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a mistake of the Vice-Chancellor, and that is how I shall treat it."
This, as a general statement, modified slightly in the ways above indicated, appears to be the accepted view of the status of general equity jurisprudence. New cases, requiring the adoption of hitherto unrecognized legal principles, to be brought within the realm of law must be provided for by legislation. And we find that practically since the early part of the nineteenth century [for no exact line can be drawn], the field of law has been extended by legislation rather than judicial decision. Within bounds already determined the courts work over, unfold, and develop existing rules found in common law, Equity, and statutory law. Actual change and actual extension of these bounds is for the last and present great agency in the development of law, the legislature. Looking at the mass of statutory law promulgated every year, whatever may be said of the wisdom of many of their enactments, it cannot be said that legislatures are not awake to their opportunities.
In no way is the intrinsic superiority of equitable over legal principles and rules more apparent or more clearly recognized than in the influence exercised by Equity Influence of upon the common law and upon legislation. Equity on law.
It is worthy of note that the Statute of Frauds was passed by Parliament largely through the influence of Lord Chancellor Nottingham. At common law a seal upon a written instrument was of so high an import that it could only be discharged by another sealed instrument or delivery. Equity regarded the seal as a mere form, the obligation as the real thing, and granted its remedies accordingly. Now the effect of a seal is in many States abolished, except with reference to the Statute of Limitations; in others it imports only prima facie a consideration; while in a few its effect is retained. Formerly at law no action could be maintained upon a lost instrument. Equity by a suitable form of decree enforced the demand. For a long time now courts of law, through
the adoption of the equitable notion either by judicial decision or by statute, have permitted actions on lost instruments.
One of the early heads of jurisdiction in Equity was relief against penalties and forfeitures. Now law courts everywhere give judgment for the actual debt rather than the amount named in the bond. The equitable view of a mortgage, by which a conditional conveyance at common law was transformed into a mere security by the creation of the right of redemption, has in half the States prevailed to the extent that a mortgage transfers no title whatever but only creates a lien, while in the other States, though the legal theory of an estate upon condition prevails in a modified form, the equitable view is that practically regarded and acted upon. The equitable doctrine of priorities is greatly modified by, or perhaps rather has led to the recording acts under which priorities are determined in conformity to statutory requirements. The old rules developed in chancery in regard to the subjects of administration and guardianship have to a very considerable extent been adopted by statutes creating probate courts, and so generally has jurisdiction in these matters been conferred upon other courts that it is often forgotten that the principles upon which these courts act were originally developed in chancery.
The common-law disabilities of married women were at an early date greatly modified in Equity by the creation of a property right in a married woman termed "an equitable separate estate," excluding the husband's control, freeing her property from his debts and securing the beneficial ownership to the wife, and also recognizing and enforcing certain obligations of the wife undertaken with respect to this separate estate. In most of the States and in England the recognition of a married woman's property rights free of the husband's control, first developed in Equity, has been adopted by legislation and her power as to property and contract has been extended so that even in the older and more conservative States generally she has, as
to third persons, the property and contract rights of a single
An important head of Equity was called Discovery. At common law the parties to litigation were held incompetent
as witnesses. Equity not only permitted the Discovery.
parties to testify but enabled a party to obtain,
within well-established limits, the testimony of his adversary, and even to maintain a bill in equity for this purpose alone. The common-law rule of incompetency has been abolished by statute, parties are competent witnesses in all courts, and in most, if not all States, there are statutory modes provided for obtaining information from the opposite party before trial in actions at law, so that the technical Discovery of Equity, by the adoption of statutory methods securing the same results, is practically obsolete.
The Reformed Procedure,1 adopted in England and in the larger number of our States, and which will undoubtedly be adopted in the remaining States, by abolishing Reformed the distinctions between forms of action at law Procedure. and in equity, and so wiping out the difference in procedure between courts of law and courts of equity, has enabled courts to determine both legal and equitable rights in one action. As already noted, the Judicature Act of England and the Practice Act of Connecticut expressly recognize the superiority of equitable rules by the provision that equitable rules shall prevail in case of conflict. So far, indeed, has Equity modified the common law that a writer already referred to has stated the result as follows: "The modes and notions of Equity gradually penetrated the common-law tribunals; equitable principles were invoked in the decision of legal actions; the common law has become scarcely distinguishable, in the underlying juridical forces which govern its movements, from the mass of doctrines which, taken together, are called equity jurisprudence; and this equity jurisprudence itself has grown to be vastly superior, in mag1 See Chapter XI.
nitude and importance, to the legal division of the double system which forms the entire law of England." 1
No mere sketch can properly state with any detail the relation of Equity to law or the influence of Equity upon law and legislation. The whole situation cannot perhaps be better summarized than by saying that the experience of two hundred years has demonstrated the necessity for the system known as Equity, and the intrinsic superiority of its rules over those of the common law; that in the common law itself there has been, especially during the later portion of this period, a very considerable adoption of equitable principles; that by statute many features before peculiar to Equity have been incorporated into the body of written law; and that the tendency both in this country and in England is towards the fusion and welding together of Law and Equity into a single harmonious system, - a tendency that to a very considerable degree has become an accomplished fact.
Unquestionably radical legislation, even constitutional changes, will be required, and long practice under such legislation, before such a welding shall have taken place as to render unnecessary the distinction between Law and Equity, when the only question will be, does a right exist, not, is there a legal right or an equitable right. Trial by jury, one of the original and one of the most important elements of distinction between Law and Equity, is in this country a constitutional right in common-law actions. Absolute merger between them cannot be effected as long as that right exists.
When the tricentennial of this University shall come, the present period will probably be taken as that when the amalgamation of common law and Equity into a single system both of substantive law and of procedure consciously and definitely began.
1 Pomeroy, Remedies, sec. 23.
MORTGAGES OF REAL PROPERTY
BY EDWIN B. GAGER, B.A.
A DISTINGUISHED jurist has said, with reference to the English law of security, "No clear, consistent, and comprehensive statement of principles can be made with regard to it." This is especially true of that branch of the law of security relating to mortgages of real property. Such a mortgage is one thing in Connecticut, another and quite different thing in New York. Indeed, the law upon the subject is hardly the same in any two States, while in all it differs materially from the law of England from which our law of mortgages has been derived.
As in the discussion of Equity, so here, we must begin with the state of the law relating to mortgages in England near the close of the seventeenth century. At The English common law, and uninfluenced by the doctrines doctrine. of Equity, a mortgage was strictly an estate upon condition, and is so treated by Littleton. If the mortgagor paid at the time stipulated in the condition he might re-enter as of his former estate; if he did not pay, the mortgagee's title became absolute. This is exactly what the non-professional reader of a mortgage, as ordinarily drawn at the present time, would understand from the language of the document. The hardship often resulting from this view led courts of
1 Markby, Elements of Law, 5th ed., sec. 481.