when jurisdiction is given to it in certain matters by act of the legislature. Black's Law Dict., 4th ed. 1951.
Writ System. Jurisdiction of the common law courts was limited severely by a writ system. A civil action lay before one of the courts where a specific writ was available from a high official ("where there was no writ, there is no right"). Mary Ann Glendon, Michael W. Gordon & Christopher Osakwe, Comparative Legal Traditions (Nutshell Series), (West Publ.,1982), p. 147."Sir Bartholomew Shower, for the defendant, giving a new twist to an old word, put a simple but incisive question. 'How can here be any privity or assent implied, when a fine is imposed on a man against his will?'" C.H.S. Fifoot, M.A., History and Sources of the Common Law: Tort and Contract (London: Stevens & Sons Limited, 1949), p. 364.
"Chancery's method of enforcing her decrees by compelling the defendant to obey them under penalty of imprisonment was, no doubt, originally borrowed from the canon law." William Walsh, A Treatise on Equity (Callaghan and Company, 1930), p. 44.
Equity. Forms of actions developed a rigid inflexibility by the early 15th century. A plaintiff unable to obtain a proper writ was left with no remedy. John Austin said that English equity "arose from the sulkiness and obstinacy of the common law courts, which refused to suit themselves to the changes which took place in opinion, and in the circumstances of society." However obstinate it may have been, the common law was not rigid; it accepted new institutions. To counter the severity of the writ system and provide relief other money damages, the king and later his Chancellor, the "keeper of the king's conscience," accepted petitions for equitable relief. Heard in an inquisitorial fashion modeled on canon and Roman law, these equitable proceedings focused on avoiding the strictures of the common law. It was successful, and a formal Court of Chancery soon assumed jurisdiction of pleas in equity.
If the addition of such equitable concepts as injunctive relief and specific performance to supplement the common law was equity's paramount general contribution, the origin of the trust was its most important conceptual addition. The common law did not recognize an interest in a party who was not the titleholder to land. The transfer of property to a party to hold either for benefit of the grantor, who may have been trying to avoid feudal obligations, or a third party, did not create legal rights enforceable by beneficiaries. The Court of Chancery, acting to fill this acknowledged void in the common law by using its powers to demand good conscience, would rule that the holder of the property must administer it for the benefit of the donor or third party, as specified in the initial grant. From this concept arose an equitable interest held by the beneficiary, the person in possession assuming the status of a trustee obligated to deal with the property considering the nature of the equitable interest of the third party.
The discretion exercised by the early Chancellors--John Seldon remarked that equity varied "according to the length of the Chancellor's foot"--by the 18th century had evolved its own procedural rules, paradoxically as rigid as those which equity had been created to avoid. Mary Ann Glendon, Michael W. Gordon & Christopher Osakwe, Comparative Legal Traditions (Nutshell Series), (West Publ., 1982), pp. 150-151.
jurisdiction clause.
That essential clause in a bill in equity upon which the complainant bases his claim of the jurisdiction of the court in which the suit is brought. Ballentine's Law Dict., 2 ed., 1948.
bill in equity.
The mythical creation of the law, called a quasi contract, was adopted for the purpose of enforcing a legal duty by an action in form ex contractu, but in reality in the nature of a bill in equity. Schaeffer v. Miller, 41 Mont. 417, 109 Pac. 970, 137 A. S.R. 746. 2 R.C.L. 749 (1914).
bill in equity.
A petition for relief addresed to a court of equity and filed therein by the party seeking relief and stating the facts on which the claim for relief is based. The ordinary bill is brought by aprivate party having a private interest to assert or protect. Ballentine's Law Dict., 2nd ed. 1948.assignment of contracts. Procedure.
