Courts of equity act on the person independently of damages as a remedy. were applicable to cases in partition, or in setting out boundaries. These, and other similar cases which might be mentioned, seem to show that many remedies are common to both courts of law and of equity, and that each court has some advantages over the other in the administration of the law; and if this outline shall serve to render the subject more clear to the student, the object in view will have been attained. ARTICLE II. EQUITABLE SUITS. Section 1. Courts of equity act on the person independently of damages as a remedy. There is no feature of relief or remedy, afforded by the courts, of a higher value than that of acting directly upon the person of the party who would deliberately violate his contracts, or invade the possessions of another. The relief given by a court of equity may be described as of a positive character, giving the specific thing which the parties are entitled to, while actions at law, with few exceptions, give only the negative remedy of compensation by damages for a deprivation or violation of the true right. 3 Broom & Had. 65, 66. Wherever possible, equity takes care that a right shall be actually enjoyed, and with this view will interfere to prevent a violation of that right. A court of law will not interfere till the violation be effected. It, for instance, will, when a breach of covenant in a lease or in a contract between land owners has been committed, give damages for the breach; but a court of equity will do more, it will anticipate the event, and restrain a person who merely shows an intention to break his covenants. Or, to take another example illustrating the beneficial result obtained by such ready interference, damages will be given in the one court if a man has been carrying on a trade in some particular locality in violation of his contract with another man not to do so. But these damages, which will be only given for past acts of trading, are, it may be, of small value as a remedy compared with the effectual relief which the other court gives. by prohibiting the trade on pain of imprisonment. Ib. The two kinds of justice which may be obtained, the one strictly remedial, the other preventive, in respect of the violation of continuing rights, are clearly different in kind; one is legal, the Equity compels the performance of acts specifically. other equitable; and neither of the two courts will usurp the functions of the other. Ib. A clear illustration of the advantages of an equitable remedy over that afforded by a common-law court may be seen in the case of compelling a party to convey lands which are situated in another State. Gardner v. Ogden, 22 N. Y. (8 Smith) 327; Fenner v. Sanborn, 37 Barb. 610; Bailey v. Ryder, 10 N. Y. (6 Seld.) 363; Newton v. Bronson, 13 N. Y. (3 Kern.) 587. And yet a common-law action will not lie here for a trespass upon real estate lying in that State. Watts v. Kinney, 6 Hill, 82; Hurd v. Miller, 2 Hilt. 540; Mott v. Coddington, 1 Abb. N. S. 290; 1 Rob. 267; Wait's Code, 24, 25, 26. In such case the court has no jurisdiction, unless the person to whom its orders or decrees are addressed is within the reach of the court or amenable to its jurisdiction. The person must be not only within the reach of the court as to locality, but he must have such a character as shall render him personally amenable to the jurisdiction. See Parties to Action. The fact that the orders and decrees of the court operate immediately upon persons has had the effect of giving the court a very extensive jurisdiction. As a consequence of this rule, the court may exercise jurisdiction quite independently of the locality of the act to be done, provided the person against whom relief is sought is within the reach and amenable to the process of the court. In exercising the jurisdiction, the court does not lay any claim to the exercise of judicial or administrative rights in a foreign country, but proceeds solely on the circumstance that the person to whom the order or decree is addressed is within reach of the court. Section 2. Equity compels the performance of acts specifically. Another breach of the same kind of positive relief is the power which the court exercises of compelling the specific performance of agreements. A man may be indirectly compelled to carry out his contract by the fear of being mulcted in damages by a court of law, in the event of his failing to do so; but another and often a desirable mode, is to insist upon his performing the duty which he owes under the contract by putting him in prison till he does so. 3 Broom & Had. 67. See the next preceding section. Rights which are recognized and protected, and wrongs which are redressed by common-law courts, are called legal rights and 3 Equity compels the performance of acts specifically. legal injuries; rights which are recognized and protected, and wrongs which are redressed by courts of equity, are called equitable rights and equitable injuries. The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity. The distinction between courts of common law and courts of equity will be better understood by considering the different natures of the rights they are designed to recognize and protect, the different natures of the remedies which they apply, and the different natures of the forms and modes of proceeding which they adopt to accomplish their respective ends. In all strictly common-law courts, there are certain prescribed forms of action to which the party must resort to furnish him a remedy; and, if there be no prescribed form to reach such a case he is remediless; for these courts do not entertain jurisdiction except in certain actions, and they give relief according to the particular exigency of such actions, and nototherwise. In those actions none but a general and unqualified judgment can be given, which is either for the plaintiff or for the defendant, without any adaptation of it to particular circumstances. There are, however, many cases in which a simple judgment for