Mortgages, which were originally estates conveyed upon condition, redeemable if the condition was performed at the day, but abso lute on non-performance, the right to redeem being thereby forfeited, ewe their origin to the court of chancery ; which, acting at first, perhaps, in some case where the non-per formance was by mistake or accident, soon recognized an equitable right of redemption after the day, as a general rule, in order to relieve against the forfeiture. This became known as an equity of redemption,—a designa tion in use at the present day, although there has long been a legal right of redemption in such cases.
Relief against penalties and forfeitures also was formerly obtained only through the aid of the court of chancery.
In most of the cases which fall under this head, courts of law now exercise a concurrent jurisdiction.
10. Third, where the courts of equity admi nister equitable relief for the infraction of legal rights, in cases in which the courts of law, recognizing the right, give a remedy according to their principles, modes, and forms, but the remedy is deemed by equity in adequate to the requirements of' the case This is sometimes called the concurrent juris diction. This class embraces fraud, mistake, accident, administration,icgaeies, contribution, and cases where justice and conscience require the cancellation or reformation of instruments, Or the rescission, or the specific performance of contracts.
The courts of law relieve against fraud, mistake, and accident where a remedy can be had according to their modes and forms ; but there are many cases in which the legal remedy is inadequate for the purposes of justice.
The modes of investigation and the peculiar remedies of the courts of equity are often of the greatest importance in this class of cases.
Transfers to defeat or delay creditors; and purchases with notice of an outstanding title; come under the head of fraud.
It has been said that there is a less amount of evidence required to prove fraud, in equity, than there is at law; but the soundness of that position may well be doubted.
The court does not relieve in all cases of accident and mistake.
In many cases the circumstances are sneh as to require the cancellation or reformation of written instruments or the specific per formance of contracts, instead of damages for the breach of them.
Fourth, where the court of equity adminis ters a remedy because the relations of the parties are such that there are impediments to a legal remedy. Partnership furnishes a marked instance. Joint-tenancy and marshall ing of assets may be included.
From the nature of a partnership, there are impediments to suits at law between the several partners and the partnership in rela tion to matters involved in the partnership; and impediments of a somewhat similar cha racter exist in other cases.
Fifth, where the forms of proceeding in the courts of law are not deemed adequate to the due investigation of the particulars and de tails of the case. This class includes account, partition, dower, ascertainment of boundaries.
11. Sixth, where, from a relation of trust and confidence, or from consanguinity, the parties do not stand on equal ground in their dealings with each other : as, the relations of parent and child, guardian and ward, attorney and client, principal and agent, executor and administrator, legatees and dist ributer,s , trustee and cestui Tie trust, etc.
Seventh, where the court grant relief from considerations of public policy, because of the mischief which would result if the court did not interfere. Afarriage-brokage agreements, Contracts in restraint of trade, buying and selling public 'ices. agreements founded on corrupt considerations, usury, gaming, and contracts with expectant heirs, are of this el ass.
Cases of this and the preceding class are sometimes considered under the head of con structive fraud.
Eighth, where a party from incapacity to take care of his rights is under the special care of the court of equity, as infants, idiots, and lunatics.
This is a branch of jurisdiction of very ancient date, and of a special character, said to be founded in the prerogative of the king.
In this country the court does not, in gene ral, assume the guardianship, but exercises an extensive jurisdiction over guardians, and may hold a stranger interfering with the pro perty of an infant accountable as if he were guardian.
Ninth, where the court recognizes an obli gation on the part of a husband to make provision for the support of his wife, or to make a settlement upon her, out of the pro perty which comes to her by inheritance or otherwise.
This jurisdiction is not founded upon either trust or fraud, but is derived originally from the maxim that he who asks equity should do equity.
Tenth, where the equitable relief appropri ate to the ease consists in restraining the commission or continuance of some act of the defendant, administered by means of a writ of injunction.
Eleventh, the court aids in the procuration or preservation of evidence of the rights of a party, to be used, if necessary, in some sub sequent proceeding, the court administering no final relief'.