rights and of remedies, if any, stand in the way of such a result? What features and elements, on the other hand, tend to make such an amalgamation practicable? In order that these questions may be properly discussed and correctly answered, we must, in the first place, obtain a clear and accurate conception of equity itself. In what does equity consist? What are its constituent parts? In what respect does it differ from the other great branch of our jurisprudence, which is termed the common law, or "the law"? It must be confessed that great confusion exists in respect to these elementary and fundamental notions. We are familiar with the terms "equity" and "law;" we constantly speak of equitable and legal rights, causes of action, and modes. of procedure; and yet very little attempt has been made by even the best writers to point out the exact elements of distinction between the subjects of which we so frequently speak. The historical origin and growth of equity jurisprudence have been sufficiently illustrated in the introductory chapter. As the final result of this growth, the municipal law of England and of the several States was separated into two divisions or branches, each administered by different tribunals, and each conferring different remedies or reliefs. Are these two divisions or branches antagonistic to each other, or are they simply complementary, or does one merely occupy a sphere which the other does not? Are the primary rules, rights, and duties embraced in the department of law different from the primary rules, rights, and duties which are embraced in the department of equity; or does the distinction lie solely in the remedies and remedial rights which arise from the violation of the common primary rules, and in the judicial processes by which these remedies are obtained? These questions present themselves, and must be answered, if we would determine the exact nature of equity as distinguished from law. I cannot reply to these inquiries in detail; to do so would require an exhaustive treatise upon equity jurisprudence. I can only give general results, and illustrate these conclusions by a few familiar examples, leaving it to the reader to pursue the illustration through the entire domain of equity.

§ 46. Applying a thorough analysis to this department of the municipal law, examining the essential nature of each practical rule and principle contained in it, equity as a whole, and so far as it is different from the law, is resolved into and consists of the

following constituent parts; namely, first, certain primary rules, with the primary rights and duties flowing from them, irrespective of the remedies, which are different from the primary rules upon the same subject-matter, with the primary rights and duties. flowing therefrom, which are contained in the law; and, secondly, certain remedies which are known and conferred, irrespective of any distinction in the primary rules and rights for whose violation the remedies are granted. The peculiar feature of equity, which distinguishes it as a department from the law, does not consist solely in the fact that remedies are known and used by it which the law does not know and use, nor solely in the fact that there are primary equitable rights and duties, irrespective of the remedies, different from any at law, but in both of these facts combined. These propositions can be made plain by a few illustrative examples. First, equity as a department contains certain primary rules, with the primary rights and duties flowing from them, different from any rules upon the same subject-matter embraced in the law. In this proposition we disregard for the present the remedies which are given for the violation of primary rights; and we might assume, for the purposes of the discussion, that the remedies, the reliefs, given by equity were exactly the same, no more, no less, and no other than those given by the law, whatever might be the nature of the primary right broken; that is, that equity could give no judgments except the recovery of possession of lands or chattels, or the recovery of a sum of money. Upon that hypothesis there are primary equitable rights in relation to particular subjectmatters quite different from the primary legal rights in relation to the same subject-matters. In reference to most of these it would be proper to say that they are additional to those which exist at law; they do not contradict, they are not antagonistic to, any rules upon the same subject-matter which the common law provides; but they are supplementary, touching upon particulars in reference to which the law is silent. Between this class of equitable rules and the corresponding legal rules, there is therefore no conflict; each is absolutely true in all places and at all times; the equity courts recognize and administer one, the law courts recognize and administer the other, without clashing or discord. But in respect to another portion of these primary equitable rules and rights it must be said that they

are not merely additional to, but are in conflict with, the legal rules and rights upon the same subject-matter; between this class of equitable rules and rights and the corresponding legal rules and rights there is therefore an antagonism; the equity courts admit and uphold a particular right as growing out of a particular condition of circumstances which the law courts not only refuse to recognize, but which they would deny and oppose. To this extent there is a contrariety and discord between the two departments of the municipal law, which cannot be concealed, but which has gradually grown less and less, and which will finally disappear.

