80 



EQUITY. 



npplicnble to all of them. Every system of laws must 

 necessarily be defective ; and cases must occur, to 

 which the antecedent rules cannot be applied without 

 irjustice, or to which they cannot be applied at all. 

 It is the office, therefore, of a judge, to consider 

 whether the antecedent rule does apply, or ought, 

 according to the intention of the lawgiver, to apply 

 to a given case ; and, if there be two rules, nearly 

 approaching to it, but of opposite tendency, which 

 ought to govern ; and, if there exist no exact rule 

 applicnble to all the circumstances, whether the party 

 is remediless, or the rule furnishing the closest analogy 

 ought to be followed. The general words of a law 

 may embrace all cases ; and yet it may be clear that 

 all could not have been intentionally embraced ; for, 

 if they were, it would defeat tiie obvious objects of 

 the legislation. So words of doubtful import may be 

 employed, and of a more or less extensive meaning. 

 The question, in such cases, must be, in what sense 

 the words were used ; and it is the part of a judge 

 to look to the objects of the legislature, and to 

 give such a construction of the words as will further 

 those objects. He is not at liberty to set aside the 

 law, but to expound it. Gustos non conditor juris, 

 juvare, supplere, interpretari, mitigarejus civile potuit ; 

 mutare vet tollere non potuit (Taylor's Elements of 

 Civil Law, 214). This is an exercise of equitable 

 construction. It is the administration of equity. 

 Hence arises a variety of rules of interpretation of 

 laws according to their nature and operation, whether 

 they are remedial or penal, or restrictive of general 

 right, or in advancement of public justice. But this 

 is not the place to consider those rules, or the 

 application of them in different systems of law. 



Jn the law of England, equity lias a different and 

 more restrained meaning. We distinguish our 

 remedies for wrongs, or for the enforcement of rights, 

 into two classes those which are administered in 

 courts of law, and those which are administered in 

 courts of equity. The rights secured by the former 

 are called legal ; those secured by the latter are 

 called equitable. The former are said to be rights 

 and remedies at common law, because recognised 

 and enforced in courts of common law. The latter 

 are said to be rights and remedies in equity, because 

 they are administered in courts of equity or chancery, 

 or by proceedings in other courts analogous to those 

 in courts of equity or chancery. Now, in England 

 courts of common law proceed by certain prescribed 

 forms, and give a general judgment for or against 

 the defendant. They entertain jurisdiction only in 

 certain actions, and give remedies according to the 

 particular exigency of such actions. But there are 

 many cases in which a simple judgment for either 

 party, without qualifications and conditions, and 

 particular arrangements, will not do entire justice, 

 ex aquo et bono, to either party. Some modification 

 of the righti of both parties are required; some 

 restraints on one side or the other ; and some peculiar 

 adjustments, either present or future, temporary or 

 perpetual. Now, in all these cases, courts of com- 

 mon law have no methods of proceeding, which can 

 accomplish such objects. Their forms of actions and 

 judgment are not adapted to them. The proper 

 remedy cannot be found, or cannot be administered 

 to the full extent of the relative rights of all parties. 

 Such prescribed forms of actions are not confined to 

 iur law. They were known in the civil law ; and 

 the party could apply them only to their original 

 purposes. In other cases, he had a special remedy. 

 In such cases, where the courts of common law can- 

 not grant the proper remedy or relief, the law oi 

 England authorizes an application to the courts oi 

 equity or chancery, which are not confined or limitec 

 in their modes of relief by such narrow regulations, 



but which grant relief to all parties, in cases where 

 they have rights, ex a-quo et lono, and modify and 

 fashion that relief according to circumstances. 



The most general description of a court of equity 

 is, that it has jurisdiction in cases where a plain, 

 adequate, and complete remedy cannot be had at law ; 

 that is, in the common law courts. The remedy 

 must be plain, for, if it be doubtful and obscure at 

 law, equity will assert a jurisdiction. So it must be 

 adequate at law ; for, if it fall short of what the party 

 is entitled to, that founds a jurisdiction in equity. 

 And it must be complete ; that is, it must attain its 

 full end at law ; it must reach the whole mischief, 

 and secure the whole right of the party, now and for 

 the future ; otherwise equity will interpose, and give 

 relief. 



The jurisdiction of a court of equity is sometimes 

 concurrent with that of courts of law ; and some- 

 times it is exclusive. It exercises concurrent juris- 

 diction in cases where the rights are purely of a legal 

 nature, but where other and more efficient aid is 

 required than a court of law can afford, to meet the 

 difficulties of the case, and ensure full redress. In 

 some of these cases, courts of law formerly refused 

 all redress ; but now will grant it. But the juris- 

 diction having been once justly acquired at a time 

 when there was no such redress at law, it is not now 

 relinquished. The most common exercise of concur- 

 rent jurisdiction is in cases of account, accident, 

 dower, fraud, mistake, partnership, and partition. 

 The remedy is here often more complete and effectual 

 than it can be at law. In many cases falling under 

 these heads, and especially in some cases of fraud, 

 mistake, and accident, courts of law cannot and do 

 not afford any redress ; in others they do, but not 

 always in so perfect a manner. A court of equity 

 also is assistant to the jurisdiction of courts of law, 

 in many cases, where the latter have no like authority. 

 It will remove legal impediments to the fair decision 

 of a question depending at law. It will prevent a 

 party from improperly setting up, at a trial, some 

 title or claim, which would be inequitable. It will 

 compel him to discover, on his own oath, facts which 

 he knows are material to the right of the other party, 

 but which a court of law cannot compel the party to 

 discover. It will perpetuate the testimony of witnesses 

 to rights and titles, which are in danger of being lost 

 before the matter can be tried. It will provide for 

 the safety of property in dispute pending litigation. 

 It will counteract and control or set aside, fraudu- 

 lent judgments. It will exercise, in many cases, an 

 exclusive jurisdiction. This it does in all cases of 

 merely equitable rights, that is, such rights as are not 

 recognised in courts of law. Most cases of trust and 

 confidence fall under this head. Its exclusive juris- 

 diction is also extensively exercised in granting 

 special relief beyond the reach of the common law. 

 It will grant injunctions to prevent waste, or irrepara- 

 ble injury, or to secure a settled right, or to prevent 

 vexatious litigations, or to compel the restitution of 

 title deeds ; it will appoint receivers of property, 

 where it is in danger of misapplication ; it will 

 compel the surrender of securities improperly ob- 

 tained ; it will prohibit a party from leaving 

 the country in order to avoid a suit; it will re- 

 strain any undue exercise of a legal right, against 

 conscience and equity ; it will decree a specific per- 

 formance of contracts respecting real estates ; it will, 

 in many cases, supply the imperfect execution of in- 

 struments, and reform and alter them according to 

 the real intention of the parties ; it will grant relief 

 in cases of lost deeds or securities ; and, in all cases 

 in which its interference is asked, its general rule is, 

 that he who asks equity must do equity. If a party, 

 therefore, should ask to have a bond for an usurious 



