A.-Before the jurisdiction of the court was settled, its limits in administering relief were almost according to the conscience of the Chancellor, as was remarked by Selden. The cases that occurred at this time were for assaults and trespasses, and a variety of outrages which were cognisable at common law, but for which the party complaining was unable to obtain redress in consequence of the maintenance and protection afforded to his adversary by some powerful baron or by the sheriff, or by some officer of the county in which they occurred: (Calend. Ch. of Eliz.; and see Year Book, 4 Hen. 7.) (a)

Q. How did it happen that equity became administered separately upon principles and rules, some of which conflicted with those of the common law? And what does the word equity in legal phrase import?

A. It was found from time to time that the rules of the common law were too harsh or strict, and they were consequently modified by equity, and made more in accordance with natural or real justice. Equity was thus said to " temper the harshness of the common law." "Equity" is defined ante, p. 407 (Sm. Man. sect. 2, &c.)

Q.-Who were the distinguished Chancellors who subsequently reduced the system into order, and to whom above all is the greatest share of merit ascribed in this respect?

A.-These Chancellors were: Lord Bacon, who, by his celebrated ordinances for the regulation of Chancery, gave a systematical character to the business of the court. Then followed Sir H. Finch (afterwards Earl of Nottingham), who, during the nine years he presided in the court, built up a system of jurisprudence and jurisdiction upon wide and rational foundations, which served as a model for succeeding judges, and gave a new character to the court; hence he has been styled the father of equity." Lord Hardwicke was the next Chancellor who completed the structure begun and planned by Lord Nottingham: (see St. Eq. S$ 51, 52.)

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Q. What was the rule of interpreting the statute law in equity? and did it differ from that of common law? (b)

A.-There was not a single rule of interpreting laws, whether equitably or strictly, that was not equally used by the judges in the courts both of law and equity. True, a case was sometimes said to fall within the equity, or, at others, to be out of the equity, of an Act of Parliament. But here, by equity was meant nothing but the sound interpretation of the law. Each endeavoured to fix and adopt the true sense of the law in question; neither could enlarge, diminish, or alter that sense in a single tittle : (2 St. C. 70, 8th edit.; St. Eq. § 15.)

Q. What were the peculiar objects of jurisdiction of courts of equity? Give exempli gratiâ instances under each head. (c)

A. They were said to be the following: (1) accident, as where public

(a) We have no doubt the question is taken from Haynes' Outlines of Equity, to which the student is referred.

(b) Also put in this form: With what latitude did equity construe statute law? (c) The following question is answered in the above chapter: Give a short outline of the peculiar powers and duties of a court of equity.

stock directed by will to be set apart to answer an annuity was reduced by Act of Parliament, equity would interfere by decreeing the deficiency to be made up against the residuary legatees, on the ground of accident; (2) fraud, as where a trustee committed a breach of trust; and (3) trusts, as where a use was engrafted on a use which the Statute of Uses could not operate upon, but was a mere benefit or trust in equity: (Sm. Man. sect. 62 et seq.)

Q. What are the three principal cases in which the Court of Chancery granted relief, as stated by Lord Coke?

A. They were "covin, accident, and breach of confidence:" (see 4 Inst. 84.)

Q.-Mention some of the principal heads of the court's equitable jurisdiction.

A.--They were accident, mistake, fraud, legacies, donations mortis causâ, trusts and trustees, specific performance, account, administration, mortgages, apportionment and contribution, partnership, election, satisfaction, partition, interpleader, injunction, ne exeat regno, infants, lunatics, and married women, discovery, &c.: (Sm. Man.) (a)

Q. What were the general heads of remedial equity?

A.-Mr. Smith gives the three following under the head of remedial equity accident, mistake, and fraud: (Sm. Man. tit. 1, chaps. 1-4.)

Q.-State some of the instances within the statutory jurisdiction of a court of equity as distinguished from its original jurisdiction.

A.-The court of equity had original jurisdiction in uses, trusts, accident, fraud, the guardianship of persons under disability, &c., while a few of the instances of its statutory jurisdiction were:-applications under the Settled Estates Act; the power of trustees to pay money into court under 10 & 11 Vict. c. 96; of making vesting orders and appointing new trustees under the Trustee Act of 1850; relieving tenants from forfeiting leases for breach of covenant to insure under 22 & 23 Vict. c. 35, and very many others.

