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Law Faculty Publications School of Law

1987

Equity and Equitable Remedies

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Recommended Citation
William Hamilton Bryson, Equity and Equitable Remedies in Encyclopedia of American Judicial System (Scribner 1987).

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EQUITY AND EQUITABLE REMEDIES

Q.UITY is the system ofjustice that arose in the liament. Judicial restraint is a good thing, but it
E court of the lord chancellor of England in
the late fourteenth or early fifteenth century. (In
can be carried too far, for there is no such thing
as a general rule (or a statute) that cannot be
order to avoid confusion, this essay will not use avoided or perverted by persons of bad inten-
the word equity to refer to the nontechnical con- tions. Furthermore, the medieval Parliament was
cepts of fairness and justice.) Equitable remedies not a very efficient legislature by modem stan-
are those remedies granted by courts of equity as dards; for one thing it met only irregularly, usu-
opposed to legal remedies, which are granted by ally being called when the king needed more
courts of common law. The system of remedies money.
we call equity arose to supplement and to com- As the common-law courts became unable to
plement, but not to supplant, the common law of grant new types of remedies to deal with new
England. types of problems, litigants turned to the king,
and the king sent them to the lord chancellor, the
head of the royal secretariat, for special aid. As
ENGLISH ANTECEDENTS TO these special petitions were regularly accepted
MODERN EQUITY PRACTICE and decided, the chancery developed into !: law
court, and the system of justice administered
The common law of England in the Middle there became known as equity. Equity thus arose
Ages, whether administered in the royal courts several centuries later than the common law and
or the county courts, was an unwritten system of was that much more modern in terms of proce-
law that was thought to be totally comprehen- dure and substantive law. It is to be remembered
sive; it governed all situations, and it was the that chancery is a court that applies the system of
duty of the courts to "discover" the law and to law called equity. A chancellor is an official who
apply it to each particular case. In the thirteenth is the keeper of someone's seal; the lord chancel-
and fourteenth centuries, common-law remedies lor of Great Britain is only incidentally a judge.
grew to combat all types of injuries; in some Thus, an equity judge is not usually a chancellor,
cases the royal courts were granting remedies to though in the United States the term chancellqr is
deal with problems formerly handled only in the sometimes used to refer ·to an equity judge ~nd
county courts and, in other cases, to deal with the term chancery is used loosely to refer to an
newly invented injuries. This was a period of equity court and equity jurisdiction. '"fhis article
luxuriant growth for the English common law. will use the word chancery to refer only to the
However, the fourteenth century saw the rise of court of the lord chancellor and not to any other
Parliament as a legislative body and, by midcen- court of equity.
tury, the development of a substantial body of Equity arose in the court of chancery in order
judicial precedent stating the common law. The to provide remedies when the common law
result was that common-law judges were becom- proved inadequate to do justice in a particular
ing trapped by their own precedents and in time case. (From the middle of the sixteenth century
became unable to change the law without tre- onward, the court of exchequer also granted eq-
spassing upon the legislative prerogative of Par- uitable remedies.) Some of the substantive im-

