tects especially trusts and equitable estates generally; injuries arising by mistake, accident, and fraud; many cases of penalties and forfeitures, in order to relieve against them; cases of imposition, unconscionable bargains, and betrayals of confidence; many cases of impending irreparable injuries or meditated mischiefs; and many cases of oppressive proceedings and undue advantages,-while a court of common law in some of these cases, as notably in the case of trusts and equitable estates, does not recognize the right, and in all of them affords no protection thereto, or a very inadequate one.11

(2) The different natures of the remedies which they apply. In courts of common law there are certain prescribed forms of action to which the party must resort to furnish him a remedy, and, if there be no prescribed form to reach such a case, he is remediless. In common-law actions, a general and unqualified judgment only can be given for the plaintiff, or for the defendant, without adaptation of it to particular circumstances. There are many cases in which a simple judgment for either party, without qualifications or conditions, or peculiar arrangements, will not do entire justice, ex aequo et bono, to either party, and cannot give the desired relief, for the reason that they have no forms of remedy adapted to the objects. But courts of equity are not so restrained. Although they have prescribed forms of proceeding, the latter are flexible, and may be suited to the different postures of cases. They may adjust their decrees so as to meet most, if not all, of these exigencies, and they may vary, qualify, restrain, and model the remedy so as to suit it to mutual and adverse claims, controlling equities, and the real and substantial rights of all the parties. They can bring before them all parties interested in the subject-matter, and adjust the rights of all, however numerous, while courts of common law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons

111 Story, Eq. Jur. § 29; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1218 (1103).

may have the deepest interest in the event of the suit.12 The remedies in courts of equity are frequently very different, in their nature, mode, and degree, from those of courts of common law, even when each has jurisdiction over the same subject-matter. Thus, a court of equity, if a contract is broken, will often compel a party specifically to perform the contract, whereas courts of law can only give damages for the breach of it. So, courts of equity will interfere by way of injunction to prevent a wrong, whereas courts of common law can grant redress only when the wrong is done.13

(3) The different natures of the forms and modes of procedure which they adopt.

The modes of seeking and granting relief in equity are also different from those of courts of common law. Thus, equity determines contested facts by the court, instead of by a jury, and derives proofs from discoveries on oath made by the parties, as well as from the evidence of disinterested witnesses, although in this particular the courts of law are by statute in many of the states closely assimilated to the equity courts.14

$ 4. The English court of chancery.

Equity was in England a branch of the jurisdiction of the court of chancery, and was there denominated its extraordinary jurisdiction. The chief judge of the court of chancery in Eng

121 Story, Eq. Jur. §§ 26-28.

131 Story, Eq. Jur. § 30.

141 Story, Eq. Jur. § 31; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1219 (1104). The functions of the courts of equity—that is, the jurisdiction exercised by them-have been subjected to various classifications by different writers, all of them founded more or less closely upon a comparison with the authority and functions of the common-law courts. It is not believed that such classifications afford help to a practical understanding of the subject, and they will only be referred to. For the classification proposed by Lord Redesdale, see Mitford, Eq. Pl. 3 et seq., 103 et seq. For the classification proposed by Mr. Fonblanque and Mr. Justice Story, see 1 Fonblanque, Eq. B. I. c. 1, § 3, note (f), and American note; 1 Story, Eq. Jur. § 75 et seq. For the classification by Mr. Spence, see 1 Spence, Eq. Jur. 429 et seq.

This office existed from the
King Arthur is said to

land was the lord high chancellor. most remote antiquity of the law. have appointed a chancellor. The Anglo-Saxon monarchs, from Ethelbert downward, certainly had such an officer, although it is not therefore to be concluded, as some have done, that the chancery dispensed justice as an ordinary tribunal in the reign of King Alfred. The office of chancellor did, indeed, then exist; but centuries elapsed before the chancery assumed the functions of a court.15 The chancellor, however, for several centuries held a court, known as the "Court of Chancery," which consisted of two distinct tribunals,-the one, ordinary, being a court of common law; the other, extraordinary, being a court of equity. Which of these courts was the more ancient has given rise to dispute. Blackstone contended that the court of common law, which was the ordinary court of chancery and a court of record, was the more ancient. Lord Campbell, however, expressed the opinion that they originated at the same time.18

The equitable, or extraordinary, branch of the court of chancery, for many ages possessed more judicial consequence than any other court in England; and in the jurisprudence of the United States, and of many of the states, equity cognizance holds an important place. The causes which gave rise to the equitable jurisdiction of the court of chancery in England have been stated to be four in number:

(1) The unreasonable rigor or remissness of the clerks of chancery in omitting to devise new writs, and the illiberality of the judges in declining to extend the remedial effect of the old. It was the duty of such clerks to hear and examine the complaints of those who sought redress in the king's courts, and to furnish them with the appropriate writs. They possessed the power to adapt the existing forms to particular cases,

15 4 Minor, Inst. Com. & St. Law (2d Ed.) 1213 (1098), citing 1 Campbell, Lives Ld. Ch. 26.

