Page:Harvard Law Review Volume 10.djvu/119

93 A BRIEF SURVEY OF EQUITY JURISDICTION. 93 authority directly upon the point.^ The absence of English au- thority may be due to the fact that no such question can have arisen in England since the statute of 4 Geo. II. c. 28, s. 5.'*^ It has been held, in two cases,^ that the fact that no sufficient dis- tress can be found on land out of which a rent issues, does not authorize the owner of the rent to resort to equity for relief; but it seems impossible to support these cases upon any principle. It is admitted that equity will interfere, if the right to distrain be ren- dered fruitless by fraud ; and yet fraud does not seem to affect the question. The ground upon which a rent-owner must be relieved in equity, if at all, is the want of a sufficient remedy at law, and whether that ground exists or not, does not at all depend upon the conduct of the rent-payer. If, indeed, the supposed fraud could be made the ground of relief, the case might be different; but that seems to be impossible. To prevent a distress by fraud is, like any other fraud, a tort; and, such a fraud having been committed, the only way in which equity can relieve against it is by compelling the tortfeasor specifically to repair his tort; but how can equity compel the specific reparation of such a tort? It was, indeed, prayed in one case* that a sufficient distress be set out by the defendant, but the granting of such relief would clearly be out of the question. If a court of equity assume jurisdiction of a bill to enforce the payment of rent, what will be the relief which it will grant against the land out of which the rent issues? It was held in one well considered case^ that a sale of the land would be directed, and the proceeds of the sale applied to the payment of the rent. But there seem to be two serious objections to such a course: 1st, such relief is not well adapted to a case where payments in annual, semi- annual, or quarterly instalments are to be provided for, perhaps for an indefinite period ; 2dly, a rent, as has been already seen, is not in its nature a charge upon the corpus of the land out of which it issues, but merely upon its fruits and income ; and when a court of equity gives relief upon the foundation of a legal right, it cannot extend its relief beyond the legal right. It seems, therefore, that 1 In Champernoon v. Gubbs, Ch. Prec. 126, the plaintiff's counsel said: "If the rent had been granted without any clause of distress, or any other remedy at law, he might have had relief here." ^ See supra, p. 84, n. i. ^ Cupit V. Jackson, 13 Price, 721.
 * Davy V, Davy, i Ch. Cas. 144; Champernoon v. Gubbs, 2 Vern. 382.
 * Champernoon v. Gubbs, 2 Vern. 382; Ch. Prec. 126.