Equity

Equity, a species of unwritten law, so termed by way of distinction from the original and proper law of England or (as it is usually termed) the Common Law. The origin of equity may be thus stated: - The ancient structure of our national jurisprudence, whatever its other merits, was very defective in compass and enlargement of view. It paid. no attention to several matters which it is incumbent on a civilised judicature to deal with, and to others it applied maxims too strict to satisfy the idea of justice in an advanced state of society. Its judicial remedies were also cumbersome and limited in character. Thus (to quote from Mr. Justice Story's Treatise on Equity), a Court of Equity has jurisdiction in cases where a plain, adequate, and complete remedy cannot be had at 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 present and future - otherwise equity will interpose and give relief. The jurisdiction of a Court of Equity is sometimes concurrent with the jurisdiction of the courts of law, sometimes assistant to it, and sometimes exclusive. It exercises concurrent jurisdiction 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. In some of these cases courts of law formerly refused all redress, but now will grant it. For, strict law comprehending established rules, and the jurisdiction of equity being called into action when the purposes of justice rendered an exception to those rules necessary, successive exceptions on the same grounds became the foundation of a general principle, and could no longer be considered as a singular interposition. Thus, law and equity are in continual progression, and the former is constantly gaining ground upon the latter. Every new and extraordinary interposition is by length of time converted into an old rule; a great part of what is now strict law was formerly considered as equity, and the equitable decisions of this age will unavoidably be ranked under the strict law of the next (Professor Millar: View of the Enylish Government). But the jurisdiction, having been once acquired at a time when there was no such redress at law, is still retained by the courts of equity. The Court of Chancery was the principal court for equitable relief, but now by the amalgamation of the Courts of Justice, the jurisdiction formerly exercised by the Court of Chancery is vested in and exercised by the Chancery division of the Supreme Court. [Justice, Courts of.]