(1) At Common Law, an assignee of a chose in action could enforce the assignment at law only by suing in the name of the assignor, since the assignor was the legal owner of the contract right thus assigned. Where an assignor refused to permit his assignee to sue in the name of the assignor, the assignee had to bring a bill in equity. But where the assignee could sue in a court of law; or where, as in Carter & Moore v. The United Insurance Co., 1815, 1 Johnson's Chancery (N.Y.) 463, he brought a billin equity without alleging that his assignor refused to permit him to sue at law in the assignor's name; the old rules denied equitable relief and remitted the assignee to his action at law. Bankruptcy of the assignor did not terminate the assignee's right to enforce the claim in the assignor's name (Winch v. Keeley, 1787, 1 T. R. (Eng.) 619.) Any assignor could demand secuitry against the costs of the suit proposed to be brought in his name, but he could not, by collusion with debtor, dismiss the suit to his assignee's prejudice. (Welch v. Mandeville, 1816, 1 Wheaton (U.S.)233.) [Williston's Treatise on Contracts, 3rd ed., §§ 408, 446].
(2) Statutes now usually allow or require the assignee as the "real party in interest" to sue in his own name. See, for example, New York Civil Practice Law and Rules, § 1004. Paul R. Conway, Outline of the Law of Contracts, 3rd ed. (American Legal Publications, Inc., 1968), pp.329-340. (Original emphasis.)partial assignments.
(A)AT LAW, A partial assignee cannot sue at law because a court of law cannot deal with more than one plaintiff and one defendant, and to allow every partial assignee to sue the obligor separately would be to harass the obligor unfairly by a multitude of suits. He contracted to pay one person, not half a dozen, and this contract will not be changed so as to work a mayerial hardship upon him [R.II, § 158; Williston's Treatise on Contracts, 3rd ed., §§ 441-443].
(B) IN EQUITY. Equity, however, gives relief to a partial assignee. This it can do because of its flexible machinery and procedure for joining as many persons as necessary and settling the rights of all in one suit. [R.II, § 158; Williston's Treatise on Contracts, 3rd ed., §§ 441-443].
(C) UNDER MODERN CODES blending legal and equitable remedies or making equitable defenses and rights available in an action at law, a partial assignee can recover, but the obligor (debtor) is invariably allowed to insist that all the persons having an interest in the claim or debt be made parties to the action so that all claims against him may be adjudicated in one action. If the obligor fails so to insist, most codes provide that he thereby waives his right to object to the defect of parties. See N.Y. Civil Practice Law and Rules, § 1001a, for example. [R.II, § 158; Williston's Treatise on Contracts, 3rd ed., § 443]. Paul R. Conway, Outline of the Law of Contracts, 3rd ed. (American Legal Publications, Inc., 1968), pp. 363-364. (Original emphasis.)
equitable right.
A right which can only be enforced in a court of equity under equitable rules or in the manner which is provided by statute. See Estate of Folwell, 68 N.J.Eq. 728, 2 L.R.A.(N.S.) 1193, 1195, 62 Atl.Rep. 414. Ballentine's Law Dict., 2nd ed. 1948. equitas agit in personam. Equity acts against the person. Ballentine's Law Dict., 2nd ed. 1948.
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
civil law.
The right to take the examination of witnesses before an officer authorized for that purpose, with the view of perpetuating their testimony, was fully recognized and established by the civil law many centuries ago, and is still recognized in the English chancery, as a practice admissible, and, indeed, under certain circumstances, absolutely necessary for the protection and maintenance of the rights of parties. This practice is adopted in nearly, if not quite, every state in the Union. 8 R.C.L., Depositions, § 3, p. 1132 (1915).
United States v. Jin Fuey Moy, 241 U.S. 394, 402, 36 S.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854, points out that the Narcotic Law can be upheld only as a revenue measure. * * * Mere possession of the drug creates no presumption of guilt as against any other person. * * * Jin Fuey Moy's case clearly indicated that the statute must be strictly construed and not extended beyond the proper limits of a revenue measure. Linder v. United States, 45 S.Ct. 446, 449, 268 U.S. 5, 18, 19 (1925). Remedial statute. "A Remedial statute is one changing the common-law, that is, in derogation of the common-law." Frank Hall Childs, A Treatise on American Business Law, 3rd. ed., 6 vols. (Walton School of Commerce, 1923), vol. 1, p. 24.
Remedial. "And indeed, except in early times, Plowden's grand iloquent principles, crystallize, merely into a general doctrine of liberal and intelligent interpretation, having the double aspect that a 'remedial statute is to receive an 'equitable' interpretation, while a penal statute, or a statute in derogation of the Common Law, is to be construed strictly." (For the development of these rules, see S.E. Thorne, op. cit.) Sir Carleton Kemp Allen, Law in the Making, 7th ed. (Oxford University Press, 1964), p. 453.
