State v. Saunders

• Decision Date: 26 December 1889
• Citation: 25 A. 588,66 n.h. 39
• Parties: STATE ex rel. RHODES et al. v. SAUNDERS.
• Court: New Hampshire Supreme Court

25 A. 588

66 n.h. 39

STATE ex rel. RHODES et al.

v. SAUNDERS.

Supreme Court of New Hampshire. Hillsborough.

Dec. 26, 1889.

Petition in equity in the name of the state by 28 citizens of Manchester against John B. Saunders to abate a liquor nuisance, under Laws 1887, c. 77. Transferred to full bench on defendant's bill of exceptions, raising the questions, (1) the validity of the chapter under which the petition was filed; (2) whether defendant is entitled to trial by jury; and (3) whether the state is required to prove the existence of the illegal use of the building on the day of filing the petition. The chapter under which the petition is filed reads as follows: "Section 1. Any building, place, or tenement in any town or city that is resorted to for prostitution, lewdness, or illegal gaming, or that is used for the illegal sale or keeping for sale of spirituous or malt liquors, wines, or cider, is declared to be a common nuisance. Sec. 2. The supreme court shall have jurisdiction in equity, upon information filed by the solicitor for the county, or upon petition of not less than 20 legal voters of such town or city, setting forth any of the facts contained in section 1 of this act, to restrain, enjoin, or abate the same; and an injunction for such purpose may be issued by said court, or any justice thereof."

R. M. Wallace, Sawl. Upton, and James W. Remick, for the State.

W. L. Foster and J. P. Ilartlett, (J. H. Andrews, D. F. O'Connor, Mr. Lord, William Little, and A. R. Simmons, of counsel,) for defendant.

