92 HARVARD LAW REVIEW. Therefore, in strictness, these cases do not belong to the present inquiry. It is further to be observed that, in such cases, according to modern practice, if the merits of the plaintiff's case be contro- verted by the defendant, there must be a trial at law, under the direction of the court of equity, before final relief can be given ; and the court of equity, in decreeing a trial at law, will direct that the defendant do not set up the defence {e.g.) of want of seisin, or want of attornment. It will be seen, therefore, that the obligation which equity enforces in such cases is always negative. If, indeed, equity should treat the obligation as affirmative, and decree the defendant {e. g.') to give the plaintiff seisin, or to attorn to him, it would stop there, and leave the plaintiff to sue at law indepen- dently of equity, just as if he had obtained seisin or an attorn- ment without the aid of equity; but in modern times equity declines to give such relief, and for very good reasons. If equity interferes at all, it will insist upon controlling the entire litigation ; and if a trial at law is necessary, it will insist upon its being had under its own direction. If a rent be reserved or granted out of incorporeal property, e. g. out of tithes,^ or out of a manor in which there are no demesne lands, and which consists, therefore, only of a seigniory or services,^ or out of tolls,^ as there can of course be no distress, a bill in equity to enforce payment of the rent will be entertained. So if an owner of rent be unable to identify the land out of which the rent issues, because of the uncertainty and confusion of boundaries, and there- fore cannot distrain, he will be entitled to come into equity to have the boundaries of the land ascertained, and payment of the rent enforced.^ So if the existence of a rent be clearly proved, but it cannot be ascertained what kind of rent it is, and hence the owner of it cannot distrain, he will be entitled to relief in equity.^ There seems to be the same reason for giving relief in equity to an owner of rent who has no right to distrain, though there seems to be no 1 Thorndike v. Allington, i Ch. Cas. 79; Busby v. Earl of Salisbury, Finch, 256, cited {nom. Berkeley v. Salisbury), 2 Bro. C. C. 518. 2 Duke of Leeds v. Powell, i Ves. 171. 8 Duke of Leeds v. New Radnor, 2 Bro. C. C. 338.
- Boreman t/. Yeat, cited i Ch. Cas. 145; Cocks v. Foley, i Vern. 359; North z/.
Strafford, 3 P. Wms. 148 ; Benson v. Baldwyn, i Atk. 598 ; Duke of Bridgewater v. Edwards, 6 Bro. P. C. (Toml. ed.) 368. 6 Collet V. Jaques, i Ch. Cas. 120; Cocks v. Foley, i Vern. 359.