§ 47. A few examples will illustrate these statements. At an early day the common-law rule was peremptory that the liability of the obligor upon a sealed undertaking, like a bond, could only be discharged by an instrument of the same legal value; that is, by a sealed release or acquittance. Mere payment, although evidenced by a written receipt, was not enough. The compulsive efficacy of the seal could only be overcome by an act of a legal nature equally high. If, therefore, the debtor on a bond had paid the demand in full, and had even taken a written receipt therefor, but had failed to procure a surrender of the obligation into his own custody, or a release of his liability thereon, the creditor might still sue in a common-law action on the bond, and the law gave no defence; the law said, in fact, that the liability still existed; the primary right of the creditor and the primary duty of the debtor remained unchanged. In the course of time the equity courts intervened; and this was one of the first steps which equity took in its long march towards the present completed results. The debtor upon the abovementioned facts existing, by commencing a suit in chancery, would obtain the remedy of an injunction perpetually restraining the creditor from the prosecution of his common-law action, and perhaps the remedy that the bond should be surrendered and cancelled. It is not the form of remedy at which I now wish to look, but at the primary equitable right for whose maintenance the remedy was contrived. Plainly the primary right and duty which equity here conferred upon the creditor and the debtor respectively were diametrically the opposites of the primary right and duty which the law conferred upon the same persons. The law said the original right of the creditor and duty of the debtor

were exactly the same as though the bond was in full force after default in payment. Equity said this original right of the creditor and duty of the debtor had been absolutely changed and destroyed, that the liability on the obligation had ended, that the duty of the obligor to pay had gone, and that in its place a right had arisen that the evidence of such payment and discharge should be made perfect by the acts of the obligee. It would be a mistaken view to assert that equity here simply granted a remedy to the debtor which the law did not give. Remedies are not conferred by equity courts any more than by law courts, unless there is a primary right and duty which has been violated, and from the breach of which a remedial right and duty arises. In the case supposed, the law most emphatically said the primary right of the creditor upon the bond still existed unaffected, and the primary duty of the debtor remained undiminished, and gave the legal remedies to enforce the same. Equity as emphatically denied all this, and asserted that there was no such primary right or duty left in existence. There was, therefore, a plain and direct conflict in the primary rights and duties which flowed from exactly the same facts and circumstances. This is a simple illustration of the class of equitable primary rights and duties which are opposed and antagonistic to the corresponding primary legal rights and duties. It is true this particular antagonism no longer exists. Either by means of the gradual adoption of equitable principles by the common-law courts or by means of statutes, the same rule as to the discharge of a sealed obligation applies in law as in equity, and the defence of payment and discharge can be set up in a legal action ; but this does not lessen the appropriateness of the illustration.

§ 48. If we carefully analyze the whole body of equitable primary rules, we shall find but few in which there is any direct conflict with the legal rules relating to the same subject-matter. In many instances where there was once such contrariety, we shall discover that the law has been changed from its original arbitrariness, and has been made to conform with the equitable doctrine. Another example will illustrate the large class of equitable primary rules and rights which are simply additional to those recognized by the law. A. enters into a contract in writing by which he agrees to convey to B., by a good and sufficient deed, a parcel of land, upon being paid the purchase price in a

stipulated manner; the price is paid, and A. refuses to convey. Or, again, A. receives from B. a sum of money under an authority and agreement to purchase therewith for B. a parcel of land, taking the deed to the latter; he purchases the land with the money, but takes the conveyance thereof to himself. In the first case the law sees nothing but a contract, and the rights which flow therefrom. B. has a right in personam against A., but no right in rem, no right of property in the land. There has been a violation of contract; and the law, regarding no other relations between the parties, gives to B. the remedy of compensation. This primary personal right, and also this remedial right, would, upon the death of B., pass to his administrators or executors. Equity, applying the great principle of regarding as done what ought to have been done, clothes B. with another and broader primary right additional, but in no wise antagonistic to that which the law creates. It says that B. has acquired a right in rem, a right of property in the land, an ownership which is called equitable, it is true, but none the less an actual ownership. The land is B.'s, and not A.'s; and the proprietary right upon B.'s death descends to his heirs, and is subject to the dower of his widow. There is nothing here contrary to the legal view; because while equity gives to B. a property in the land, and furnishes him with remedies appropriate to maintain and secure that proprietorship, it does not deny nor override his legal right; the latter is left in full force and effect. In fact, B. has an election. Relying upon his mere personal right flowing from the contract, he or his executors or administrators may sue in a court of law to recover damages for a violation of the agreement; or, relying upon his real right, — his ownership of the land, — he or his heirs may sue in a court of equity, and have his proprietorship established, the legal muniments of his title perfected, and the possession transferred. In the other supposed case there is a contract and a fraud. The law still sees nothing but a personal right growing out of the deceit and the fraudulent violation of the agreement; while equity, not denying that, recognizes also a real right in the land, treats B. as the owner thereof, and enables him to establish that ownership, and to obtain possession. It is a glaring error to suppose, as does a recent English writer on the principles of equity, that in these and similar instances equity only furnishes different remedies from those known to the law.