545
 EQUITY AND EQUITABLE REMEDIES

provements of equity were the enforcement of land to secure a loan; the mortgage contract is
trusts and the use of various defenses to con- written so that if the loan is repaid, the debtor
tracts. A trust, or a use, was a type of contract, gets his land back; if it is not repaid in full, the
usually in reference to land, which was invented creditor keeps the land, even if only one payment
after the common-law writs (which controlled is not made or if payment is made only one day
the jurisdiction and procedures of the common- late. In many cases a debtor may be in technical
law courts) had become fixed and unchangeable. default only, but the common-law courts must
A trust is the situation in which the common-law enforce the contract that was freely entered into
ownership of property is given to a person (the by the debtor. To prevent such harsh results,
trustee) to hold and manage for the benefit of penalties, and forfeitures, the courts of equity
another person (the beneficiary of the trust). allow the debtor to redeem his land by making
Since there was no common-law writ available to the payments late (with appropriate additional
1
enfo rce a trust and since the chancery clerks and interest); thus, the equity courts have created
the common-law judges could not change the what is called an equity ofredemption. (To pro-
law by inventing a new one without unconstitu- tect fair-minded creditors, the courts of equity
tionally usurping the legislative power of Parlia- allow a creditor to come into the equity court and
ment, the chancellor enforced them. It was clear prove the hopeless insolvency of his debtor, and
to the entire legal profession that justice re- the equity judge will foreclose the debtor's eq-
quired the enforcement of trusts and uses. Since uity of redemption; this will give the creditor
the common-law courts could (or would) not, clear title to the land being held as security so
everyone agreed that equity should. Thus, the that he can sell it and recoup the amount of the
beneficiary of the trust is said to be the equitable defaulted loan.) Although the general common-
owner of the property in question. The trust, law rule that contracts should be kept is well
which is completely unknown in European law, is respected by society, ever'yone's sense of justice
a maknificent device for managing property or will acknowledge that the equity of redemption
companies in both personal and commercial set- is a fine tuning by the courts of equity that results
tings. This device has been steadily refined over in substantial justice in the individual case where
the centuries to serve more and more needs of the debtor is acting in good faith but has had a
society. bit of bad luck.
In the area of contracts, justice required that In more recent times the courts of equity have
each party receive "consideration"-that is, evolved a law of fiduciary responsibility, which
something of value for the performance of his did not exist in medieval England. Thus, ad-
part of the agreement. The common-law courts ministrators of estates, guardians of mental in-
required proof of consideration "flowing" from competents, and trustees are held to higher stan-
the plaintiff to the defendant (the obligor) before dards of loyalty than are ordinary businessmen.
a plaintiff (the obligee) could recover on an oral The equity jurisdiction of the chancellor's
contract. However, if the contract was in writing court grew in the fifteenth century also to cure
and under the defendant's seal, the written and problems in the administration of justice caused
sealed instrument was sufficient proof for a com- by various defects in the procedures of the old
mon-law recovery, even though there was no common-law courts. One common-law rule of
consideration. A sharp dealer would be able to evidence was that a party could not testify in
take advantage of others by always having such court as a witness. Much has been written about
an unfair bargain reduced to writing with an eye the aspect of this rule that a person cannot testify
to future litigation, relying on well-established against himself, but we will consider here that a
common-law precedent. The common-law person also could not testify for himself. Thus,
courts could not change their law, but the court where the only witnesses to a transaction or oc-
of equity came to require the unconscionable currence were the parties thereto, the person
obligee to forgo his unfair gain. The courts of injured could not prove his case in a court of
equity required that all contracts be supported common law, because there was no admissible
by consideration on both sides. evidence; and since the plaintiff always has the
The mortgage is a common-law conveyance of burden of persuasion, the defendant would win

