will not lie at common law for the purpose of obtaining some relief or remedy to which the party was entitled, but which he neglected to present before the rendition of the previous judgment.

Courts of equity exercise much greater powers for the purpose of modifying their decrees, or for their impeachment when they are not such as justice and equity would sustain.

Extension of remedies by common law. The extension of remedies by the common law is not by devising new rules or principles, but by the application of existing rules to new combinations of facts, or to new cases which ought to be included in the settled rule. And, in the multiplicity of reported cases, it is a surprising fact that so many of them turned upon the question whether the conceded rule had been properly applied in the particular case, instead of the point whether there was such a rule as that claimed to be law. Courts of law do not usually claim or exercise the power of devising or creating new principles of law, but limit themselves to the administration or application of such principles as are recognized as the law of the land. And yet, such is the extent, variety and complication of human affairs that require to be settled by the courts, that it will be found that the simplest rule has been applied in a great number of cases which differ widely in the facts of each case; and it may seem in some instances as though a new rule had been adopted and enforced in some of them. Courts of common law, in a great variety of cases, adopt the most enlarged and liberal principles of decision; and, indeed, often proceed, as far as the nature of the rights and remedies, which they are called upon to administer, will permit, upon the same doctrines as courts of equity. This is especially true, in regard to cases involving the application of the law of nations, and of commercial and maritime law and usages, and even of foreign municipal law. 1 Story's Eq. Jur., § 34. In matters of mere practice the common law courts possess and exercise greater powers in the adoption of ordinary rules of practice than in any other respect; and practice, it must be remembered, is but the application of those remedies which the law provides by its general rules.

Exceptions to general legal rules. When a rule of law has become well settled, the courts cannot properly disregard it. And in the application of this principle, it occasionally happens that a general rule, if strictly enforced, would be productive of hardship or injustice in some classes of cases. But it is to be remembered that an inconvenient or unjust rule of law may be remedied by the legislature; and, until that is done, it is best, as a general rule, to abide by the adjudged cases; for an attempt to change the rule by a judicial decision tends to unsettle the law, and it has been said by an able judge that "Hard cases make bad law." And the general practice is, to apply and enforce well-settled rules, even when they cause a hardship in some particular case. Vermilya v. Austin, 2 E. D. Smith, 208; Beaulieu v. Finglam, cited in argument in Reedie v. London and North Western R. R. Co., 4 Exch. 251; Freeman v. Tranch, 14 Eng. Law & Eq. 224, 227; 12 C. B. 406; Supervisors of Onondaga v. Briggs, 2 Denio, 32.

There are instances, however, in which a subsequent case may resemble a former one in many of its principal facts, and yet it may also contain some important facts or elements which will bear upon the decision, and when this is the case, courts frequently act upon the principle of distinguishing the latter case from the former; and by that means are enabled to render such a decision as the justice of the case may require. Quinn v. Lloyd, 41 N. Y. (2 Hand) 353. But, while it is proper to act upon a substantial distinction, the courts cannot properly carry the rule so far as to act upon unsubstantial and shadowy distinctions which do not affect the merits of the case. Such distinctions have properly been termed by the courts nice, subtle, refined, thin, slight or slender, and they have frequently refused to act upon them; and yet, if the courts adopt or make a distinction, the decision is to be followed like any other established rule. It is not desirable to multiply distinctions, as they cannot fail to introduce uncertainty into the law, and in their subsequent applications to other cases may cause as much hardship as would have resulted from enforcement of the general rule.

Distinctions in the decision of causes are not always founded upon the principle that the court does not approve of the rule laid down in the previous case; for such decision may be fully concurred in, and yet the facts of the subsequent case may be so different in some particulars as to require the decision to be founded upon or modified by them.

Tries questions of fact by a jury. In common-law actions the right of having questions of fact tried and settled by the verdict of a jury is as much fixed as are the rights of the parties clear under the rules of the law.

regulate its decisions, and which are not recognised by a court of law as legal doctrines, and to show the character of the relief which a court of equity gives as distinguished from that which is obtained in a court of common law, will be our next task. (447) It is, however, one of great difficulty, because we are necessarily precluded from giving that complete and exhaustive account of the doctrines of equitable jurisprudence, which alone will completely separate and distinguish those doctrines on the one side from the more rigid rules adopted in common law, and on the other from the principles of natural morality, which must be left to the enforcement of the conscience alone, such as charity, or gratitude.

