... ... 2 & 3 Anne, c. 4, Registration of Deeds 41 Geo. 3, c. 109, Inclosure Act 42 Geo. 3, c. 116, Redemption of Land Tax 9 Geo. 4, c. 94, Resignation Bonds ... ... 242, 255, 287, 288, 326, 383 ... ... ... ... 277, 335 270 211 272, 310, 335 ... ... 337, 376, 377 257 301 397 .. 397 375 318 325 221 397 360 215 5 & 6 Will. 4, c. 76, Dispositions of Lands by Corporations 6 & 7 Will. 4, c. 71, Tithes Commutation Act c. 104, Dispositions of Lands by Corporations 1 Vict. c. 22, Registration of Births ... 194, 213, 215 189, 195, 229, 234, 235 398 239, 241 219, 293, 386, 389 294 218, 220 294 ... c. 108, Mines on Glebe Lands 8 Vict. c. 18, Lands Clauses Act ... ... 195, 276, 277, 309 276, 277, 310 196 ... ... 228, 341 248 ... 403 8 & 9 Vict. c. 106, Real Property Amendment Act, 202, 204, 209, 253, 306, 317, 14 & 15 Vict. c. 25, Holding over in Lieu of Emblements 15 & 16 Vict. c. 24, Wills Act Amendment Act ... 211, 250, 251, 254, 262, 303, 304, 309, 334, 352, 354, 370, 387, 391, 393, 394 c. 61, Divorce Act Amendment 23 & 24 Vict. c. 38, Act to amend the Law of Property ... 351 250, 276, 308, 410, 392 250 c. 126, Common Law Procedure Act, 1860 c. 145, Lord Cranworth's Act, 270, 272, 303, 342, 348, 352, 369, 393 24 Vict. c. 9, Charities ... ... 376 378 ... 210, 258, 272, 310, 327, 329, 335 342 195, 264 277 ... 360 394 ... ... 180 288, 293 267, 268, 315, 380 199, 262, 333, 403 ... 316 208 295, 376 : 403 ... 399 294 ... 352 s. 25, (4) s. 25, (5) s. 25, (6) 37 & 38 Vict. c. 37, Powers of Appointment.. c. 57, Real Property Limitation Act 192, 194, 213, 215, 216, 263, ... c. 59, Married Women's Property Act Amendment, 1874 ... 265, 297 231 ... 245, 314 c. 78, Vendor and Purchaser Act 263, 265, 267, 290, 297, 298, 300, 303, 309, 313, 335, 337 ...257, 258, 263, 272, 302, 315, 327, 335 246 229, 244 38 & 39 Vict. c. 87, Land Transfer Act c. 33, Contingent Remainders Act 41 Vict. c. 19, Divorce ... ... ... 44 & 45 Vict. c. 41, Conveyancing and Law of Property Act 289, 300, 303, 308, 313 315 272, 273, 307, 330, 331, 395 308, 309, 320 250, 253 266, 267, 270, 315, 316, 365, 367 ... ... ... 45 & 46 Vict. c. 38, Settled Land Act... 244, 334 39, Conveyancing Act, 1882, 234, 253, 254, 316, 333, 364, 374 407 EQUITY. (a) IN MATTERS AS ADMINISTERED UNDER THE USUAL JURISDICTION OF THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE. GENERAL NATURE AND OBJECTS OF EQUITY Question.-How might "Equity" be defined? Answer.-Equity might be defined to be a portion of justice, or natural equity, not embodied in legislative enactments or in the rules of the common law, yet modified with a due regard thereto, and administered where the courts of law could not, or originally did not, clearly afford any or adequate relief, at least not without circuity of action or multiplicity of suits, or where they could not do complete justice between the parties interested: (Sm. Man. sects. 1-19.) Q.-Explain the origin of equity. A.-The origin of equity is involved in some obscurity, but there seems little doubt that the Court of Chancery was called into existence to supply the defects of the common law, and to give relief where the common law did not or could not; the application for relief being made to the King in council, or to the King himself, and latterly to the Lord Chancellor, as keeper of the King's (or Queen's) conscience: (see Haynes' Outl. Eq. 12, 43, 45; Hallam's Const. Hist. Eng. 344, &c., 9th edit. vol. 1.) Q.-State the distinction between law and equity. A.—It principally consisted in the difference of the subjects over which they exercised jurisdiction, in the kind of relief they administered, and their mode of proceeding: (3 St. C. 467, 8th edit.) (b) Q-Was there any, and what, difference between the general principles by which a court of equity was guided and those of a court of law? (a) All Divisions of the High Court are now to administer equity (1873 Act, s. 24), and where there is any conflict between the rules of law and equity the latter are to prevail (lb. s. 25, sub-s. 11.) (b) For, as to the first distinction, courts of law adjudicated in rem upon titles completed by actual conveyance, and ruled accordingly; but courts of equity adjudicated in personam. As to the second, courts of equity decreed the specific performance of mere executory contracts, &c.; but law, even as altered (see Benson v. Paull, 27 L. T. Rep. 78), would only award damages for the non-performance: (see Hallilay's Articled Clerk's Handbook, 37 et seq.) As to the third distinction, they differed in the mode of bringing the point for decision to issue, and, to a great extent, in their mode of proof. A.-It was a popular mistake that an equity judge decided according to an unbounded discretion, without any regard to strict rules. But there were certain principles upon which courts of equity acted, which were very well settled. The cases which occurred were various, but they were decided on fixed principles. Courts of equity had, in this respect, no more discretionary power than courts of law: (St. Eq. S$ 18, 19, 20.) Q.-From whence were the principles of equity as administered by our Courts of Chancery derived, and how did they find their way here so as to run together and to control the common law in the administration of justice? A. From the Roman civil law, they found their way here through the ecclesiastics who formed the principal educated class of the period, and were adopted by the Chancellors (who were invariably ecclesiastics till Henry VIII.'s reign) in exercising their jurisdiction: (see Goldsmith's Equity, part I.) Q.-In what respects did their introduction control the common law? Did the judges ceases to administer law as before with all its defects and shortcomings and did they yield a willing obedience to what was then considered to be an usurped power? Was there not a sharp and longprotracted struggle for supremacy between the "two systems," and in what reign did it cease and what was the result? A.-The Court of Chancery mitigated the rigours of the common law and supplied its defects, and gave relief where it did not or could not. The common law judges did not cease to administer law as before, or give a willing obedience, and the struggle did not cease until 1616, when James I., after a long conflict between Lord Coke and Lord Ellesmere, directed that the Court of Equity had power to set aside a judgment obtained by fraud at common law: (see 1 Hallam's Const. Hist. 346, 9th edit.) Q. How happened it that, instead of following the example at Rome in a similar case, when the law of the Twelve Tables became interwoven with and absorbed by the Pretorian edicts, together forming one system of law, our Courts of Equity continued to sit in distinct courts, administering justice separately from the common law courts, and how have the two systems been amalgamated? A. This resulted from the attachment of the nation to the old common law of the realm, but equity gradually grew in importance and its advantages were generally recognised. The antagonism of the two courts naturally prevented any fusion. The Judicature Act, 1873 (36 & 37 Vict. c. 66), amended by that of 1875 (38 & 39 Vict. c. 77), has now fused both courts, and enacted a similarity of forms and procedure, and mode of taking evidence, but the Chancery and Common Law divisions are kept distinct, and a great deal of the exclusive jurisdiction is preserved, but in case of conflict between the rules of law and equity those of the latter are to prevail. Q.-Before the jurisdiction of the court was settled, what were the limits placed to its power? Mention some of the cases from the Year Books in which its interposition was applied for, by way of illustration. |