546

J
 EQUITY AND EQUITABLE REMEDIES

by default. Thus, if one were assaulted in a dark died, and the jeweler had then been sued at com-
alley, one had no practical remedy at common mon law for the necklace by both the heir and the
law. To aid the injured party, the courts of eq- widow, there would have been a very real danger
uity, where the defendant was required to plead that the different juries in the two common-law
under oath, would allow a person with a com- cases would both find against the jeweler. To
mon-law grievance to sue in equity in order to prevent the likelihood of inconsistent jury ver-
force the defendant to respond under oath and dicts and double liability, the courts of equity
"discover" (make known) the truth, and then this would allow the defendant jeweler to come into
sworn statement would constitute a binding ad- equity and to bring both common-law plaintiffs
mission for use in the common-law court. In into the case, thus forcing them to litigate in
time, the courts of equity, where discovery was equity their competing common-law claims.
needed, began to retain the case and to decide A more serious defect of the common-law
the common-law dispute in order to avoid the procedure was that when any party died, the law-
multiplicity of litigation that would have been, suit died, and the plaintiff had to restart his suit
involved by sending the plaintiff back to the from scratch. Where there were many parties, it
court of law. This was the origin of the bill of was frequently the case, particularly where a
discovery. whole family was involved, as in litigation over a
One of the most glaring archaic features of the family inheritance, that parties would die and
medieval common law was trial by jury. Although new parties be born, so that the case could never
the criminal jury was usually up to its task, life be brought to a conclusion. This problem was
was too complicated for the civil jury; civil juries remedied by the courts of equity, because there
were seldom sufficiently educated or ex- a case could be easily revived when there was a
perienced to understand complex issues of change in parties and the litigation would not be
financial importance. But regardless of how frustrated by such accidents.
good the jurors might have been, the jury system The fifteenth century in England was a period
required a single verdict of liability or not and, of political weakness as a result of the drawn-out
if so, what damages. Thus, where there were Wars of the Roses; even during periods of peace,
multiple plaintiffs or defendants, the common- the authority of the crown was weak. England
law jury was inadequate to sort out issues of, for was at the mercy of private armies; the county
example, which of the defendants might be liable administrators, the sheriffs, were usually either
for what proportion of the damages. In the powerless or beyond the control of the courts. It
courts of equity, which arose long after the com- was a period during which the rich and the pow-
mon-law courts had settled upon the use of the erful of the county could manipulate or intimi-
jury as the trier of the facts of the case, the judge date juries and thus pervert the course ofjustice.
heard all of the issues of the case and, being an Frequently weak and poor litigants had to resort
educated and highly competent person, was able to the court of the lord chancellor, the most pow-
to determine complicated issues. erful political figure in the country, to obtain
Another jury-related problem was the com- justice against their strong neighb9rs. The chan-
mon-law action of account. When the parties cellor was the king's prime minister in fact,
presented an accounting dispute to the court, though not in name, and he could do justife and
the jury was required to render a separate verdict enforce his orders without fear or favor .··l Many
on each line in the account; this clumsy proce- common-law disputes were therefore heard in
dure was beyond the abilities of a jury of plough- the court of chancery in the fifteenth century.
men, and the courts of equity took over account- Thus did equity come into existence to sup-
ing litigation to remedy this deficiency in the plement and complement the common law. Eq-
common law. uity does not comPete with the common law but
If two different persons claimed an object or tunes it more finely. The common law is, in the-
a fund in the hands of a third party, problems ory, a complete system; equity is not a system
could arise in the common-law courts. For exam- within itself but rather relates to the common law
ple, if an expensive diamond necklace had been and aids the common law.Justice came to consist
given to a jeweler to be repaired, the owner had of both common law and equity; English justice

547
 EQUITY AND EQUITABLE REMEDIES

would be defective without both. This was recog- n1on-law judgment. Thus, the contract and the
nized as early as the fifteenth century, and so common-law judgment remain in force, but if
lawyers and judges had to work out in the plead- they are taken advantage of, the obligee will be
ing stage of the litigation whether justice in a put in prison for contempt of the equity court's
particular case was to be served in a court of order.
common law or a court of equity. Since the courts of equity grant remedies only
Equity does not deny the validity of the com- when the ordinary common-law remedies are
mon law but rather recognizes it and fulfills it. inadequate, the jurisdiction of the equity courts
Equity does not change the common law, but is said to be extraordinary. The term extraordinary
where a person is using the common law to an is used here in the sense of going beyond the
unjust purpose, the equity judge will order that basic rather than in the sense of unusual; equity
person not to sue in the common-law court or is both extraordinary and quite usual and fre-
not toJ'enforce a common-law judgment. The quent.
court of equity does not change the common law One aspect of extraordinary equity powers in-
or reverse, overrule, or annul any common-law volves the personal order. A personal order does
judgment, for to do so would be an unconstitu- not change the law or the parties' strict common-
tional usurpation of legislative power and an il- law rights and is enforced by the court's holding
legal appellate power over the common-law the defendant in contempt and keeping him in
courts. But all disinterested persons would agree prison until he obeys. Thus, equity is said to act
that the common-law courts should not be used in personam. A common-law court acts in rem
in an unjust manner, and .thus, the equity court (that is, on the property of the defendant), de-
orders that person not to do it. It is against good claring the money or land in dispute to belong to
conscience to do injustice. Equity courts simply the successful plaintiff. The common-law court
fOrce defendants to act according to conscience; thus changes ownership and orders the sheriff to
conseqyently, they have frequently been called take the money or land from the defendant and
courts of conscience. to give it to the plaintiff. It should be noted,
St. German was the first scholar to attempt to however, that in modern pi:actice, statutes have
explain the activities and jurisdiction of the chan- given the courts of equity power to act in rem so
cellor's court. He spoke in terms of epikeia and that, for example, a sheriff can execute an equity
conscience. The former concept is that, although order or a commissioner can be appointed to
all law must be framed in general terms, it should make a common-law conveyance or release in the
be applied to individual cases with flexibility and defendant's name.
mitigation. 'fhe concept of conscience is the The procedure of the equity courts, some-
same today as it was in the sixteenth century, a times referred to as English bill procedure,
sense of absolute right versus wrong. A party which was developed in the fifteenth-century
should not be allowed to use the common law to chancery, was clearly more modern and much
perpetrate a wrong. For example, if a person more efficient than the common-law procedure,
made a written contract under seal, an agree- with its forms of action and trial by jury. Every
ment to pay money for an assignment of contract court that was set up by act of Parliament or
rights, and then it turned out that the assignment evolved on its own in England from the fifteenth
was invalid and worthless, the general common- century onward used this English bill procedure
law rules allowed the enforcement of the written rather than the procedure of the common-law
contract. However, the injustice of enforcing this courts.
contract was obvious, because while contracts It has been argued that the origin of equity
should be kept as a general rule, where one party procedure and substantive law is to be found in
did not get what he thought he was getting, he the procedure of the canon-law courts. Most of
should not have to give up what he promised to the medieval English chancellors were bishops in
pay. The remedy for the mistaken person is to whose courts the canon law was used. It is my
sue in equity for an order to the other party not opinion that equity was an evolution native to
to sue on the contract and to return the written England and that the bill grew out of an ordinary
agreement to him or, if he had already been petition or request, that depositions grew out of
sued, not to ask the sheriff to execute the com- administrative inquisitions, and so on. The fact