To explain the origin of this mode of trial, or to trace its history, or explain its advan. tages, is not the present object; but rather to point out the distinction between this method of trial and that adopted in courts of equity which, as a general rule, dispense with the aid of juries, and try questions of fact before the court itself, upon such evidence as may be proper. And when the nature of the two systems of remedies is considered, the propriety of the practice in each case will be evident. In simple direct issues the verdict of a jury would be convenient, safe, and satisfactory. But, in a case involving numerous issues, of an intricate nature, requiring many different special directions, such a trial would be a poor substitute for the careful, elaborate and equitable relief which may be awarded by a profound and conscientious judge who takes time to survey the whole case even to its minutest details, and then pronounces a decree which guards all the rights of both parties. A trial by a referee is not overlooked, but, as it is a mere substitute for a trial by jury, it does not require notice in this place.

Legal remedies may exist, and yet be insufficient. There are many cases in which the common-law courts furnish a partial though defective remedy, while courts of equity afford the fullest relief. To explain fully the particulars in which such relief may or may not be had at law, or to enumerate all the instances in which partial relief is attainable, is not to be expected in this place. A general synopsis of some of the cases will be convenient as an illustration of the defects mentioned.

At common law a corporation might have a good cause of action against one of its members, and yet, at law, no action could be brought upon it, while equity would give full relief. The same rule applies to the case of executors or partners. Cole v. Reynolds, 18 N. Y. (4 Smith) 74; Gridley v. Gridley, 24 N. Y. (10 Smith) 135, 136. See Denman v. Prince, 40 Barb. 218, 217, 218, 219; Kingsland v. Braisted, 2 Lans. 17, 20. So in replevin, if the property claimed could not be described with the requisite certainty, a court of equity alone could give the desired aid. An action of account is a common-law remedy, but if the taking of an account is important, the powers of a court of equity are far more desirable than the common-law action.

A set-off could not be made available at common law, but for a long time past this defect has been remedied by the statute. Before these statutes a court of equity alone was the proper forum to resort to in such cases.

An action for the recovery of dower is given by the common law, but there were superior advantages for the widow if she applied to a court of equity, in her comparatively helpless condition, and for the advantage of being better able to ascertain in what estates she had a right of dower. The same principles were applicable to cases in partition, or in setting out boundaries. These, and other similar cases which might be mentioned, seem to show that many remedies are common to both courts of law and of equity, and that each court has some advantages over the other in the administration of the law; and if this outline shall serve to render the subject more clear to the student, the object in view will have been attained.

(447) The general features of legal actions having been noticed in the last note, the subject of equitable actions will be considered.

Courts of equity act on the person independently of damages as a remedy. There is no feature of relief or remedy afforded by the courts of a higher value than that of acting directly upon the person of the party who would deliberately violate his contracts, or invade

the possessions of another. The relief given by a court of equity may be described as of a positive character, giving the specific thing which the parties are entitled to, while actions at law, with few exceptions, give only the negative remedy of compensation by damages for a deprivation or violation of the true right.

Wherever possible, equity takes care that a right shall be actually enjoyed, and with this view will interfere to prevent a violation of that right. A court of law will not interfere till the violation be effected. It, for instance, will, when a breach of covenant in a lease or in a contract between land owners has been committed, give damages for the breach; but a court of equity will do no more-it will anticipate the event, and restrain a person who merely shows an intention to break his covenants. Or, to take another example illustrating the beneficial result obtained by such ready interference, damages will be given in the one court if a man has been carrying on a trade in some particular locality in violation of his contract with another man not to do so. But these damages, which will only be given for past acts of trading, are, it may be, of small value as a remedy compared with the effectual relief which the other court gives by prohibiting the trade, on pain of imprison. The two kinds of justice which may be obtained, the one strictly remedial, the other preventive, in respect of the violation of continuing rights, are clearly different in kind; one is legal, the other equitable; and neither of the two courts will usurp the func tions of the other.

ment.