16 4 Minor, Inst. Com. & St. Law (2d Ed.) 1213 (1038), citing 1 Camp. bell, Lives Ld. Ch. 30: 2 Bl. Comm. 47.

which were only new in the instance, and not in principle. The clerks neglecting to perform this duty, the statute of 13 Edw. I., c. 24, was passed, whereby it was provided that "whensoever from henceforth it shall fortune in the chancery [that is, in the registry of writs kept there] that in one case a writ is found, and in like case falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ; or the plaintiffs may adjourn it until the next parliament, and let the cases be written in which they cannot agree, and let them refer themselves until the next parliament, and, by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants." This statute led to the adoption of numerous writs, some in tort and others in contract, taking the name of writs of trespass on the case. This statutory provision, with some effort on the part of the clerks or masters in chancery, might have effectually answered in some important particulars the purposes of a court of equity; and on the other hand, even though the clerks had disregarded, as they did, the policy of the statute above cited, had the judges exercised a due liberality in extending the remedial effects of the existing writs, there would have been comparatively small occasion to resort to any extraordinary jurisdiction. But both clerks and judges were wanting in a just appreciation of their duty, and suitors, finding themselves denied redress in any of the king's courts, brought their grievances directly to the king, and in process of time all such cases of residuary or unappropriated jurisdiction fell under the extraordinary authority of the court of chancery.17

(2) The power and influence of the great barons in perverting the administration of justice.18

17 The foregoing is taken almost bodily from that great work, Minor, Inst. Com. & St. Law (2d Ed.) vol. IV., pp. 1214, 1215 (1099, 1100), where are cited 1 Spence, Eq. Jur. 238, 239; 2 Reeve, Eng. Law, 203; Pref. 9 Co. p. xxviii.; 3 Bl. Comm. 50, 51.

18 4 Minor, Inst. Com. & St. Law (2d Ed.) 1215 (1100); 1 Spence, Eq. Jur. 342, 343; 1 Campbell, Lives Ld. Ch. 32.

(3) The general inadequacy, in many cases, of the only remedies obtainable in a court of law. Instances of this are where the parties were interested, as in the case of partners, touching affairs of the partnership; where the specific enforcement of a collateral agreement was necessary to the justice of the case; or where there was urgent need, by some specific prohibitory process, to prevent irremediable damage to property or to health.19 In such cases the intervention of equity was necessary in order to prevent a failure of justice.

(4) The introduction of uses and trusts into England. Uses and trusts were introduced in the latter part of the reign of Edward III., about A. D. 1370. The idea was derived from the fidei commissum of the Roman law, and was resorted to by the ecclesiastics in order to evade the statutes of mortmain. Such introduction of uses or trusts may have given new activity and extended operation to the jurisdiction of the court, but it did not found it. The redress given by the chancellor in such cases was merely a new application of the old principles of the court, since there was no remedy at law to enforce the observance of such uses or trusts.20

Originally, the lord chancellor was the only judge sitting in the court of chancery. Next in order of time, as well as of rank, came the master of the rolls, whose office was established in the reign of Edward the First. With the increase of business, vice-chancellors were added to the court. From the decisions of a vice-chancellor, as well as from those of the master of the rolls, an appeal lay to the chancellor. In 1850 the new court of appeal was created, for the purpose of relieving the lord chancellor, in some degree, of his judicial duties. Appeals lay to this court from the decisions of the master of the rolls and of the vice-chancellors.21 In 1873 important changes were made in the judicial system of England. These were brought

19 4 Minor, Inst. Com. & St. Law (2d Ed.) 1216 (1101); 1 Campbell, Lives Ld. Ch. 32.

20 1 Story, Eq. Jur. § 49. See, also, 4 Minor, Inst. Com. & St. Law (2d Ed.) 1216 (1101); 1 Spence, Eq. Jur. 442 et seq.; 3 Bl. Comm. 51. 21 Merwin, Eq. & Eq. Pl. 9, 10.