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Page:Harvard Law Review Volume 1.djvu/130

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that the damage which will be caused to him by the prevention of the act will so much exceed the damage which will be caused to the plaintiff by the doing of the act that the interference of equity will not be promotive of justice. If the defendant can show that, the plaintiff should, it seems, be left to his remedy at law. One objection to the interference of equity under such circumstances is that it is not likely to have any other effect than that of compelling the defendant to purchase the plaintiff’s acquiescence at an exorbitant price.

It must be confessed, however, that the foregoing distinctions, though, it is conceived, they will throw much light upon the jurisdiction actually exercised, will not fully account for it, either affirmatively or negatively, even when it depends wholly upon the nature of the tort. Questions of jurisdiction do not receive the same careful and constant attention which is bestowed upon questions of substantive right; and therefore, in dealing with such questions, the elements of haste, accident, caprice, the habits of lawyers, the leanings of individual judges, and the ever-changing temper of public opinion, have been factors of no inconsiderable importance. The jurisdiction of equity over torts in particular has grown up by slow, almost imperceptible degrees; and the jurisdiction exercised over one class of torts has often had little influence upon the exercise of jurisdiction over other and analogous classes of torts.

It becomes necessary, therefore, to inquire briefly into the jurisdiction actually exercised by equity over different classes of torts. There are two large and important classes of torts over which equity practically assumes no jurisdiction whatever, namely, torts to the person and to movable property. Its jurisdiction, therefore, is substantially limited to torts, to immovable property, and to incorporeal property. Torts to immovable property are waste, trespass, and nuisance. Torts to incorporeal property may, it seems, all be classed as nuisances, though it is usual to treat torts to certain lawful monopolies, not relating to land (e. g., patent-rights and copy-rights), as constituting a class by themselves under the name of infringements of the rights violated.

Waste is a tort committed by the owner of a particular estate in land, the person injured being the remainder-man or reversioner. It is, therefore, a tort to the land, committed by a person in possession of the land, and whose possession is rightful, against a