A clear illustration of the advantages of an equitable remedy over that afforded by a common-law court may be seen in the case of compelling a party to convey lands which are situated in another State. Gardner v. Ogden, 22 N. Y. (8 Smith) 327; Fenner v. Sanborn, 37 Barb. 610; Bailey v. Ryder, 10 N. Y. (6 Seld.) 363; Newton v. Bronson, 13 N. Y. (3 Kern.) 587. And yet a common-law action will not lie here for a trespass upon real estate lying in that State. Watts v. Kinney, 6 Hill, 82; Hurd v. Miller, 2 Hilt. 540; Mott v. Coddington, 1 Abb. N. S. 290; 1 Rob. 267; Wait's Code, 24, 25, 26.

In such case the court has no jurisdiction, unless the person to whom its orders or decrees are addressed is within the reach of the court or amenable to its jurisdiction. The person must be not only within the reach of the court as to locality, but he must have such a character as shall render him personally amenable to the jurisdiction.

The fact that the orders and decrees of the court operate immediately upon persons has had the effect of giving the court a very extensive jurisdiction. As a consequence of this rule, the court may exercise jurisdiction quite independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the court. In exercising the jurisdiction, the court does not lay any claim to the exercise of judicial or administrative rights in a foreign country, but proceeds solely on the circumstance that the person to whom the order or decree is addressed is within reach of the court.

Equity compels the performance of acts specifically. Another branch of the same kind of positive relief is the power which the court exercises of compelling the specific performance of agreements. A man may be indirectly compelled to carry out his contract by the fear of being mulcted in damages by a court of law, in the event of his failing to do so; but another and often a desirable mode, is to insist upon his performing the duty which he owes under the contract by putting him in prison till he does so.

Rights which are recognized and protected, and wrongs which are redressed by commonlaw courts, are called legal rights and legal injuries; rights which are recognized and protected, and wrongs which are redressed by courts of equity, are called equitable rights and equitable injuries. The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity.

The distinction between courts of common law and courts of equity will be better understood by considering the different natures of the rights they are designed to recognize and protect, the different natures of the remedies which they apply, and the different natures of the forms and modes of proceeding which they adopt to accomplish their respective ends.

In all strictly common-law courts, there are certain prescribed forms of action to which the party must resort to furnish him a remedy; and, if there be no prescribed form to reach such a case, he is remediless; for these courts do not entertain jurisdiction except in certain

actions, and they give relief according to the particular exigency of such actions, and not otherwise. In those actions none but a general and unqualified judgment can be given, which is either for the plaintiff or for the defendant, without any adaptation of it to particular circumstances.

There are, however, many cases in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrangements, will not do entire justice to either party. Some modifications of the rights of both parties may be required; some restraints on the one side or on the other, or, perhaps, on both sides; some adjustments involving reciprocal obligations, or duties; some compensatory or preliminary, or concurrent proceedings to fix, control or equalize rights; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights, or the redress of injuries. In all these cases, courts of common law cannot give the desired relief. They have no forms of remedy adapted to the objects. They can entertain suits only in a prescribed form, and they can give a general judgment only in the prescribed form. Hence by their very character and organization they are incapable of furnishing the remedy which the mutual rights and relative situations of the parties, under the circumstances, positively require.

But courts of equity are not so restrained; although they have prescribed forms of proceeding, the latter are flexible, and may be suited to the different postures of cases. They may adjust their decrees so as to meet most, if not all, of these exigencies; and they may vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities and the real and substantial rights of all the parties. Nay, more; they can bring before them all parties interested in the subject-matter, and adjust the rights of all, however numerous; whereas courts of common law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons may have the deepest interest in the event of the suit. So that one of the most striking and distinctive features of courts of equity is, that they can adapt their decrees to all the varieties of circumstances which may arise, and adjust them to all the peculiar rights of all the parties in interest; whereas courts of common law are bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintiff, or for the defendant.

Equity restrains the commission of wrongful acts. Courts of equity possess a power of restraining the person in relation to particular acts, which is not only a useful but most efficient remedy. The principle upon which the court acts is, that whenever damage is caused or threatened to property, admitted or legally adjudged to belong to the plaintiff, by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, the inadequacy of their remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong. And though damages cannot be given in equity for the plaintiff's loss, yet, in some cases, if the defendant has made a profit, he will be decreed to account.

The equity is not confined in principle to any particular acts; those in respect of which it is most commonly enforced are five in number, viz.: waste, destruction, trespass, nuisance, infringement of patent right, and infringement of copyright.