548
 EQUITY AND EQUITABLE REMEDIES

that the chancellors were bishops does not mean mon law and equity were quickly forgotten, and
that they could not keep their courts entirely equanimity prevailed until the reign of James I.
separate. Indeed, many common-law judges In the first decade of the seventeenth century,
were bishops. Furthermore, many leading two very ambitious and aggressive men began to
medieval politicians were given bishoprics so compete over personal dominance of the English
that the king could have administrators without legal system. The two were Thomas Egerton,
having to pay them salaries; the bishops could do Lord Ellesmere, who became lord chancellor,
the king's work in person and their ecclesiastical and Sir Edward Coke (pronounced "Cook"), a
work by deputy. Most ecclesiastical courts were common-law judge who became lord chief jus-
presided over by the bishop's official or deputy tice of England. The chancellor has always been
anyway. There are similarities and dissimilarities the administrative head on the English judiciary,
between the canon law and equity. but tradition was for Coke a servant, not a mas-
The peaceful coexistence of law and equity ter. When Coke became lord chief justice of En-
continued until the chancellorship of Cardinal gland, he began a systematic attack on every
Wolsey during the early reign of Henry VIII. court and legal system but his own.
Thomas Wolsey, a person of modest social back- In the early seventeenth century, the concept
ground, came to the notice of Henry VIII, who of res judicata-the doctrine that once a court
recognized in him a competent administrator has decided a matter, it cannot be litigated again
and so put him into the highest seats of power in -had not been worked out between the courts
the kingdom, civic and ecclesiastical. As lord of law and courts of equity. Therefore, if a per-
chancellor, archbishop of York, cardinal, and son was sued at common law on a contract to
papal legate, he was exalted over all men in En- which he had a defense in equity, he could sue in
gland except only the king himself and the pope. equity at once to stop the plaintiff (the obligee)
The power went to Wolsey's head, and he alien- from suing at common law, or he could wait and,
ated people. The odium that became attached to if the common-law result was against him, sue to
Wolsey personally spilled over onto his court of prevent the enforcement of the judgment. Thus,
chancery and from there to the rules of equity the defendant (the obligor) had two chances of
that were administered in chancery courts. success. Today, the defendant at common law
In 1529, Cardinal Wolsey, having failed to get must resort to equity at once or lose his equitable
Henry VIII's divorce from Queen Catherine, was defense.
stripped of all his offices and wealth. He died This situation was galling to Coke because the
shortly thereafter of a broken heart, having lost equity order, the injunction, appeared to be an
his power, his only love. He was succeeded in the appeal to his rival, the lord chancellor. Coke
office of lord chancellor by the common lawyer therefore let it be known that he was prepared to
Sir Thomas More. This was an interesting suc- stop this practice. Soon a most unworthy plain-
cession in that More was the first layman to be tiff, Richard Glanvill, appeared in Coke's court to
appointed chancellor since 1454; he had not sue on a contract that was the result of his gross
been, and was not to become, the king's prime fraud and deceit. (He had sold a topaz, repre-
political adviser; and he was a well-known prac- senting it to be a diamond.) He got judgment;
ticing lawyer. It was believed that he would re- the court of chancery issued an injunction to stop
store the proper relationship between common enforcement of the common-law judgemel)t; the
law and equity. Soon after his appointment, he injunction was disobeyed; Egerton put Glanvill
called the judges together to settle this relation- in prison for contempt of court; and Coke or-
ship. He proposed not to enjoin common-law dered him released on a writ of habeas corpus.
litigation if the judges would reform the com- This matter ended inconclusively, but this case
mon law, but the judges said that they did not and several others made a public issue of this
have the power to change the law, and this forced problem of the practice of law and the adminis-
More to continue to grant injunctions, in perso- tration of justice. The whole matter of the
nam orders, as Wolsey and all earlier chancellors boundaries between common law and equity
had done. Thus, More's appointment did not were then referred to the king's counsel for full
change or restore anything; but because he was debate and resolution. The result was in favor of
a courteous man, the antagonisms between com- the courts of equity, as should have been ex-

