Equity

In 1800, and indeed up to 1870, the property rights of a married woman were mainly determined by rules contained in two bodies of judge-made law, namely, the Common Law, and Equity.

The contract of a married woman, in the first place, even though intended to bind her separate property, did not in equity bind any property of which she was not possessed at the moment when she made the contract, e.

At common law indeed it is the property of the trustee, but it is property which he is bound in equity to deal with according to the terms of the trust, and therefore in accordance with the wishes or directions of the woman.

The Equity of the Romans and the Prætorian Edict by which it was worked into their system, will be considered in the next chapter.

The early history of one of them, Equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction.

and thus they differ from rules of Equity, in the technical sense of the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly.

Very soon it will cease to be possible for a man to have a reputation for skill in the Common Law without at least an elementary knowledge of equity.

the last quarter of the sixteenth century saw, concurrently with the steady growth of equity jurisdiction, a great revival of the Courts at Westminster, based on clear and proud consciousness of their historical authority and doctrine.

For equity, while superior to one sort of justice, is itself just:

It is now plain what the equitable is, and that it is just, and that it is superior to one sort of justice.

We have next to speak of Equity and the equitable, and of their relation to Justice and to what is just respectively.

It would seem that, in these early times, however much the administration of justice might be organised, even though a system of law-courts might exist competing with the King’s justice and quite independent of him, even though all or some part of the law might have been set forth in writing, yet there was always supposed to be what may be called a supplementary or residuary jurisdiction in the King.

The clearest proof we can have of a want of equity, is where following the literal meaning of the words would be unlawful, that is, repugnant to natural or divine precepts.

The need of equity too will appear in cases, where following the literal meaning of the words will not be absolutely unlawful, yet, upon a fair estimation, will be found too hard and intolerable.

In judging of the will by natural reason, Aristotle, who has treated the subject with great accuracy, makes the mind the seat of judgment, and the will the seat of equity, which he nobly defines to be the correction of that, wherein the law, by reason of its universal nature is defective.

Former concurrent jurisdiction of common law and equity to give compensation for fraud.

Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity.

and their jurisdiction required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.