ALLEN, J. "Equity, as a great branch of the law of their native country, was brought over by the colonists, and has always existed as a part of the common law, in its broadest sense, in New Hampshire." Weils v. Pierce, 27 N. H. 503, 512; Copp v. Henniker, 55 N. H. 179, 210; Penhallow v. Kimball, 61 N. H. 596, 598,599; Carroll v. McCullough, 63 N. H. 95, 98; Eckstein v. Downing, 64 N. H. 248, 259, 9 Atl. Rep. 626. "Until the case of Marston v. Brackett, 9 N. H. 336, decided in 1838, it had not been intimated in this stare, or anywhere else, that there was a right "of trial by jury in equity proceedings. I venture to say that if such a right ever existed in this state, it was after, and not before, the observation of Chief Justice Parker in that case. It is not necessary, in the view I take, to inquire whether that observation established such a singular and anomalous doctrine in this state or not. It is enough that up to that time all the books and cases where the common law prevails are the other way." Ladd, J., in Perkins v. Scott, 57 N. H.55,81. The novel doctrine, adopted "without consideration," was abandoned as soon as it was examined. Copp v. Henniker, 55 N. H. 179,210,211; Bellows v. Bellows, 58 N. H. 60; Sargent v. Putnam, 58 N. H. 182; Proctor v. Green, 59 N. H. 350, 352; Davis v. Dyer, 62 N. H. 231, 236. "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, * * * the parties have a right to atrial by jury." Bill of Rights, art. 20. If this clause had been re-enacted in 1792, 1851, 1876, and 1889, when constitutional amendments were submitted to the people, it is not to be assumed that its original meaning would have been changed by repeated adoptions. But it has not been adopted since it took effect in June, 1784. The impression that a constitution was adopted in 1792 (Gen. Laws, p. 40, note; 55 N. H. 190-192) is erroneous. Journal of the Convention in 10 Prov. and State Papers, 57, 63, 110-114, 141-168. The state has had but one permanent constitution. The government of 1776 was intended to be temporary. Brewster v. Hough, 10 N. H. 143; Gould v. Raymond, 59 N. H. 272. "The constitution of 1792" Is a misnomer. In article 20 of the bill of rights, and in article 90 of the second part of the constitution, "heretofore" means before 1784. "All the laws which have heretofore been adopted, used, and approved in the province, colony, or state of New Hampshire, and usually practiced on in the courts of law, shall remain and be in full force until altered and repealed by the legislature; such parts thereof only excepted as are repugnant to the rights and liberties contained in this constitution." Article 90. "All the laws which have heretofore been * * * usually practiced on in the courts" can be read in a sense that includes only such legal rules as can be shown to have been applied in New Hampshire cases. But this is not the meaning. The English common law, modified by American conditions, is one of "the laws which have heretofore been adopted, used, and approved in the province * * * of New Hampshire, and usually practiced on in the courts." This body of New Hampshire law (being the common law of England, such parts excepted as are not consistent with the contutions and circumstances of the country) is to "remain and be in full force until altered and repealed by the legislature." State v. Rollins, 8 N. H. 550, 563, 564; Lord v. State, 16 N. H. 325, 330. In 1836, when the defendant in State v. Buckman, 8 N. H. 203, was found guilty of the common-law offense of maliciously tainting and corrupting a well of water by putting the carcass of an animal in it, the state was not required to show an actual or usual practice in the New Hampshire courts in this branch of criminal law before 1784. The defendant's motion in arrest of judgment would not have prevailed if the state had admitted that this was the first American case in which the rights of person and property had been violated in the manner set forth in the indictment. These rights were brought to this state by the first settlers, and were founded on legal principles, and not on the mere evidence of law furnished by precedents and decisions. These principles would have remained in force if article 90 had not been adopted. A written order was as unnecessary for the continuance of the unwritten law in 1784 as for its introduction in 1623. "The common law of England consisted of those maxims of freedom, order, enterprise, and thrift which had prevailed * * * from time immemorial. It was the outgrowth of the habits of thought and actions of the people, and was modified gradually and insensibly, from time to time, as those habits became modified. * * * Springing from the very nature of the people themselves, and developed in their own experience, it was obviously the body of laws best adapted to their needs, and, as they took with them their nature, so also they would take with them these laws whenever they should transfer their domicile from one country to another. * * * From the first, the colonists in America claimed the benefit and protection of the common law. In some particulars, however, the common law as then existing in England was not suited to their condition and circumstances in the new country, and those particulars they omitted, as it was put in practice by them." Cooley, Const. Lim. 32, 34. "The first colonists of New England were fishermen and farmers, their leaders were clergymen, and though they brought with them a general idea of English law and English liberty, the registers of writs were sealed books to them, as much as they are to us at this day. Instead of attempting to follow the forms: of the register, they devised processes of their own. The recital of some of them will show that no reverence for any ancient forms existed among the courts here. * * * We regard the ignorance of the first colonists of the technicalities of the common law as one of the most fortunate things in the history of the law; since, while the substance of the common law was preserved, we happily lost a great mass of antiquated and useless rubbish, and gained in its stead a course of practice of admirable simplicity, and one which seems to us far better than the most improved codes of practice which have been recently introduced elsewhere." Railroad Co. v. State, 32 N. H. 215, 230, 231. With substantive rights, the first settlers brought over the incidental rights of adequate remedy and convenient procedure. Cases cited in Boody v. Watson, 64 N. H. 178, 179, 9 Atl. Rep. 794. If the jurisdiction of a court of equity were an arbitrary power of violating legal rights, or doing justice in cases in which there is no law and no right, it might be said that equity was not a part of the common law brought over by the colonists, and that it did not exist here before a provincial court of chancery was established. But the work of such a court being the administration of law and the maintenance of rights chiefly in cases in which the power of other courts was formerly supposed to be defective in respect to adequacy of remedy and procedure, (3 Bl. Comm. 429-442,) the theory that equity was not a branch of the provincial law cannot be accepted without overturning the fundamental principle that adequate remedies are incidents of substantive rights, and holding that, from the necessity of sufficient means of protection, the law implies a remedial system that is insufficient. Adequate remedy includes not only real actions, writs of possession, replevin, and judgments for damages, but also the specific performance of some contracts, and specific relief by injunction, receivership, partition, and other forms of equitable decree for trusts, fraud, accident, mistake, confusion of boundaries, partnership, nuisance, and other cases of equity jurisdiction.

For some purposes legal rights may be conveniently divided into classes; but every classification does not indicate that they came in to existence at different times. The incidental right to an adequate remedy for the infringement of a right derived from the unwritten law is coeval with the right of which it is an incident. The law of right and remedy that was administered in State v. Buckman came with the first emigrants who landed at Portsmouth, and not with the first provincial tribunal authorized to...