§2. Same Now it would be a great mistake to suppose that Equity, as, administered in England or America, embraced a jurisdiction so wide and extensive as that which arises from the principles of natural justice above stated. Probably the jurisprifdence of no civilized nation ever attempted so wide a range of duties for any of its judicial tribunals. Even the Roman law, -which has been justly thought to deal to a vast extent in matters ex æquo et bono, never affected so bold a design. On the contrary it left many matters of natural justice wholly unprovided for, from the difficulty of framing any general rules to meet them, and from the doubtful nature of the policy of attempting to give a legal sanction to duties of imperfect obligation, such as charity, gratitude, and kindness, or even to positive engagements of parties, where they are not founded in what constitutes a meritorious consideration.2 Thus it is well known that in the Roman law, as well as in the common law, there are many pacts, or promises of parties (nude pacts), which produce no legal obligation capable of enforcement in foro externo, but which are left to be disposed of in foro conscientiæ only.3 Cum nulla subest causa propter conventionem, hic constat non posse constitui obligationem. Igitur nuda pactio obligationem non parit." 4 And again: And again: "Qui autem promisit sine causa, condicere quantitatem non potest, quam non dedit, sed ipsam obligationem.' And hence the settled distinction, in that law, between natural obligations, upon which no action lay, but which were merely binding in conscience, and civil obligations, which gave origin to actions.6 The latter were sometimes called just, because of their perfect obligation in a civil sense; the former merely equitable, because of their imperfect obligation. "Et justum appellatur," says Wolfius, “quicquid fit secundum jus perfectum alterius; æquum vero, quod secundum

Topic. 2; II. ad Heren. 13; III. ad Heren. 2. Bracton has referred to the various senses in which "jus" is used. "Item," says he, "jus quandoque ponitur pro jure naturali, quod semper bonum et æquum est; quandoque pro jure civili tantum; quandoque pro jure prætorio tantum; quandoque pro eo tantum, quod competit ex sententia.' Bracton, Lib. 1, ch. 4, p. 3. See Dr. Taylor's definition of "lex" and "jus." Elem. Civ. Law, pp. 147, 148; Id. 178; Id. 40 to 43; Id. 55, 56; Id. 91.

1 See Heinecc. Hist. Edit. L. 1, ch. 6; De Edictis Prætorum, §§ 7, 8, 9, 10, 11, 12; Id. §§ 18, 21 to 30; De Lolme on Eng. Const. B. 1, ch. 11.

2 Ayliffe, Pand. B. 4, tit. 1, p. 420, &c.; 1 Kaims, Equity, Introd. p. 3; Francis, Maxims, Introd. pp. 5, 6, 7.

3 Ayliffe, Pand. B. 4, tit. 2, pp. 424, 425; 1 Domat, Civ. Law, B. 1, tit. 1, § 5, arts. 1, 6, 9, 13.

4 Dig. Lib. 2, tit. 14, 1. 7, § 4.

5 Dig. Lib. 12, tit. 7, 1. 1.

Ayliffe, Pand. B. 4, tit. 1, pp. 420, 421.

imperfectum."1 Cicero has alluded to the double sense of the word "Equity" in this very connection. "Equitatis," says he, "autem vis est duplex; cujus altera directi et veri et justi, ut dicitur, æqui et boni ratione defenditur; altera ad vicissitudinem referendæ gratiæ pertinet; quod in beneficio gratia, in injuria ultio nominatur." 2 It is scarcely necessary to add that it is not in this latter sense, any more than in the broad and general sense above stated, which Ayliffe has with great propriety denominated "Natural Equity", because it depends on and is supported by natural reason, that equity is spoken of as a branch of English Jurisprudence. The latter falls appropriately under the head of "Civil Equity", as defined by the same author, being deduced from and governed by such civil maxims as are adopted by any particular state or community.3

