EQUITY PLEADING AND PRACTICE CHAPTER I. GENERAL NATURE OF EQUITABLE JURISDICTION. § 1. Nature of equity. The jurisprudence of the United States, and of certain of the states composing the same, is divided into two principal branches, -common law and equity. Suits in equity include an immense number and variety of subjects, all of civil, and none, in modern times, of criminal, jurisdiction. In the most general sense, equity is termed that which in human transactions is founded on natural justice, in honesty and right, and which properly arises ex aequo et bono. In this sense it answers precisely to the definition of justice or natural law, as given by Justinian in the Pandects. It is, however, erroneous to suppose that equity, as administered in England and America, embraced a jurisdiction so wide and extensive as that which arises from the principles of natural justice. Even the Roman law, which has been thought to deal to a vast extent in matters ex aequo et bono, never attempted so wide a range of duties for any of its judicial tribunals. Perhaps the most concise definition of equity, in the sense now under consideration, is that of Mr. Justice Story, who defines equity jurisprudence to be "that portion of remedial justice which is exclusively administered by a court 14 Minor, Inst. Com. & St. Law (2d Ed.) 1212 (1097). For equity jurisdiction of the courts of the United States and of the several states, see 1 Pomeroy, Eq. Jur. §§ 282-358. 1 Story, Eq. Jur. § 1. 1 Story, Eq. Jur. § 2. of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law."4 § 2. Equity is a uniform system of law. The chancery jurisdiction was at one time opposed with ve hement disapprobation by common-law lawyers, and notions in regard to the discretionary power of courts of equity were propagated by some of the leading English text writers. Thus, Selden said: "For law we have a measure, and know what to trust to. Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor's conscience."5 In the early history of English equity jurisprudence there probably was much to justify the sugges tion that courts of equity were bounded by no certain limits or rules, but that they acted upon principles of conscience and natural justice, without much restraint of any sort; but with the lapse of time, equity has developed into a system of established law, and cannot now be said to be the chancellor's sense of moral right, or his sense of what is equal and just.7 One of the ablest judges that ever sat in equity-Lord Redesdalesaid upon this subject: "There are certain principles on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of equity have in this respect no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been 41 Story, Eq. Jur. 25; Bispham, Eq. § 1; Bouvier, Law Dict. tit. "Equity." 5 See Selden, Table Talk, tit. "Equity": 1 Story, Eq. Jur. § 19; 3 Bl. Comm. 432, note (y). 1 Story, Eq. Jur. § 21. 7 Savings Institution v. Makin, 23 Me. 360. |