2.
The office of chancellor is of Roman origin. He appears, at first, to
have been a chief scribe or secretary, but he was afterwards invested
with judicial power, and had superintendence over the other officers of
the empire. From the Romans, the title and office passed to the church,
and therefore every bishop of the catholic church has, to this day, his
chancellor, the principal judge of his consistory. When the modern
kingdoms of Europe were established upon the ruins of the empire, almost
every state preserved its chancellor, with different jurisdictions and
dignities, according to their different constitutions. In all he seems
to have had a supervision of all charters, letters, and such other
public instruments of the crown, as were authenticated in the most
solemn manner; and when seals came into use, he had the custody of the
public seal.
3.
An officer bearing this title is to be found in most countries of
Europe, and is generally invested with extensive authority. The title
and office of chancellor came to us from England. Many of our state
constitutions provide for the appointment of this officer, who is by
them, and by the law of the several states, invested with power as they
provide. Vide Encyclopedie, b. t.; Encycl.. Amer. h. t.; Dict. de Jur.
h. t.; Merl. Rep. h. t.; 4 Vin. Ab. 374; Blake's Ch. Index, h. t.;
Woodes. Lect. 95.
CHANCERY. The name of a court exercising jurisdiction at law, but mainly in equity.
2.
It is not easy to determine how courts of equity originally obtained
the jurisdiction they now exercise. Their authority, and the extent of
it, have been subjects of much question, but time has firmly established
them; and the limits of their jurisdiction seem to be in a great degree
fixed and ascertained. 1 Story on Eq. ch. 2; Mitf. Pl. Introd.; Coop.
Eq. Pl. Introd. See also Butler's Reminiscences, 38, 40; 3 Bl. Com. 435;
2 Bin. 135; 4 Bin. 50; 6 Bin. 162; 2 Serg. & R. 356; 9 Serg. &
R. 315; for the necessity, origin and use of courts of chancery.
3.
The judge of the court of chancery, often called a court of equity,
bears the title of chancellor. The equity jurisdiction, in England, is
vested, principally, in the high court of chancery. This court is
distinct from courts of law. " American courts of equity are, in some
instances, distinct from those of law, in others, the same tribunals
exercise the jurisdiction both of courts of law and equity, though their
forms of proceeding are different in their two capacities. The supreme
court of the United States, and the circuit courts, are invested with
general equity powers, and act either as court's of law or equity,
according to the form of the process and the subject of adjudication. In
some of the states, as New York, Virginia, and South Carolina, the
equity court is a distinct tribunal, having its appropriate judge, or
chancellor, and officers. In most of the states, the two jurisdictions
centre in the same judicial officers, as in the courts of the United
States; and the extent of equity jurisdiction and proceedings is very
various in the different states, being very ample in Connecticut, New
York, New Jersey, Maryland, Virginia, and South Carolina, and more
restricted in Maine, Massachusetts, Rhode Island, and Pennsylvania. But
the salutary influence of these powers on the judicial administration
generally, by the adaptation of cbancery forms and modes of proceeding
to many cases in which a court of law affords but an imperfect remedy,
or no remedy at all, is producing a gradual extension of them in those
states where they have been, heretofore, very limited."
4.
The jurisdiction of a court of equity differs essentially from that of a
court of law. The remedies for wrongs, or for the enforcement of
rights, may be distinguished into two classes those which are
administered in courts of law, and those which are administered in
courts of equity. The rights secured by the former are called legal;
those secured by the latter are called equitable. The former are said to
be rights and remedies at common law, because recognized and enforced
in courts of common law. The latter are said to be rights and remedies
in equity, because they are administered in courts of equity or
chancery, or by proceedings in other courts analogous to those in courts
of equity or chancery. Now, in England and America, courts of common
law proceed by certain prescribed forms, and give a general judgment for
or against the defendant. They entertain jurisdiction only in certain
actions, and give remedies according to the particular exigency of such
actions. But there are many cases in which a simple judgment for either
party, without qualifications and conditions, and particular
arrangements, will not. do entire justice, ex aequo et bono, to either
party. Some modification of the rights of both parties is required; some
restraints on one side or the other; and some peculiar adjustments,
either present or future, temporary or perpetual. Now, in all these
cases, courts of common law have no methods of proceeding, which can
accomplish such objects. Their forms of actions and judgment are not
adapted to them. The proper remedy cannot be found, or cannot be
administered to the full extent of the relative rights of all parties.
