EQUITY, quasi cequalitas, is generally understood, in law, 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 mast 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. Tiler! 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 parties 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.
Ili equity, however, the plaintiff by filing his bill waves the objections, and submits 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 pf sub pama, 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 I. 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 ty, and so have most courts of peculiar ju risdiction.