Mortgages, which were originally estates conveyed upon condition, redeemable if the condition were performed at the day, but absolute on non-performance, the right to re deem being thereby forfeited, owe their ori gin, in the modern conception of the term, to the court of chancery; which, acting at first, perhaps, in some cases where the non performance was by mistake or accident, soon recognized an equitable right of re demption after the day, as a general rule, in order to relieve against the forfeiture. This became known as an equity of redemption,— a designation, in use at the present day, al though 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 concur rent jurisdiction.
Third, where the courts of equity admin ister equitable relief for the infraction of legal rights, in cases in which the courts of law, recognizing the right, give a remedy ac cording to their principles, modes, and forms, but the remedy is deemed by equity inade quate to the requirements of the case. This is sometimes called the concurrent jurisdic tion. This class embraces fraud, mistake, accident, administration, legacies, contribu tion, and cases where justice and conscience require the cancellation, or reformation of instruments, or the rescission, or the specific performance of contracts. (See these several titles.) The adequate remedy at law to oust equi table jurisdiction must be as certain, prompt and efficient to attain the ends of justice as the remedy in equity; Boyce v. Grundy, 3 Pet. (U. S.) 210, 7 L. Ed. 055; Williams v. Neely, 134 Fed. 1, 67 C. C. A. 171, 69 L. R. A. 232; Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, 76 C. C. A. 516, 8 Ann. Cas. 660; for example, an action requiring submission to jury of matters requiring ac counting is insufficient ; Castle Creek Water Co. v. City of Aspen, 146 Fed. 8, 76 C. C. A. 171, 8 Ann. Cas. 660; Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1, 84 C. C. A. 167; and go, for another instance, if damages for breach of contract are too uncertain to be assessed the failure to provide for liquidated damages does not give an equitable cause for action; Utz v. Wolf, 159 Fed. 696, 86 C. C. A. 564.
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 pecu liar remedies of the courts of equity are of ten of the greatest importance in this class of cases.
Transfers to defeat or delay creditors, and purchases with notice of an outstanding ti tle, 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 such 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 admin isters 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 mar shalling of assets may be included. (See these titles.) From the nature of a partnership, there are impediments to suits at law between the several partners and the partnership in relation to matters involved in the partner ship ; and impediments of a somewhat sim ilar character 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 details of the case. This class includes account, partition, dower, ascertainment of boundaries.
Moth, where, from a relation of trust and confidence, or from consanguinity, the par ties do not stand on equal ground in their dealings with each other : as, the relations of parent and child, guardian and ward, at torney and client, principal and agent, emecu tor or administrator and legatees or dis tributees, trustee and cestui que 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 Marriage-brokage agree ments, contracts in restraint of trade, buying and selling public agreements founded on corrupt considerations, usury, gaining, and contracts with empectant heirs, are ' of this class.
Many cases of this and the preceding class are sometimes considered under the head of constructive 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, 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 gen eral, assume the guardianship, but exercises an extensive jurisdiction over guardians, and may hold a stranger interfering with the property of an infant accountable as if he were guardian.
Ninth, where the court recognizes an ob ligation 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 prop erty which comes to her by inheritance or otherwise.
This jurisdiction is not founded upon ei ther trust or fraud, but is derived originally from the maxim that he who asks equity should do equity.
Tenth, where the equitable relief appro priate to the case 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 procura tion or preservation of evidence of the rights of a party, to he used, if necessary, in some subsequent proceeding, the court administer ing no final relief.
See a full note as* to equity jurisdiction in 19 Am. L. Reg. N. S. 563.