EQUITY. The term equity has two meanings, one profes sional, the other popular. When lawyers speak of equity they are thinking merely of that part of the law of England which is de rived not from the custom of the realm nor the enactments of parliament but from the decisions of the old court of chancery. On the other hand, when the man in the street talks of equity he is thinking of ideal justice which is not regulated by the law and may be even contrary to the law. The popular meaning of equity is that which it originally bore in the court of chancery.
Sir Henry Maine has classified the agencies by which primitive law has been adapted to the requirements of an advancing society and an improving morality according to the order in which these agencies most forcibly exert their influence. First come fictions by which unavowed reforms of the primitive law are brought about either by the courts applying the old law on the assumption that a state of facts exists which in fact does not exist or by their so interpreting the old law as to make it apply to matters it was never intended to cover. The common law courts relied much on fictions of both kinds. As an example of the first, down to the Judicature Act of 1873, the law was that a trespass was not actionable unless it was perpetrated vi et armis. Whether the trespass was committed vi et armis or not, the common law courts allowed the plaintiff to plead that it was and refused to let the defendant call evidence to show that it was not. As an ex ample of the second, the Statute in consimili casu, which was intended by the legislature merely to enable courts to give remedies for new forms of tort, was so applied as to give remedies for promises based on valuable consideration by treating breaches of these as torts. Hence the whole law of simple contracts.
The common law courts never went beyond fictions as a means of reforming the law ; the court of chancery never appealed to them. It appealed openly to abstract justice. The king, as pater patriae, had a duty to see that none of his subjects was denied a remedy where conscience required that he should have one, and this duty he delegated to his chancellor who became the keeper of the king's conscience and kept that conscience clean by insist ing that every litigant coming before him should act as a con scientious man should. Hence the maxim that the king's bench was a court of law but the court of chancery a court of conscience.
For generations equity consisted in whatever the chancellor or the masters of the rolls thought just in any particular case. No attention was paid to precedent or to principle; even in the time of the Stuarts, nobody thought a knowledge of law necessary for a chancellor. Sir Thomas More was the first professional lawyer chancellor. His successors were sometimes lawyers, sometimes priests and sometimes laymen. The last layman chancellor was the famous earl of Shaftesbury in the reign of Charles II.
A change, however, was impending. Before Shaftesbury's time young practitioners in the chancery had begun to report the court's decisions. As soon as this took place old practitioners began to cite to chancellor all the decisions of previous chancellors which favoured the decision they desired. When the facts were identical, the chancellor felt bound, as a rule, to follow the decisions of his predecessors. As lawyers be came the only chancellors, the practice grew. Lord Nottingham in William's reign observed this practice; Lord Hardwicke, a genera tion later, established it as binding and Lord Eldon in his long chancellorship consolidated it as part of the law of the land. Af ter the Eldon era equity may be said to have been hardened into a set of principles as unalterable by subsequent decisions as those of the common law.
A legal remedy is given ex debito justitiae; an equitable remedy is given by grace of the king. When a plaintiff asks the court to grant him his legal remedy he is demanding his legal right—the right which the law gives him. If he can prove facts which establish his right to the remedy, the court has no option but to give it. But the court is never obliged to give an equitable remedy. There the plaintiff (formerly called the suitor or petitioner) prays for a remedy he is not by law entitled to, and he is given it by grace of the king in obedience to conscience. The court before granting an equitable remedy enquires into the conduct of all parties to the action, and where it is not satisfied that justice re quires it, refuses the remedy or grants it subject to conditions. Thus equitable remedies are always in the discretion of the court.
The principles regulating the ex ercise of this discretion are now fairly well settled. One is that "he who seeks equity must do equity." Thus a debtor who seeks to recover securities which he has deposited with an unregistered money-lender to cover a loan must repay the loan, though it is a bad debt in law, before the court will assist him. Again, "he who comes into equity must come with clean hands." Thus a trustee who has in breach of trust, though honestly, paid trust money to one not entitled to it cannot recover the money back, as he would have to rely on what was his own breach of trust. Again, "delay defeats equity." The Statutes of Limitation do not prima facie apply to actions for equitable remedies, but if a person knowing he has a claim against another unduly delays enforcing his claim, the court will refuse to entertain his action. Again, the remedy of the common law for breaches of contract or torts was damages and damages mean compensation. This did not appear to equity to be satisfactory. It held that A must purge his conscience in the first case by carrying out his promise specifically (e.g., to sell land) and in the second case by surrendering all profits he made through his wrong (e.g., breach of copyright). In other words, the equi table remedies were specific performance of the contract and restitution of the wrongful gains. Again, common law never gave a remedy till a wrong was done. Equity was always willing, where possible, to prevent a defendant soiling his conscience by doing what was wrong. Sometimes it refused to interfere unless the person complaining did not apply to it before the wrong was done. Thus A has an ancient light over B's land. B begins to build on his land on a plan that if completed must obstruct A's lights. A can claim damages at law only after his light is actually obstructed, but ordinarily if he wants his equitable remedy by injunction he must apply for it before obstruction has taken place (see Stanley v. Shrewsbury, L.R. 19 Equity 616). Thus, often the equitable remedy comes to an end as soon as the legal remedy begins. Under Lord Cairns' Act, equity can now give equitable damages for a contemplated wrong. (See Leeds Industrial Society Ltd. v. Slack, 1924, A.C., 1924.) It used to be said that equity followed the law, which amounted to no more than this : that it followed the law when it saw no good reason not to do so. This maxim seems on the way to being re versed. Recent legislation has been all tending towards making the law follow equity. Thus now all interests in lands, save fee simples and absolute leases, are declared to be equitable. More over, the old notion of equity as justice independent of law is returning in the shape of judicial discretions. To take one ex ample : formerly a restraint upon anticipation prevented a married woman or anyone else from alienating her separate property dur ing coverture. Whether it does so now or not depends on the dis cretion of the court. How that discretion will be exercised in any particular case no counsel can tell. Selden complained in his time that what was equity depended on the length of the chancellor's foot. It seems that before long what is law will depend on the state of the judge's digestion. See CHANCERY. (J. A. Si.)