There are three incidents connected with this equity which ought to be mentioned. The equity attaches only on an admitted or legally adjudged right in the plaintiff, admitted or legally adjudged to be infringed by the defendant; it prohibits the continuance as well as the commission of a wrong; and it extends to an account of the defendant's profit.

The relief afforded in equity is either remedial or preventive. The court either grants positive and affirmative relief, or restrains the doing of acts which are against equity and conscience. In giving remedial relief, the court usually proceeds by decree, while preventive relief is administered by injunction.

Equity generally acts without the aid of a jury. The right to trial by jury in common-law actions, as a matter of course and of right, does not exist in courts of equity. It is one of the fundamental rules of equity practice that questions of fact are to be decided by the court without the intervention of a jury. And from the nature of the issues to be tried, and the peculiar equities to be administered, this mode of trial is an advantageous one. In disposing of causes, a court of equity does not always render a final decision at once, as upon the trial of a cause by a jury; for, there may be numerous issues or facts to be investigated, before a final decree can be properly made. If a preliminary decree is proper, it is usually in such cases as the following: 1. That in the course of the suit a dispute has arisen

on a matter of law, which the court is unwilling to decide; 2. That a similar dispute has arisen on a matter of fact; 3. That the equity claimed is founded on an alleged legal right, the decision of which the court of chancery declines to assume; and, 4. That there are matters to be investigated which, although within the province of the court, are such as the presiding judge cannot at the hearing effectually deal with. Adams' Eq. 375. To obviate these impediments the preliminary decree directs: 1. A case for a court of law; 2. An issue for a jury; 3. An action at law, to be determined in the ordinary course; or, 4. A reference to one of the masters of the court, to acquire and impart to it the necessary information. Ib. Each of these methods of inquiry may be also adopted on interlocutory applications by motion or petition. Ib.

Relief granted or refused as justice requires. The principles upon which the jurisdiction of courts of equity proceed are these: conscience, good faith, honesty and equity. And, in the exercise of its powers, one general maxim in early times was, that chancery would take cognizance of such cases only as were not remediable by the common law. But this jurisdiction was not merely suppletory, it was also corrective. In some cases it gave relief where none could be had at law; and in other cases it interfered to relieve against proceedings taken in courts of common law.

In equity, the term conscience originally embraced those obligations which result when one person is placed in any situation as regards another, that gives the one a right to expect, on the part of the other, the exercise of good faith toward him. The determination of cases according to equity, embraced all those instances in which a party, who has not committed any act contrary to good faith or conscience, but who may yet, according to the strict rules of positive law (which may, in their general application, be founded on natural justice), or by the silence of the law in not providing at all for some particular case, have an advantage which it is contrary to the principles of equity that he should enforce or retain. In such cases, a resort was had to the general principles of equity, in the sense of natural justice, which are antecedent to all positive law. In proceedings thus founded upon right, justice and conscience, the court took cognizance of cases in which there was no remedy at law; and it might also decline to interfere when the claim made was such that a court of equity could not, according to its principles, enforce it; and, as a result of this system, the court could in many cases grant or refuse the relief sought, according as justice might dictate.

But a court of equity will not in any case allow itself to be made an instrument of injustice. And where a court of equity by its interposition to prevent an act rightfully or wrongfully intended, has caused the loss of a remedy at law, this court will give him a remedy equivalent to that from which the interposition of the court debarred him. Pulteney v. Warren, 6 Ves. 73; Brown v. Newall, 2 M. & C. 558, 572.

Grants relief where the law does not. Courts of equity proceed upon the principle that they will grant relief in those cases in which it ought to be granted according to equity, but where no remedy is given by the common law. This omission may arise in those cases in which the rules of the common law have made no provision for a case like the one presented for adjudication; or it may be that the rules of practice of the courts of law do not meet the requirements of the particular case, and thus fail to give any remedy, or, a very inadequate one.

The remedial process, the pleadings and practice of courts of equity, are all so framed that the party may obtain every relief consistent with equitable principles. And the final remedial process may be so varied as to meet the requirements of these equities, in those cases in which the jurisdiction of the court exists, by commanding what is right, and forbidding what is wrong, and then enforcing the decree made. A court of equity has jurisdiction in cases of rights, recognized and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the courts of common law. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time, and in future; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law; it is sometimes exclusive of it; and it is sometimes auxiliary to it.