§3. Same. But there is a more limited sense in which the term is often used, and which has the sanction of jurists in ancient as well as in modern times, and belongs to the language of common life as well as to that of juridical discussions. The sense here alluded to is that in which it is used in contradistinction to strict law, or strictum et summum jus. Thus Aristotle has defined the very nature of equity to be the correction of the law wherein it is defective by reason of its universality. The same sense is repeatedly recognized in the Pandects. "In omnibus quidem, maxime tamen in jure, æquitas spectanda sit. Quotiens æquitas, desiderii naturalis ratio, aut dubitatio juris moratur, justis decretis res temperanda. Placuit in omnibus rebus præcipuam esse justitiæ æquitatisque, quam stricti juris rationem." 5 Grotius and Puffendorf have both adopted the definition of Aristotle; and it has found its way, with approbation, into the treatises of most of the modern authors who have discussed the subject.

1 Wolff. Instit. Jur. Nat. et Gent. P. 1, ch. 3, § 83. 2 Cic. Orat. Part. § 37.

3 Ayliffe, Pand. B. 1, tit. 7,

p. 37.

4 Arist. Ethic. Nicom. L. 5, ch. 14, cited 1 Wooddes. Lect. (Lect. vii.) p. 193; Taylor, Elem. of Civ. Law, pp. 91, 92, 93; Francis, Maxims, 3; 1 Fonbl. Eq. B. 1, § 2, p. 5, note (e). Cicero, speaking of Galba, says that he was accustomed, "Multa pro æquitate contra jus dicere." Cic. de Oratore, Lib. 1, § 57. See also other passages, cited in Taylor's Elem. of the Civ. Law, pp. 90, 91. Bracton defines equity as contradistinguished from law ("jus"), thus: "Equitas autem est rerum convenientia, quæ in paribus causis paria desiderat jura, et omnia bene coæquiparat; et dicitur æquitas, quasi æqualitas.' Bracton, Lib. 1, ch. 4, § 5, p. 3.

5 Dig. Lib. 50, tit. 17, 1. 85, 90; Cod. Lib. 3, tit. 1, 1. 8. Grotius de Equitate, ch. 1, § 3; Puffend. Law of Nature and Nat. B. 5, ch. 12, § 21, and Barbeyrac's note (1); 1 Black. Comm. 61; 1

[Fraud is a well recognized ground of equity jurisdiction, and the statement of this principle is often made without limitation, but it has its limitations nevertheless. If the fraud amounts to nothing more than a mere tort, usually expressed by the phrase, "an injury by fraud and deceit ", making a case in which the remedy at law is complete and fully adequate, there is no ground of equity jurisdiction. It is much easier to state the few instances in which courts of equity decline cognizance of causes of action arising out of fraud than to enumerate the great number of instances in which it does intervene.1]

66

§ 4. Same. In the Roman Jurisprudence we may see many traces of this doctrine, applied to the purpose of supplying the Wooddes. Lect. vii. p. 193; Bac. de Aug. Scient. Lib. 8, ch. 3, Aphor. 32, 35, 45. Grotius says, "Proprie vero et singulariter æquitas est virtus voluntatis, correctrix ejus, quo lex propter universalitatem deficit." Grotius de Equitate, ch. 1, § 2. "Equum est id ipsum, quo lex corrigitur." Id. Dr. Taylor has with great force paraphrased the language of Aristotle. "That part of unwritten law," says he, "which is called Equity, or rd ETLIKES, is a species of justice distinct from what is written. It must happen either against the design and inclination of the lawgiver, or with his consent. In the former case, for instance, when several particular facts must escape his knowledge; in the other, when he may be apprized of them indeed but by reason of their variety is not willing to recite them. For if a case admits of an infinite variety of circumstances, and a law must be made, that law must be conceived in general terms." Taylor, Elem. Civ. Law, 92. And of this infirmity in all laws the Pandects give open testimony. "Non possunt omnes articuli singillatim aut legibus, aut senatusconsultis comprehendi; sed cum in aliqua causa sententia eorum manifesta est, is, qui jurisdictioni præest, ad similia procedere, atque ita jus dicere debet." Dig. Lib. 1, tit. 3, l. 12; Id. 1. 10. "Equity acts in those matters only in which no remedy is afforded in ordinary course of law, and court must determine in limine whether it has jurisdiction." Wilson v. Sax, 21 Mont. 385, 54 Pac. 46.