either party, without qualifications, or conditions, or peculiar arrangements, will not do entire justice to either party. Some modifications of the rights of both parties may be required; some restraints on the one side or on the other, or, perhaps, on both sides; some adjustments involving reciprocal obligations, or duties; some compensatory or preliminary, or concurrent proceedings to fix, control or equalize rights; some qualifications or conditions, present or future, temporary or permanent, to be annexed to the exercise of rights, or the redress of injuries. In all these cases, courts of common law cannot give the desired relief. They have no forms of remedy adapted to the objects. They can entertain suits only in a prescribed form, and they can give a general judgment only in the prescribed form. Hence by their very character and organization they are incapable of furnishing the remedy which the mutual rights and relative situations of the parties, under the circumstances, positively require. But courts of equity are not so restrained; although they have prescribed forms of proceeding, the latter are flexible, and may Equity restrains the commission of wrongful acts. be suited to the different postures of cases. They may adjust their decrees so as to meet most, if not all, of these exigencies; and they may vary, qualify, restrain, and model the remedy, so as to suit it to mutual and adverse claims, controlling equities and the real and substantial rights of all the parties. Nay, more; they can bring before them all parties interested in the subjectmatter, and adjust the rights of all, however numerous, whereas, courts of common law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons may have the deepest interest in the event of the suit. So that one of the most striking and distinctive features of courts of equity is, that they can adapt their decrees to all the varieties of circumstances which may arise, and adjust them to all the peculiar rights of all the parties in interest; whereas, courts of com mon law are bound down to a fixed and invariable form of judgment in general terms, altogether absolute, for the plaintiff, or for the defendant. Section 3. Equity restrains the commission of wrongful acts. Courts of equity possess a power of restraining the person in relation to particular acts, which is not only a useful but most efficient remedy. The principle upon which the court acts is, that whenever damage is caused or threatened to property, admitted or legally adjudged to belong to the plaintiff, by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong. And though damages cannot be given in equity for the plaintiff's loss, yet, in some cases, if the defendant has made a profit, he will be decreed to account. Adams' Eq. 207. See ante, 16, § 1. The equity is not confined in principle to any particular acts; those in respect of which it is most commonly enforced are five in number, viz.: waste, destruction, trespass, nuisance, infringment of patent right, and infringment of copyright. There are three incidents connected with this equity which ought to be mentioned. The equity attaches only on an admitted or legally adjudged right in the plaintiff, admitted or legally adjudged to be infringed by the defendant; it prohibits the continuance as well as the commission of a wrong; and it extends to an account of the defendant's profit. Adams' Eq. 217. Acts without jury - Grants or refuses relief. The relief afforded in equity is either remedial or preventive. The court either grants positive and affirmative relief, or restrains the doing of acts which are against equity and conscience. In giving remedial relief, the court usually proceeds by decree, while preventive relief is administered by injunction. Section 4. Equity generally acts without the aid of a jury. The right to trial by jury in common-law actions, as a matter of course and of right, does not exist in courts of equity. It is one of the fundamental rules of equity practice, that questions of fact are to be decided by the court without the intervention of a jury. And from the nature of the issues to be tried, and the peculiar equities to be administered, this mode of trial is an advantageous one. In disposing of causes, a court of equity does not always render a final decision at once, as upon the trial of a cause by a jury; for, there may be numerous issues or facts to be investigated, before a final decree can be properly made. If a preliminary decree is proper, it is usually in such cases as the following: 1. That in the course of the suit a dispute has arisen on a matter of law, which the court is unwilling to decide; 2. That a similiar dispute has arisen on a matter of fact; 3. That the equity claimed is founded on an alleged legal right, the decision of which the court of chancery declines to assume; and, 4. That there are matters to be investigated which, although within the province of the court, are such as the presiding judge cannot at the hearing effectually deal with. Adams' Eq. 375. To obviate these impediments the preliminary decree directs: 1. A case for a court of law; 2. An issue for a jury; 3. An action at law, to be determined in the ordinary course; or, 4. A reference to one of the masters of the court, to acquire and impart to it the necessary information. Ib. Each of these methods* of inquiry may be also adopted on interlocutory applications by motion or petition. Ib. The particular cases or circumstances which may require such proceedings will be elsewhere explained. Section 5. Relief granted or refused as justice requires. The principles upon which the jurisdiction of courts of equity proceed are these, conscience, good faith, honesty and equity. And, in the exercise of its powers, one general maxim in early times was, that chancery would take cognizance of such cases only as were not remediable by the common law. But this jurisdiction was not merely suppletory, it was also corrective. In some cases it gave relief where none could be had at law; and, in other |