549
 EQUITY AND EQUITABLE REMEDIES

pected. Even though equity practice was not per- would have no political power. The normal
fect, it was more modern and more flexible than course of equity jurisprudence in the courts of
the common law. The old rule was thus reestab- chancery and exchequer continued unabated
lished in 1616 without any further serious dis- during the time of Cromwell.
pute. Simply stated, the rule was that where the After the Restoration, the commercial empire
results of an equity order and a common-law of England began to grow by leaps and bounds.
order were in disagreement, the equity rule and As English wealth became more and more based
decree would prevail. Otherwise, equity would on commerce, the patronage of the lord trea-
have been unable to perform its function of see- surer became greater than that of the lord chan-
ing justice done in the individual case. Shortly cellor, and so the politician closest to the king
thereafter, Coke was removed from his judge- sought to be appointed the former rather than
ship and Egerton died, and things returned to the latter. The result was that the chancellor be-
1
nri rmal in the English courts. A generation later, came less important politically than he had been
personalities and politics, rather than jurispru- in the past and thus had more time for the per-
dence, again impinged on the relationship be- formance of his judicial duties. Furthermore, the
tween common law and equity. Soon after his legal ability of the candidate for the position of
accession to the throne in 1625, Charles I de- lord chancellor became more important than his
cided to follow the French theories and methods political connections. Thus, the period extend-
of government and to rule England without the ing from the Restoration into the middle of the
interference of Parliament. When Parliament nineteenth century produced a series of schol-
was removed as a political forum, the opponents arly and legally adept chancellors whose opin-
of the king's policies took their fights to the area ions were systematically reported.
of the law courts. Lord Coventry, the lord chan- First and foremost was Heneage Finch, earl of
cellor, was identified with the king and his poli- Nottingham, a lawyer arid a judge without equal.
cie~. And again the dislike of the chancellor re- Since the Middle Ages, the court of chancery had
sulted in dislike of his court and of its been loosely called a court of conscience. Lord
jurisprudence. Nottingham put the the~ry of conscience into its
It was during this period that John Selden, the proper perspective when, in Cook v. Fountain
famous legal scholar and antiroyalist, published (1676), he stated that he was not ruling accord-
his famous jibe at equity: "Equity is a roguish ing to the personal conscience of any particular
thing; for [in] law we have a measure [we can] party litigant, himself, or the king but according
know what to trust to. Equity is according to the to the civic conscience of the English legal sys-
conscience of him that is chancellor, and as that tem. The concept of conscience as administered
is larger or narrower, so is equity. 'Tis all one as in the courts of equity is general and institu-
if they should make the standard for the measure tional; it is to be found in the established prac-
we call a foot to be the chancellor's foot; what an tices and precedents of the courts of equity; it
uncertain measure this Would be." applies equally to all persons. Since Nottingham
The political, military, and personal defeats of expounded equity doctrine in lucid and rational
Charles I are well known. As the king, the bish- opinions based on precedent and since his opin-
ops, and the aristocracy were one by one ions were the first to be systematically published,
removed from power, the radicals turned against he has been called "the father of equity."
Oliver Cromwell and the moderate Puritans, and Equity jurisprudence was developed through-
in their zeal and ignorance they attacked the law out the eighteenth century by a series of most
itself. One of their proposals was to abolish the excellent jurists: Charles Talbot, Lord Talbot;
court of chancery. This attack was the low point Philip Yorke, Lord Hardwicke; Charles Pratt,
of equity. This ill-conceived move was referred Lord Camden; and Edward Thurlow, Lord
to a commission set up under Sir Matthew Hale Thurlow, among others. The lord chancellor
to study the issue of law reform in general, and during the long and difficult later years of
nothing more was heard of the taking-away of George III was John Scott, earl of Eldon. We
the chancery. During the interregnum, the court must pause to consider Lord Eldon as lord chan-
of chancery was presided over by a committee of cellor.
three commissioners, and this assured that it Lord Eldon, who was as politically and per-