Such prescribed forms of actions are not confined to our law. They were
known in the civil law; and the party could apply them only to their
original purposes. In other cases, he had a special remedy. In such
cases, where the courts of common law cannot grant the proper remedy or
relief, the law of England and of the United States (in those states
where equity is administered) authorizes an application to the courts of
equity or chancery, which are not confined or limited in their modes of
relief by such narrow regulations, but which grant relief to all
parties, in cases where they have rights, ex aequo et bono, and modify
and fashion that relief according to circumstances. The most general
description of a court of equity is, that it has jurisdiction in cases
where a plain, adequate and complete remedy cannot be had at law that
is, in common law courts. The remedy must be plain; for, if it be
doubtful and obscure at law, equity will assert a jurisdiction. So it
must be adequate at law; for, if it fall short of what the party is
entitled to, that founds a jurisdiction in equity. And it must be
complete; that is, it must attain its full end at law it must reach the
whole mischief and secure the whole right of the party, now and for the
future otherwise equity will interpose, and give relief. The
jurisdiction of a court of equity is sometimes concurrent with that of
courts of, law and sometimes it is exclusive. It exercises concurrent
jurisdiction in cases where the rights are purely of a legal nature, but
where other and more efficient aid is required than a court of law can
afford, to meet the difficulties of the case, and ensure full redress.
In some of these cases courts of law formerly refused all redress but
now will grant it. But the jurisdiction having been once justly acquired
at a time when there was no such redress at law, it is not now
relinquished. The most common exercise of concurrent jurisdiction is in
cases of account, accident, dower, fraud, mistake, partnership, and
partition. The remedy is here often more complete and effectual than it
can be at law. In many cases falling under these heads, and especially
in some cases of fraud, mistake and accident, courts of law cannot and
do not afford any redress; in others they do, but not always in so
perfect a manner. A court of equity also is assistant to the
jurisdiction of courts of law, in many cases, where the latter have no
like authority. It will remove legal impediments to the fair decisiou of
a question depending at law. It will prevent a party from improperly
setting up, at a trial, some title or claim, which would be inequitable.
It will compel him to discover, on his own oath, facts which he knows
are material to the rights of the other party, but which a court of law
cannot compel the party to discover. It will perpetuate the testmony of
witnesses to rights and titles, which are in danger of being lost,
before the, matter can be tried. It will provide for the safety of
property in dispute pending litigation. It will counteract and control,
or set aside, fraudulent judgments. It will exercise, in many cases, an
exclusive jurisdiction. This it does in all cases of morely equitable
rights, that is, such rights as are not recognized in courts of law.
Most cases of trust and confidence fall under this head. Its exclusive
jurisdiction is also extensively exercised in granting special relief
beyond the reach of the common law. It will grant injunctions to prevent
waste, or irreparable injury, or to secure a settled right, or to
prevent vexatious litigations, or to compel the restitution of title
deeds; it will appoint receivers of property, where it is in danger of
misapplication it will compel the surrender of securities improperly
obtained; it will prohibit a party from leaving the country in order to
avoid a suit it will restrain any undue exercise of a legal right,
against conscience and equity; it will decree a specific performance of
contracts respecting real estates; it will, in many cases, supply the
imperfect execution of instruments, and reform and alter them according
to the real intention of the parties; it will grant relief in cases of
lost deeds or securities; and, in all cases in which its interference is
asked, its general rule is, that he who asks equity must do equity. If a
party, therefore, should ask to have a bond for a usurious debt given
up, equity could not decree it, unless he could bring into court the
money honestly due without usury. This is a very general and imperfect
outline of the jurisdiction of a court of equity; in respect to which it
has been justly remarked, that, in matters within its exclusive
jurisdiction, where substantial justice entitles the party to relief,
but the positive law is silent, it is impossible to define the
boundaries of that jurisdiction, or to enumerate, with precision, its
various principles." Ency. Am. art. Equity. Vide Fonb. Eq.; Story on
Eq.; Madd. Ch. Pr.; 10 Amer. Jur. 227; Coop. Eq. Pl.; Redesd. Pl.; Newl.
Cb. Practice; Beame's Pl. Eq.; Jeremy on Eq.; Encycl. Amer. article
Equity, Court.
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