Address. A bill in equity is a petition to the chancellor, or court exercising equity powers; and the address of the bill naturally contains the appropriate technical description of the court to which the application is made. 10 R.C.L., Equity, § 165, p. 412 (1915).
"In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." Moses v. Macferlan (1760) 2 Burrow, 1005. C.H.S. Fifoot, M.A., History and Sources of the Common Law: Tort and Contract, (London: Stevens & Sons Limited (1949), p. 366.
inherent jurisdiction (statutory jurisdiction).
The inherent jurisdiction and procedure of the high court of chancery of England as adopted as and for the jurisdiction of the chancery court of a state of the Union when the chancery court of the state was created.
This is what is called the"inherent jurisdiction" of the chancery court, and the jurisdiction which has been subsequently vested by the legislature is called the "statutory jurisdiction." (Gibson, Suits in Ch. § 23) See Kelly v. Conner, 122 Tenn. 339, 25 L.R.A.(N.S.) 201, 207, 123 S.W. Rep. 622. Ballentine's Law Dict., 2nd ed. 1948.
The equity jurisdiction of the courts of the United States is derived from the Constitution, is independent of the local law of any state, and is the same in nature and extent as the equity jurisdiction of England. Dodgev. Woolsey, 18 How. 331, 15 L.Ed. 401.
"A law which can be bent at discretion in order to make exceptions from its generality is not a law at all, but an arbitrary exercise of will. It is for this reason that, as we shall see, many systems of law have had recourse to a separte body of equitable or discretionary jurisdiction in order to make exceptions to the uniform operation of law. Equity in this wide and unrestricted sense is called equity for the very reason that it is not law; but, as we shall also see, with the passage of time this 'free', indefinite sense of equity disappears and in its place there grows up a code of rules just as 'inflexible' as those of law, so that in the result there are two complementary bodies of rules working together to mutual advantage." Sir Carleton Kemp Allen, Law in the Making, (Oxford University Press, 1964), p. 347. (original italics.)
"In equity, he [a person] is bound where he stands and does not give notice of his rights." 9 Mod.[ern Reports-Modern Cases at Law and Equity] 38;2 Eq.[uity] Abr.[idged] 489; 1 Brown's Rep. 353. Livingston v. Moore, 7Pet. 469, 522 (1833).
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).
Fiduciary obligation may be terminated, inter alia, by voluntary abdication of cestui, by frustration of subject-matter, and by inability of cestuito achieve his objective; and on such termination parties are left in status quo ante. Irving Trust Co. v. Deutsch, 2 F.Supp. 971 (1932).
Term "equitable claim" is not used in strict technical sense meaning claim involving consideration of principles of right and justice as administered by courts of equity but broader moral sense based upon general equitable considerations. Burkhardt v. United States (1949) 113 Ct. Cl 658, 84 FSupp 553; Adler Const. Co. V. United States 199 Ct. Cl 810.
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).
"It is a general rule that courts of equity deal only with vested property rights; hence they will not by injunction stay prosecution of criminal proceedings." High on Injunctions (3d Ed.) vol. 1, § 68; Chisholm v. Adams, 71 Tex. 678, 10 S.W. 336; City of Galveston v. Mistrot, 47 Tex.Civ. App. 63, 104 S.W. 417. "There is a well-recognized exception to this rule, to the effect that where the statute under which complainant is being prosecuted is unconstitutional, or for any other reason void, and the property rights which will result in an irreparable injury thereto, an injunction may be granted to restrain the commencement or continuance of criminal proceedings based on such statute." C.J. vol. 32, § 447.
"Equitable jurisdiction exists," says the Supreme Court of the United States in Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 258, 68 L.Ed.596, "to restrain criminal prosecution under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of rights of property." The reason for the limitation upon the powers of courts of equity to restrain officers from enforcing criminal statutes is well stated by the Circuit Court of Appeals in Arbuckle v. Blackburn,113 F. 616, 625, 51 C.C.A. 122, 65 L.R.A. 864, in the following excerpt from the opinion to hold otherwise "would be to subvert the administration of the criminal law, and deny the right of trial by jury, by substituting a court of equity to inquire into the commission of offenses where it would have no jurisdiction to punish the parties if found guilty." Courts of equity are not concerned with the enforcement of criminal laws. Courts of law are created for this purpose. Courts of equity are concerned only with the protection of civil property rights. Therefore, when a court of equity issues an injunction which operates to stay the hand of law enforcing officers, its primary purpose is not to enjoin the criminal proceedings.