Q. What approach was made by the Legislature during the present reign to endow courts of equity with common law powers; and also the common law courts with powers exercised only theretofore in equity, with a view of promoting an amalgamation of the two systems ?

A. By 14 & 15 Vict. c. 83, s. 8, courts of equity might obtain the assistance of a common law judge instead of sending cases for the opinion of a common law court. By the 21 & 22 Vict. c. 27, and the 25 & 26 Vict. c. 42, courts of equity might award damages and cause questions of fact to be tried by a jury before the court itself. By the Common Law Procedure Act, 1852, common law courts might give relief before trial in ejectment for non-payment of rent or mortgage money, and might, by the Common Law Procedure Act, 1854, grant injunctions and writs of mandamus, and other discovery, &c. And they might relieve in case of forfeiture for non-insurance or non-payment of rent, by the Common Law Procedure Act, 1860.

(a) The following question is answered by the above: Mention some instances in which, in substance, a remedy could only be obtained in a court of equity.

Q.-In what cases had equity jurisdiction exclusive of the common law?

A. In those cases where courts of common law could not grant any relief. Notwithstanding the 17 & 18 Vict. c. 125, and the 23 & 24 Vict. c. 126, and other Acts, equity retained exclusive jurisdiction over uses and trusts; specific performance of contracts not comprising a public duty (see Benson v. Paull, 27 L. T. Rep. 78); partition; granting the mortgagee's right of foreclosure, or enforcing a mortgagor's right of redemption where the right is gone at law; also in the guardianship of infants, idiots, lunatics, married women, and other persons under disability (see Haynes' Tab. Anal. of Eq. Jur.); in nearly all cases of accident, mistake, and fraud, in election, marshalling assets, bills of peace, perpetuating testimony, ne exeat regno, and in winding-up companies.

Q.-In what cases had it concurrent jurisdiction? and state any instances in which, on account of the more efficient remedy in equity, the common law procedure had fallen into disuse.

A.-In those cases where courts of law did not originally afford any relief or even adequate relief, but had since given such relief or complete relief, then courts of law and equity had a concurrent jurisdiction: (St. Eq. §§ 64 i, 80.) As in some cases of accident, mistake, forfeiture, and fraud, granting specific performance of contracts comprising a public duty (see Benson v. Paull, sup.), or damages in specific performance or injunction cases; enforcing the delivery up of specific chattels ; granting injunctions; discovery, interpleader, and set-off; also in partnership and administration, but the jurisdiction here was of a very limited application, and in account it had fallen almost into entire disuse: (see St. Eq. §§ 442, 534; Haynes' Tab. Anal. of Eq. Jur.)

Q.-In what cases had it auxiliary jurisdiction? (a)

A.-Discovery; perpetuating testimony; examination de bene esse; bills of peace; and bills to establish wills: (Haynes, ubi sup. ; Sidney Smith's Eq. Pr.) (b)

Q.-In what cases had courts of equity no jurisdiction, or declined to exercise it?

A.-Where it was clear that courts of law did always afford adequate and complete relief without the aid of a court of equity, and without circuity of action and multiplicity of suits, and could take due care of the rights of all persons interested in the property in litigation, courts of equity had no jurisdiction: (Sm. Man. sects. 16, 17.)

Courts of equity declined to exercise their jurisdiction in cases where one party had no more equity than another (St. Eq. § 64, c.), or where both parties were in pari delicto, unless public policy would be promoted

(a) This and the two preceding questions have also been asked to this effect: Mention, first, what matters are not comprised within the scope of the common law; and, secondly, the kinds lately conferred upon the courts of the latter.

(b) As to what matters were within the exclusive, concurrent, and auxiliary jurisdiction of the court is by no means easy to state with certainty, the Procedure Acts of 1852 and 1854, 1860, and other statutes, having given the courts of law jurisdiction in so many cases formerly cognisable in equity only. However, as text writers still retain their former divisions, we have thought it safer to follow, with very slight modifications, such divisions.

by such interference (Id. §§ 293, 303, 304), or where under the circumstances complete justice would not be done: (Id. § 895 et seq.)

Q.—Have the practice and procedure of the late Court of Chancery any application to the Chancery Division of the High Court of Justice ? If so, to what extent ?

A. Where no other provision is made by the Act or the Rules of Court the old procedure and practice remain in force (see sect. 21 of Judicature Act, 1875, and note to Rules of Court.)