550
 EQUITY AND EQUITABLE REMEDIES

sonally traditional as the king, was a brilliant eq- dated 20 November 1606 for the government of
uity judge, but there were problems. Eldon was Virginia required that litigation be determined
pilloried by the novelist Charles Dickens in Bleak "as near to the common laws of England and the
House as being the perpetrator of endless judicial equity thereof as may be." Once the Virginia
delay, and the bar agreed with Dickens; Eldon courts and an educated legal community was es-
blamed the truly excessive delays in his court on tablished, which happened sometime before the
the bar and on the litigants themselves. (The mid-l 640s, equitable remedies were fully availa-
true villain in Bleak House was a testator who ble. In Virginia, equity was administered by the
made a series of wills without destroying the ear- same courts that heard the common-law cases. In
lier ones.) However, frequently Eldon would some of the New England colonies, equity was
hear the evidence in a case, take it under advise- resisted. ,..fhe probable reason for this was the
ment, and then two years later, when he was identification of equity and arbitrary royal power
ready to render an opinion, have to have the case in the minds of nonlawyers. In eighteenth-cen-
reargued. (If these delays were really so irksome tury New York, an attempt was made to set up a
to the legal profession, they could have divide\! court of chancery to administer equity; thi.s was
their equity practice between the chancery and strenuously opposed because the governor was
the exchequer, but they for some reason pre- to be the sole chancellor and this was not politi-
ferred the delays of the chancery to quick results cally desirable.
in the exchequer.) The substantive doctrines of equity can be ad-
Lord Eldon's opinions were carefully rea- ministered in separate courts, as in England the
soned and drafted; many are still cited today. court of chancery had only equity jurisdiction
Eldon was judicially conservative, and he felt whereas the court of common pleas and the
bound to follow the traditional practices and the court of king's bench had only common-law ju-
established law. Thus, when justice required him risdiction. In 1826 there were separate courts for
to grant a mandatory injunction in the case of law and equity in Delaware, New Jersey, South
Lane v. Newdigate (1804), even though no such Carolina, and Mississippi. Today there are sepa-
order had ever been granted before, he felt rate courts in Arkansas, Delaware, Mississippi,
obliged to disguise it as a prohibitory injunction and Tennessee.
by phrasing the orde.r as a double negative. Per- '
An alternative is the system of fused courts, in
haps Eldon's judicial philosophy was caused by which common-law and equity cases are adminis-
Selden'sjibe of 150 years before. In Gee v. Pritch- tered by the same court but common-law cases
ard (1818), Eldon said, "Nothing would inflict on are tried by common-law procedures and equity
me greater pain ... than the recollection that I cases by equity procedure. Here the courts are
had done anything to justify the reproach that said to have a common-law side and an equity
the equity of this court varies like the Chancel- side. Although the same judge hears both types
lor's foot." And thus, by the conclusion of of cases, a case must be brought as either one or
Eldon's influential chancellorship, equity had the other; the court sitting as a common-law
become as rigidly bound by precedent as was the court cannot grant an equitable remedy, but if
common law. And indeed ever since, equitable the case is transferred to the court's equity side,
remedies have been dispensed with the same un- it can. The courts of Virginia from 1607 ro the
derstanding of precedent and stare decisis as present, except for the period 1776-1831', have
have common-law remedies. This will vary ac- been thus fused. In 1826 the lower courts of New
cording to the judicial philosophy of a particular York, Maryland, Virginia, Missouri, North Caro-
judge or generation ofjudges; history shows that lina, and Kentucky were examples of this type of
the pendulum is always in motion. judicial organization, as were the federal courts
before 1938. Today this system of justice exists
in Iowa, Maryland, New Jersey, Pennsylvania,
EQUITY IN THE UNITED STATES and Virginia.
In the 1820s many equitable doctrines were
By the time of the first English settlements in being administered in the common-law courts of
America, equity was an integral part of English Pennsylvania, and a limited amount of equity had
law. The "Articles, Instructions and Orders" slipped into the common-law practice in New