That is merely incidental to the main ground upon which equity jurisdiction protects vested property rights from threatened and irreparable injury. Such jurisdiction is exercised solely with reference to the effect of the enforcement of a void law upon vested property rights. Under the well-established rules of equity jurisprudence, it is clear that the district judge was without authority to issue the writ of injunction to prevent the enforcement of the law regulating the operation of motor-trucks upon the highways of this state unless the petition for such injunction clearly showed the existence of two facts, viz.: First, that such law is unconstitutional and void; second, that its enforcement constitutes a direct invasion of a vested property right of the complainant. Ex parte Sterling, 53 S.W.2d 294, 295 (Tex. 1932).
237. Liability of a surety. It is the duty of the surety to seek out the creditor at maturity and see that the debt is paid. Surety and principal are jointly and severally liable to the creditor. The surety is therefore liable as soon as default is made, and no demand upon the principal debtor or notice of his default is necessary. This liability on the part of the surety is a continuing liability. Delay on the part of the creditor to enforce collection from the debtor will not release the surety. (BURGESS' COMMERCIAL LAW, BY KENNETH F. BURGESS AND JAMES A. LYONS, 1915, 1921 by LYONS & CARNAHAN)
Inherent right. The term is one which is used more accurately than the term “inalienable right” to denote the functional character of the rights of members in a unorganized state. Ballentine’s Law Dict., 2d ed. 1948.
A creative right is one which is conferred by statute as distinquished from one which stems from the common law. The nature of such a right, its quality and character, are dependent upon the statute creating it. The rule is well settled that where a statute creates a right, such as the one in this case, unknown to the common law and limits the time within which the right must be asserted, the limitations defines and controls the right and the right cease to exist if not asserted within the time fixed in the statute therefor.” Ewing v. Risher, 176 Fed. 2d 641, 644 (1949).
Inalienable rights are rights in rem. the natural or fundamental rights which belong to all men, as distinquished from the artificial rights or privileges of citizens and other classes of persons. These natural rights include the right to worship God according to the dictates of one’s conscience; the right to personal liberty and individual property; to freedom of speech and of the press; to free access to courts of justice; to due process of law; and to such other immunities as are indispensable to a free government. Ballentine’s Law Dict., 2nd ed. 1948.
“There are three general or fundamental rights, known as rights in rem, which a person holds against the whole community. The rights in rem include the right of personal security, the right of personal liberty, and the right of personal property.” Frank Hall Childs, a Treatise on American Bussiness Law, 3rd ed., 6 vols (Walton School of Commerce, 1923), vol. 1, p. 28.
Unalienable. The state of a thing which cannot be sold. 2. Things which are not in commerce, as public roads, are in their nature unalienable. Some things are unalienable, in consequence of particular provisions in law forbidding their sale or transfer, as pensions granted by the government. The unalienable. Bouvier’s Law Dict. 1856.
“Civil Rights Acts--how, construed. The Civil Rights Act [i.e., enforcement of foreign-created rights] is in Derogation of the common law and therefore should be strictly construed.” Grace v. Mosely, 112 Ill. App. 100 (1904).
Civil Benefit. Person taking the benefit of a civil right secured to him under our laws should pay a certain premium for its enjoyment, State v. Dalrymple, 70 Md. 294, 299, 17 Atl. 82. U.S. v. Perkins, 163 U.S. 625 (1896).
“A man cannot be compelled to against his will to accept even a benefit.” William Geldart, Elements of English Law, 8th ed. (Oxford University Press, 1975), p. 136.
Privilege (Lat. Privilegium, from private lex, private law), a special ordinance or regulation, in virtue of which an individual or a class enjoys certain immunities or rights from or beyond the common provisions of the general law of the community. Chambers Encyclopedia, Vol. VI (1893).
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Law, Equity, and Admiralty