The alterations are limited to proceedings by writ and statement of claim, &c. to judgment, where formerly such proceedings were taken by bill or information; the proceedings after judgment are as before, and so are the proceedings by petition, or summons.

Appeals are now in the nature of rehearings, and made by motion on notice; within a more limited time than formerly; further evidence is admitted, and enrolment of decree to prevent appeal is done away with.

Q.-Enumerate the principal heads of business which by the Judicature Act are assigned to the Chancery Division of the High Court of Justice. A.-1. All causes and matters pending in the Court of Chancery at the commencement of the Act.

2. All causes and matters to be commenced after the commencement of this Act under any Act of Parliament by which exclusive jurisdiction, in respect to such causes or matters, has been given to the Court of Chancery or to any judges or judge thereof respectively, except appeals from County Courts.

3. All causes and matters for any of the following purposes :

The administration of the estates of deceased persons.

The dissolution of partnership, or the taking of partnership or other accounts.

The redemption or foreclosure of mortgages.

The raising of portions or other charges on land.

The sale and distribution of the proceeds of property, subject to any lien or charge.

The execution of trusts charitable or private.

The rectification, or setting aside or cancellation of deeds or other written instruments.

The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases.

The partition or sale of real estates.

The wardship of infants and the care of infants' estates.

And all matters within the jurisdiction of the court, under 44 & 45 Vict. c. 41.

Q.-Selden hath said, "For law we have a measure and know what to trust to. Equity is according to the conscience of him that is Chancellor, and, as that is larger or narrower, so is equity." Was this an accurate description of equity as administered in our courts? State the grounds of your opinion.

A. The opinion of Selden was not an accurate description of equity as administered in our courts of the present time, whatever it might have been formerly, for, as before seen, there were certain principles on 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 (see further, ante, pp. 395-6.)

Q.-Was there any, and what, difference in the consideration of choses in action in courts of law and equity?

A.—It was a rule of the common law, with a few exceptions, that no chose in action could be assigned to third persons. Courts of equity, however, gave effect to assignments for valuable consideration of choses in action (see St. Eq. $$ 1039, 1040 c., 1044, 1050, 1057; Row v. Dawson, 2 L. C. Eq. 612, 2nd edit.)

Q. When there are two clauses absolutely inconsistent with each other, which clause prevails, the first or the last? and is this rule the same in both deeds and wills, and, if different, in what particular?

A. As a general rule, in a deed, the former clause prevails; as if a grant be made to A. and his heirs in the premises, and by the habendum it is restricted to his life, the habendum would be rejected as repugnant to the estate of inheritance conferred on him by the premises. In wills, the general rule is that the latter clause shall prevail, as implying a change in the testator's mind: (Burt. Comp. 512, 601, 602; 1 Hughes' Pract. Sales, 295, 297, 2nd edit.)

General Maxims of Equity.

Q.-State a few of the general maxims of equity jurisprudence, and explain shortly the meaning of each.

A.-"Equity will not suffer a right to be without a remedy" is the first maxim; but this only means rights which are considered such both at law and in equity.

"Equity follows the law" is another. This means that equity is governed by legislative enactments and rules of law in regard to legal estates, &c., and is regulated by the analogy of such legal estates, &c., and legislative enactments, &c., affecting the same in regard to equitable estates, &c., if any analogy subsists: if in each case there are no peculiar circumstances rendering it necessary to deviate from this rule.

It is a maxim that "Vigilantibus, non dormientibus, æquitas subvenit; this means that equity discountenances laches.

Another is, "He who seeks equity must do equity; " this means, must do equity in the transaction in which the relief is sought: (see further St. Eq. and Sm. Man., tit. "General Maxims," et infra.)

Q-Equity is said to follow the law. Does it not sometimes go beyond the law, as in the case of trusts executory? What are they?

A.-It does. Trusts executory are trusts raised by a stipulation or direction to make a settlement upon trusts which do not appear to be formally add finally declared by the instrument creating them. Equity endeavours, in construing such trusts, to carry out the presumable intention of the settlor or testator, and may thus be said "to go beyond the law :" (Sm. Man., sect. 236.)

Q.-Discuss the maxim "Vigilantibus, non dormientibus, æquitas subvenit," and give reasons why delay should in justice be a bar to relief.