Grants relief where the law does not.

cases it interfered to relieve against proceedings taken in courts of common law.

In equity, the term conscience originally embraced those obli- . gations which result when one person is placed in any situation as regards another, that gives the one a right to expect, on the part of the other, the exercise of good faith toward him. The determination of cases according to equity, embraced all those instances in which a party, who has not committed any act contrary to good faith or conscience, but who may yet, according to the strict rules of positive law (which may, in their general application, be founded on natural justice), or by the silence of the law in not providing at all for some particular case, have an advantage which it is contrary to the principles of equity that he should enforce or retain. In such cases, a resort was had to the general principles of equity, in the sense of natural justice, which are antecedent to all positive law. In proceedings thus founded upon right, justice and conscience, the court took cognizance of cases in which there was no remedy at law; and it might also decline to interfere when the claim made was such that a court of equity could not, according to its principles, enforce it; and, as a result of this system, the court could in many cases grant or refuse the relief sought, according as justice might dictate.

But a court of equity will not in any case allow itself to be made an instrument of injustice. And where a court of equity by its interposition to prevent an act rightfully or wrongfully intended, has caused the loss of a remedy at law, this court will give him a remedy equivalent to that from which the interposition of the court debarred him. Pulteney v. Warren, 6 Ves. 73; Brown v. Newall, 2 M. & C. 558, 572.

Section 6. Grants relief where the law does not. Courts of equity proceed upon the principle that they will grant relief in those cases in which it ought to be granted according to equity, but where no remedy is given by the common law. This omission may arise in those cases in which the rules of the common law have made no provision for a case like the one presented for adjudication; or it may be that the rules of practice of the courts of law do not meet the requirements of the particular case, and thus fail to give any remedy, or, a very inadequate one.

The remedial process, the pleadings and practice of courts of equity, are all so framed that the party may obtain every relief

Equity is governed by settled rules and principles.

consistent with equitable principles. And the final remedial process may be so varied as to meet the requirements of these equities, in those cases in which the jurisdiction of the court exists, by commanding what is right, and forbidding what is wrong, and then enforcing the decree made. A court of equity has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time, and in future; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law; it is sometimes exclusive of it; and it is sometimes auxiliary to it.

Section 7. Equity is governed by settled rules and principles. Courts of equity had their origin in the wants of suitors who failed to obtain a remedy through the aid of common-law courts. And, in many instances, equity gave proper relief when the law courts had no means of affording the desired and needed remedy. In the contests between the courts of law and those of equity, at an early period, it was sometimes said that the latter courts were not governed by settled rules, but acted upon an arbitrary discretionary power. But, waiving that question, it is sufficient to state, that for a long period the powers of these courts, and the rules and principles upon which they proceed, are as well settled as those of the common-law courts.

The object of a court of equity was to afford relief in those cases in which no legal relief was attainable. But it has also been said that it was the business of a court of equity to abate the rigor of the common law; and, while it may be conceded that, in some cases, the interference of a court of equity has had this effect, yet all the rules of the common law which equity has taken upon itself to overrule have long since been well defined, and many of them have ceased, even at common law, to govern the judgments of the courts. 3 Broom. & Had. 54. The

Equity devises new remedies.

educational course, which courts of equity seem to have furnished to courts of law, has been long so far completed, that no new doctrines in equity opposed to the rules or doctrines of courts of law have been established. Ib. 55. Nor does equity, even now, profess to criticise or review decisions of courts of law; moreover, it does not, and never did, interfere to mitigate the severity, where any exists, of rules of positive law. There are, however, some of the early cases in which equity has very nearly, if it has not absolutely, overridden positive law; and those cases relating to the statute of frauds serve as well as any to show how far the power has been exercised. Ib. 56.

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 decided, and may thus illustrate or enlarge the operation of those principles; but the principles are as fixed and certain as the principles on which the courts.of common law proceed. Bond v. Hopkins, 1 Sch. & Lefr. 428, 429.

This application of existing principles to new cases as they arise is not peculiar to courts of equity; for the common-law courts are daily engaged in adding to the principles of the old jurisprudence, and in enlarging, illustrating and applying legal maxims and rules.

Section 8. Equity devises new remedies. The numerous cases in which equity interfered and granted relief where none was given before has given rise to the opinion that courts of equity devise new remedies. When it is said that equity grants relief, while at law the complaining party was remediless, it might seem like a new remedy; and yet, it will be remembered that such relief was in accordance with well-settled principles of equity. But, even if it were assumed that courts of equity did, at an early day, exercise the power mentioned, it must be remembered that this court is now as much controlled by general laws as any other court. And while it is proper that all courts should freely exercise their powers for the advancement of justice, it is the part of wisdom and of safety for all courts to keep clearly within the limits of their jurisdiction; and, if additional powers are required, to leave that matter with the legislature.

Mode of relief- Maxims of equity.

Section 9. Mode of relief differs more than principles of law. The law speaks but one language, for all courts, in reference to the legal rights of the parties involved in a litigation. But, in matters of mere practice, there is a wide difference between courts of equity, and those of law, and, in many instances, it is the sole difference to be considered by the party seeking to have his rights determined by a court.

Section 10. General rules and maxims of equity. In actions at law, every party may stand upon his strict legal rights, and the court is bound to give the remedy which the law has provided. In courts of equity, there are some rules and maxims which seem more like the exercise of a discretionary power, as they doubtless are, in some instances.

First. If equity once had jurisdiction of the subject-matter because there is no remedy at law, or because that remedy is inadequate, it does not lose the jurisdiction merely because the courts of law afterward give the same or a similar relief.

Second. Equity follows the law. This is true as a general maxim. Equity follows the law, except in relation to those matters which give a title to equitable relief because the rules of law would operate to sanction fraud or injustice in the particular case.

Third. Where there is equal equity the law must prevail. The ground upon which the suitor comes into a court of equity is that he is entitled to relief there. But, if his adversary has an equally equitable case, the complainant has no title to relief, and the court will not interfere on either side.

Fourth. Equality is equity. This rule is applied to cases of contribution, apportionment of moneys due among those liable to, or benefited by the payment, or abatement of claims on account of deficiency of the means of payment, etc.

Fifth. He who seeks equity must do equity. A party cannot claim the interposition of the court for relief unless he will do what it is equitable should be done by him as a condition precedent to that relief.

Sixth. Equity considers as done that which ought to have been done. The illustrations of this rule will be found in works upon equity.

Seventh. He who has committed iniquity shall not have equity. As in cases of illegal contract, or where a party has put his property out of his hands to defraud his creditors, a court of equity will not restore the party to his former condition.

General rules and maxims of equity.

Eighth. Equity suffers not a right without a remedy. This maxim is generally, though not universally, true.

Ninth. When the equities are equal in other respects, he who is first in point of time will secure the advantage. But if the equities are unequal, preference will be given to the superior equity.

Tenth. The fund which has received the benefit should make satisfaction. Again, satisfaction should be made to that fund which has sustained the loss.

Eleventh. Equity acts upon the person. This maxim has been explained ante, 16, § 1.

Some of the principal distinctions between legal actions and equitable suits having been thus briefly noticed, our next inquiry will relate to the effect of the union of legal and equitable remedies which are now administered by the same courts in both classes of cases.

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