EQUITY, COURTS oF, ENGLAND. The administration of justice in England once embraced two great branches, usually known as common law and equity. Speaking generally, it may be said that equity is partly corrective of the common law, partly sup plementary of it; and from this it follows that, in an almost endless variety of matters, the decision of a court would vary according as it was a court of equity or a court of common law; the equity courts giving remedies in cases where the common law— though it may acknowledge a hardship—sees no wrong, and acknowledging and enforc ing rights which the common law does not admit. The anomaly of keeping up two sets of courts, acting on different principles, the one to do justice where the traditions of the other prevent it from doing justice, or its rules require it to do injustice, had long been perceived; It had been found, too, that this arrangement was inconvenient as well as anomalous. Attempts had been made to produce a gradual fusion of the con flicting systems by clothing the common-law courts to some extent with the power of resorting to the remedies and admitting the principles employed in the courts of equity; and these attempts had proved partially successful. In 1873, therefore, the legislature proceeded to make provision for completely revolutionizing the judicial system of Eng land, with a view to getting rid, at one stroke, of its inconvenient and anomalous double system of courts. This was done by the judicature act passed in that year, a measure that was Soon afterwards modified in important particulars by other acts passed in 1874 and 1875. These judicature acts did not conic into force till the first of Nov., 1875; and various rules and orders have been made in accordance with them. The judicature act merged the existing courts both of equity and common law iu one supreme court of judicature, which consisted of a high court of justice, arranged in five divisions, all of them courts of first instance. There was an appeal in a few eases to the privy coun cil; and in the other cases, to the court of appeal, and then the house of lords. In the high court there is now a chancery division, before which, at first, the greater part of the equity business requires to be brought; and it is expressly provided that where the rules of the common law conflict with those of equity, every court is to give effect to the latter. The conflict between common law and equity will henceforth he at an cud; but as the sources from which the law of the future will be derived, they will still be referred to. Until the recent change, the courts of equity were the lords justices' court, the master of the rolls' court, and the courts of the three vice-chancellors.
The origin of a separate equitable jurisdiction in England is to be found in the early adoption by the courts of common law of certain set forms for the redress of grievances, and their refusal to apply any remedy to cases which did not fall within those limits. Suitors finding that in numerous cases redress was not to be obtained in the ordinary legal tribunals, had recourse to the king as the fountain of justice, who, sitting in council, heard the complaints upon their merits without reference to the technicalities of laW. As early as the reign of Edward I. , the practice began to be adopted of dele gating to the chancellor the petitions referred to the king. In this reign, an attempt was made to devise a method whereby the common-law courts should be made the sole tribunal for the redress of grievances. By the statute of Westminster the second (13 Edw. I. c. 24), it was enacted that whenever a case occurred requiring a new writ, the chancery in which all suits took their rise) should frame a new writ to suit the case. This statute was never acted upon to the purpose intended; but in the reign of Edward III. its provisions were made use of by John Waltham, who was then chancellor, to introduce the writ of subpoena (q.v.) returnable to chancery only, whereby the lord chan cellor's court was made the forum of a large class of causes. "From this time," says Mr. Spence (Chancery Jurisdiction, i. 338), "suits by petition or bill without any pre liminary writ became a common course of procedure before the chancellor, as it had been in the council. On the petition or bill being presented, if the case called for extra
ordinary interference, a writ was issued by the command of the chancellor, but in the name of the king, by which the party complained against was summoned to appear before the court of chancery, to answer the complaint and abide by the order of the court. Thus was introduced into chancery the practice of examining upon oath the party in the cause, it practice unknown at that time to common law. The cases heard in the chancery courts were decided upon the principles of honesty, equity, and con science. The next step which tended to widen the equitable jurisdiction of the chancery courts, was the exclusion of the Roman law from the courts of common law. This was effected by a prohibition of thejudges in the reign of Richard II. One result of this prohibition was to exclude altogether from the common-law courts the question of trusts. The court of chancery at once proceeded to give a remedy in this class of cases, which has ever since formed the most important branch of the equitable jurisdiction of that court. The equitable jurisdiction of the court of chancery in matters of fraud is to be traced to the abolition of the star chamber (q. v.) in the reign of Charles I. Thus sprung up in England jurisdiction of the court of chancery as a court of equity. It is not, however, to be supposed that the system administered in courts of equity is an arbitrary one at the pleasure of the presiding judge. Such probably was the case on the first introduction of the equity jurisdiction; but as time progressed, the decisions of previous judges formed precedents for their suc cessors, and the precepts of the Roman law were much imitated as a code for the regu lation of the courts. Now, all the judges acknowledge the authority of decided cases —of the practice of the court—quite as fully as did courts of common law; and though new cases perhaps occur more frequently than they did in the courts of common law, they are dealt with as they were inn courts of common law, by the application to them, as far as possible, of accepted principles derived from the decisions of the court of chan dery, or the principles of the Roman law.
The jurisdiction of equity courts was divided under three principal heads—exclusive, concurrent, and assistant. The first consists almost entirely of the administration of trusts; the second comprises questions of fraud, of account, and also, it is said (Smith's Principles of _Equity, 217), of specific performance of agreements. This matter appears, however to fall more naturally under the assistant jurisdiction. In order to appreciate the domain of the equity courts, it must be borne in mind that common law confines its remedy usually to the awarding of damages, and to the pronouncing a judgment abso lutely in favor of either plaintiff or defendant; equity, on the other hand, goes into all the merits of the case, and will deliver a modified judgment where circumstances demand it. The judges of the supreme court now all administer equity as well as law in the same manner as the court of session in Scotland had been accustomed to do from the beginning. In whichever division of the high court an action commences, that division must dispose of all the issues raised, and pursue these to final judgment. It is true one of the divisions is still called the chancery division, and actions which used to be begun in equity courts now usually begin there still. But there is a.power in such division to send an issue of fact to be decided on circuit, and after trial the division resumes its jurisdiction and works it out. The chancery division consists of judges chosen from the bar generally; and the court of appeal, which-sits two divisions, con sists also of judges some versed in chancery business, and some versed in common-law business. The lord chancellor since 1875 has confined his sittings to the house of lords, and occasionally to the court of appeal and to the privy council, of all of which courts he is ex officio a member.