551
 EQUITY AND EQUITABLE REMEDIES

England. It was ag-ainst this background thatjo- sales of property. But a master can also be ap-
seph Story of Massachusetts published his ency- pointed to hear evidence on some part of the
clopedic treatises on equity practice and equity case or to draft and execute a conveyance or
jurisprudence. In the southern states, equity was other document.
freely available. (It is to be recalled that the first Receivers are officers of the court who are
reports published in Virginia were a selection of appointed to take possession of property that is
equity opinions of George Wythe, which were the subject of litigation. Such a seizure of prop-
collected for publication in 1795, and the second erty may be necessary to prevent its being hid-
volume of Conway Robinson's The Practice in the den, destroyed, or lost during the course of the
Courts of Law and Equity in Virginia was published judicial proceedings. The receiver, at the direc-
in 1835.) On the other hand, in the northern tion of the judge, takes possession of the prop-
states, a general undercurrent of skepticism of erty and holds it safely until further order of the
equity remained. court. A receiver may be appointed simply to
In the 1840s a movement for law reform hold an object or a fund, or he may even run a
through codification was initiated in New York corporation to preserve it as a going concern,
by David Dudley Field. His most notable achieve- pending its sale or reorganization. Receivers are
ment involved civil procedure, including the ab- appointed to sell off the assets of a bankrupt
olition of the common-law forms of action and business.
the merger of the procedures of common law Equity has also had a deep and lasting impact
and equity. The most remarkable aspect of the on the content of American law, as well as on its
New York "Field Code" of 1848 was that the procedure. In the area of contracts law, the equi-
substantive doctrines and remedies of common table remedy of specific performance is vital. In
law and equity could be freely combined in the some cases the ancient common-law remedy of
same lawsuit; this was the first procedural system money damages as.compensation for the wrong-
in Anglo-American jurisprudence to provide a ful breach of a contract is not adequate to satisfy
merged system of law and equity. The substan- a person; where it is not, a court will exercise its
tive rules were not altered, but the old proce- equity powers and ·force the defaulting party to
dures of judicial administration were merged do what he contracted to do. Thus, where there
into one. It is to be noted that Field's new statu- is a contract to sell a unique object, the seller will
tory procedure was a modernized and stream- not be allowed to back out and pay damages for
lined one based on equity procedure; the com- his breach, but he will be compelled specifically
mon-law procedures, with the exception of trial to deliver the item sold. Note that the equitable
by jury, were discarded. The success of the remedy is granted only where the common-law
merger oflaw and equity procedure in New York remedy will not do complete justice; the ancient
was followed by its successful adoption in most relationships survive in a merged system of ad-
states, in England (in 1873), and in federal prac- ministration.
tice (in 1938). Contracts for the sale of agricultural land will
Equity procedures and practices, then, have be thus "specifically enforced," as the expres-
come to dominate American civil procedure sion goes. No farm is like any other one, and
through the influence of Field. In particular, thus, the disappointed buyer cannot go and buy
masters and receivers and the equity devices of another farm to replace his lost bargain, as can
pleading by petition and answer, discovery, in- the purchaser of a ton of gravel. In agricultural
terpleader, class actions, third-party practice, in- England, the specific enforcement of land sales
junctions, and contempt-of-court proceedings contracts became so much the normal remedy
have all taken their place in all courts in the that all land is now considered unique as a matter
United States. of law and the remedy of specific performance is
Masters (also known as commissioners) in always available, no matter how indistinguisha-
chancery are officers of the court appointed on ble one unit of a condominium may be from
an ad hoc basis to aid the equity judge in per- another.
forming some routine but time-consuming task. As to suits to enforce contracts, there are
The most frequent use of masters is to take com- many defenses that are of equitable origin, such
plicated accountings and to conduct judicial as dishonest conduct that does not involve a di-