1 "Where private citizen brings action to prevent a public wrong, from which he would suffer injury peculiar to himself, an injunction may be awarded to prevent commission of threatened crime, and objection will not be heard that equity powers of court cannot be employed to aid in enforcing criminal laws by thus preventing crime about to be committed. Columbian Athletic Club v. State, 143 Ind. 107, 40 N. E. 914; Littleton v. Fritz, 65 Iowa 488, 22 N. W. 641; State v. Crawford, 28 Kans. 726; Carleton v. Rugg, 149 Mass. 555, 22 N. E. 55; Dist. Atty. etc. v. Lynn etc. R. Co., 16 Gray 242; Attorney-Gen. etc. v. Ice Co., 104 Mass. 239; Bancroft v. Cambridge, 126 Mass. 438.

A court of equity will entertain a bill to enjoin a proposed nuisance by one who might not be able to maintain an action at law, but the courts in such cases will act with great caution in interfering at the suit of private individuals. Pedrick v. Railroad, 143 N. C. 498, 55 S. E. 877. "Courts of equity have no criminal jurisdiction, but where it is obviously necessary that a nuisance should be immediately suppressed, as in case of a powder house, or a slaughter house, or a chemical laboratory, equity will interfere, until the slower process by indictment could

defects of the customary law, as well as to correct and measure the interpretation of the written and positive code. Domat accordingly lays it down, as a general principle of the civil law, that if any case should happen which is not regulated by some express or written law, it should have for a law the natural principles of equity, which is the universal law, extending to everything. And for this he founds himself upon certain texts in the Pandects, which present the formulary in a very imposing generality. "Hæc Equitas suggerit, etsi jure deficiamur", is the reason given for allowing one person to restore a bank or dam in the lands of another, which may be useful to him, and not injurious to the other.2

[The ingenuity of man in devising new forms of wrong cannot outstrip equity in its development. In all situations and under all circumstances, whether new or old, the principles of equity will point the way to justice where legal remedies are infirm. Precedents will be a constant guide, but never a bar. Where a new condition exists, and legal remedies afforded are inadequate or none are afforded at all, the never failing capacity of equity to adapt itself to all situations will be found equal to the case, extending old principles, if necessary, not adopting new ones, for that purpose.3]

be put in motion. Swathmore Lumber Co. v. Parks, 72 W. Va. 625, 79 S. E. 725; Rowe v. Granite Bridge Co., 21 Pick. 344; People v. Davidson, 30 Cal. 388; Clark v. Lawrence, 59 N. C. 83; Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 Atl. 1081; Cherry v. Williams, 147 N. C. 459, 61 S. E. 267.

1 Domat, Prel. Book, tit. 1, § 1, art. 23. See also Ayliffe, Pand. B. 1, tit. 7, p. 38.

2 Dig. Lib. 39, tit. 3, 1. 2, § 5. Domat cites other texts not perhaps quite so stringent; such as Dig. Lib. 27, tit. 1, 1. 13, §7; Id. Lib. 47, tit. 20, 1. 7. Dr. Taylor has given many texts to the same purpose. Elem. Civ. Law, pp. 90, 91. There was a known distinction in the Roman law on this subject. Where a right was founded in the express words of the law, the actions grounded on it were denominated Actiones Directæ ; where they arose upon a benignant extension of the words of the law to other cases, not within the terms, but within what we should call the equity of the law, they were denominated Actiones Utiles. Taylor, Elem. Civ. Law, 93.

