EQUITY. 



EQUITY, quasi tequalilas, is generally 

 understood, in l:i\v, a liberal correction, or 

 qualification of the law, where it is too 

 strict, too confined, or severe, and is 

 sometimes applied, where, by the words 

 of a statute, a case does not fall within it, 

 yet being within the mischief, the judges, 

 by an equitable construction, have ex- 

 tended its application to that case. Equi- 

 ty is understood as a correction of the 

 law : the difference between courts of 

 equity and law is known only in this 

 country, and arises principally, if not en- 

 tirely, from the different modes of trial, 

 which must ever render them essentially 

 distinct. For it is obvious, that where 

 men form contracts in the ordinary 

 course of law, the legal consequence, and 

 the enforcement of them, must be, ac- 

 cording to general rules, applicable to ge- 

 neral cases ; and the nature of our mode 

 of trial by jury is so strict in the evidence 

 which it requires, that a strict legal deci- 

 sion alone can justly be founded upon it. 

 Thtrt- are, however, many cases, in which 

 there are particular circumstances be- 

 tween the different parties peculiar to 

 their case, which give rise to exceptions 

 and equitable decisions wholly different 

 from the general rule. These cases of 

 exception are such, that unless the judge 

 can inquire into all the circumstances af- 

 fecting the conscience of the several par- 

 ties, a perfectly equitable decision cannot 

 be given. For this purpose the court of 

 equity is empowered to examine all the 

 litigant par'.ies upon their oaths, and to 

 make every one answer to the full, as to 

 all the circumstances affecting the case, 

 which is not done in a court of law, 

 where no person can be a witness in his 

 own cause. 



In equity, however, the plaintiff by 

 filing iiis hill waves the objections, and 

 submit s to take the answer of each de- 

 fendant, though he cannot be admitted 

 to give evidence himself. This is the 

 process by what is called English bill 

 in equity ; and the form of proceeding, 

 though somewhat tardy, gives the par- 

 ties the fullest opportunity of obtaining 

 a final decision according to good con- 

 science. It is this difference in the pro- 

 ceeding, which has rendered the best 

 judges in courts of law averse to intro- 

 ducing equitable distinctions and princi- 

 ples, applicable to courts of equity, in 

 courts of law, because they have not the 

 same means of informing their con- 

 sciences upon all the circumstances ne- 

 cessary to induce them to alter the 

 strict law according to the peculiar facts, 



or conscientious circumstances of the 

 case. Formerly, it is supposed, the 

 King, upon petition, referred the case 

 upon a harsh decision at law to a com- 

 mittee, together with the Chancellor ; 

 but in the time of Edward III. when 

 uses, or trusts of lands, which were dis 

 countenanced at common law, were con- 

 sidered as binding in conscience by the 

 clergy, John Waltham, Chancellor to 

 Richard II. introduced the writ of siii>- 

 pxna, returnable in the Court of Chance- 

 ry only, to make the tenant, or feoffee to 

 uses, answerable for the confidence re- 

 posed in him, and this writ is the com- 

 mencement of a suit in equity, which 

 has been chiefly modelled by Lord Elles- 

 mere, the great Lord Bacon, and Sir 

 Heneage Finch, in the time of Charles 1. 

 Lord Hardwicke followed, at some dis- 

 tance, after these great men, and by his 

 decisions, together with those of his suc- 

 cessors, has established a practical sys- 

 tem of equity, which is as definite and 

 well understood as the law itself; and 

 taking into consideration the leading cir- 

 cumstances above mentioned, is nothing 

 more than the law administered accord- 

 ing to the justice of the case. There 

 are some cases which belong more pe- 

 culiarly to a court of chancery, as the 

 care of infants, and appointing guardians 

 to them; so of lunatics and charities, in 

 which the Chancellor acts for the King 

 as keeper of his conscience. In other 

 cases, as in cases of trust, matters of 

 fraud, account, suits for a discovery, 

 matters of accident, and the like, courts 

 of equity act, in aid of the courts of law, 

 and give relief, where, from the nature 

 of the case, a court of law cannot relieve. 

 Thus, where an agreement is to be per- 

 formed, courts of law can only give da- 

 mages for the breach ; but a court of 

 equity, taking all the circumstances into 

 consideration, directs and enjoins a speci- 

 fic performance of it according to good 

 conscience. So, where it apprehends an 

 injury likely to be done, it will interfere 

 to prevent it. 



We have thought this explanation of 

 the general principles, which distinguish 

 courts of law and equity, better suited to 

 a work like the present, than an attempt 

 to abridge any more particular account 

 of the practice and principles of courts 

 of equity, which will be found to pro- 

 ceed upon the ordinary rules of good 

 conscience, as far as they can be reduced 

 to practice. An appeal lies from the 

 Chancellor to the House of Lords. The 

 Court of Exchequer has a court of equi- 