552
 EQUITY AND EQUITABLE REMEDIES
over time, come to play an invaluable role 1n
rect lie or dilatory conduct that harms another.
An unforeseeable accident or a catastrophe of American legal practice.
nature may relieve a person from a contractual
obligation. A grossly unfair and harsh bargain
that "shocks the conscience" will be set aside by
principles of equity, even though the common- CASES
law rules of making the contract were followed.
Equity has also created a means for assuring Cook v. Fountain, 3 Swanston 585 at 600, 36 Eng. Rep. 984
the adequate supervision of the actions of fiduci- at 990 (Ch. 1676)
Gee v. Pritchard, 2 Swanston 402 at 414, 36 Eng. Rep. 670
aries. 'T'hus, the executor of a will may ask an
at 674 (Ch. 1818)
equity judge to interpret the will, and the admin- Lane v. Newdigate, 10 Vesey 192, 32 Eng. Rep. 818 (Ch.
istrator of a dead person's estate may ask him for 1804)
advice and guidance as to the accounting for,
and distribution of, the assets. Directors and
officers of corporations have fiduciary duties to
their corporations, and therefore, most of the
BIBLIOGRAPHY
problems of corporations and corporation law
are solved by equitable principles. Trustees and J. H. Baker, "'The Common Lawyers and the Chancery:
guardians are also fiduciaries and are supervised 1616," in Irishjurisl, 4 ( 1969), discusses the disputes between
by the equity courts. the courts at the time of Coke and Ellesmere. W. H. Bryson,
The courts of equity also have the power to The Equity Side of the Exchequer (1975), describes the equity
issue orders to forbid the commission of future courts and procedures in sixteenth- and seventeenth-century
England. E. R. Daniell, A Treatise on the Practice of the High Court
torts where the threatened wrongful act is likely of Chance1y, 3 vols. (1837-1845), is the best English ency-
to occur in the near future and common-law clopedic work on equity. J. A. Guy, The Public Career of Sir
damages will not afford adequate compensation. Thomas /\:fore (1980), discusses the court of chancery at the
This is known as the court's quia timet jurisdic- time of Wolsey and More. W. J. Jones, The Elizabethan Court
tion; the suit is brought by a person "because he of Chanceiy (1967), describes the court of chancery and its
procedures. F. W. Maitland, Equity: A Course of Lectures, 2nd
fears" that a tort will be committed against him.
ed., edited by J. Brunyate (1936), gives the historidil back-
For example, if your -rext door neighbor threat- ground of equity.
ens to cut down an ornamental tree that is on ]. N. Pomeroy, A Treatise on Equity jurisprudence, 5 vols.
your land or to throw poisoned meat onto your (1941), is a basic American encyclopedia on equity. E. D. Re,
land so that your dog will eat it, you can get an ed., Selected Essays on Equity (1955), concerns itself primarily
with equity in America. Baron Redesdale Q. F. Mitford), A
injunction to forbid such acts. Usually the likeli-
Treatise on the Pleadings in Suits in the Court of Chancery (l 784),
hood of imprisonment for contempt of the in- influenced equity practice in England and America. C. St.
junction is a sufficient deterrent to the threat- German, Doctor and Student, edited by T. F. T. Plucknett and
ened tort. ]. L. Barton, Selden Society, vol. 91 (1974), a sixteenth-cen-
Thus, equity has become an integral part of tury explanation of equity jurisprudence, was very influen~
tial. E. H. T. Snell, Principles of Equit;i, 28th ed., edited by P.
American law. The major misconception about
V. Baker and P. St. J. Langan (1932), is the basic English
equity-that it is administered at the whim or treatise on equity. Joseph Story, Commentaries on Equity juris-
caprice of the judge-is not, and never has been, prudence, as Administered in England and America, 2 vols. ~1836),
true. The "discretion" exercised by the equity influenced the doctrines of equity; and Commentaries on Equity
judge is a sound judicial discretion regulated by Pleadings (1838) was a widely used work on equity procedure.
the established principles of equity that have, [See also DISCOVERY.]

553

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