It is held however that equity will not aid the doing of what would work no good to the plaintiff but only hardship to the defendant. Joliet R. Co. v. Healy, 94 Ill. 416. But while equity will not aid in enforcing a mere legal right in such a case, it is held that equity will not enjoin the owner of the right from proceeding to exercise it. Clinton v. Myers, 46 N. Y. 511

3 Harrigan v. Gilchrist, 121 Wis. 235, 99 N. W. 909. When equity interposes, it will make its interposition complete. The arm of equity is not shortened, but will reach out to secure full

§ 5. Jurisdiction of the Prætor. - The jurisdiction of the prætor doubtless had its origin in this application of equity, as contradistinguished from mere law. "Jus autem civile," say the Pandects, "est, quod ex legibus, plebiscitis, senatusconsultis, decretis principum, auctoritate prudentum venit. Jus prætorium est, quod prætores introduxerunt, adjuvandi, vel supplendi, vel corrigendi juris civilis gratia, propter utilitatem publicam; quod et honorarium dicitur, ad honorem prætorum sic nominatum."1 But broad and general as this language is, we should be greatly deceived if it were to be supposed that even the prætor's power extended to the direct overthrow or disregard of the positive law. He was bound to stand by that law in all cases to which it was justly applicable, according to the maxim of the Pandects, “Quod quidem perquam durum est; sed ita lex scripta est."

"2

right in the premises, and where injunction has issued, a receiver will be appointed to effectuate judgment. Columbian Club v. State, 143 Ind. 110, 40 N. E. 914; Grasse v. H. W. Gossard Co., 152 Ill. App. 58; Sloss Iron & Steel Co. v. South Carolina & G. R. Co., 162 Fed. 546.

It is not necessary since the change in the constitution of our courts, the blending of the two systems of law and equity and the radical, though useful and practical innovations in pleading and in the practice and procedure of our courts, that a plaintiff who resorts to an equitable remedy for the protection of a right or the redress of a grievance should first reduce his claim to judgment and exhaust his legal remedy by execution or other appropriate process, as under the old system. This is not required to be done, but the right will be administered and full relief given in one action. Silk Co. v. Spinning Co., 154 N. C. 425, 70 S. E. 820; Smith v. White, 71 W. Va. 639, 78 S. E. 379; Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566; Hotchkiss v. Plaster Co., 41 W. Va. 357, 23 S. E. 576; Evans v. Kelley, 49 W. Va. 181, 38 S. E. 497; Grubb v. Starkey, 90 Va. 831, 20 S. E. 784; Miller v. Wills, 95 Va. 337, 28 S. E. 337.

Where there has been a conveyance of land with covenants of general warranty, which is a covenant real running with the land and is never considered as broken until an ouster, equity has power, nevertheless, to enjoin the collection of the purchase money before actual ouster, if it be clearly shown that the grantor's title is defective. Harvey v. 'Ryan, 59 W. Va. 134, 53 S. E. 7, 7 L. R. A. (N. s.) 445, 115 Am. St. Rep. 897.

1 Dig. Lib. 1, tit. 1, 1. 7; Id. tit. 3, 1. 10. "Sed et eas actiones, quæ legibus proditæ sunt," say the Pandects, "si lex justa ac necessaria sit, supplet prætor in eo, quod legi deest." Dig. Lib. 19, tit. 5, 1. 11. Heineccius, speaking of the prætor's authority, says, "His Edictis multa innovata, adjuvandi, supplendi, corrigendi juris civilis gratia, obtentuque utilitatis publicæ." 1 Heinecc. Elem. Pand. P. 1, Lib. 1, § 42.

2 Dig. Lib. 40, tit. 9, 1. 12, § 1. See also 3 Black. Comm. 430, 431; 1 Wooddes. Lect. vii. pp. 192 to 200. Dr. Taylor (Elem. of the Civil Law, p. 214) has therefore observed, that for this reason this branch of the Roman law was not reckoned as part of the jus civile scriptum by Papinian, but stands in opposition to it. And thus, as we distinguish between common law and equity, there were with that people actiones civiles et