LAY BROTHERS

In its popular sense, common law is opposed to equity and ecclesiastical law; and thus comprises the whole of that law, both criminal and civil, which is administered.in courts having trial by jury, and all the other subjects which are within the purview of the common law courts of Westminster Hall, and of the various local jurisdictions of the country (except so far as some of them exercise equitable authority). It has been defined " the whole of that code, whether founded on statute, usage, or precedent, which is now administered in the common law courts of Westminster Hall; " and this definition will comprehend the law administered in the various local courts in question, as these are bound to act on the decisions of the superior courts. Its peculiar characteristic is, that questions of fact arising out of its proceedings are submitted to the decision of a jury. It is, perhaps, not very easy to a ign either the history or the theoretical principles of the separation of equity from common law. The former was undoubtedly in the first instance a jurisdiction of a remedial character, intended to moderate, according to the conscience of the judge, the rigour of leg^ judgments; but this is a peculiarity which can scarcely be said to distinguish it in the present day. Its rules are as accurately laid down by precedents as those of the common law itself j but there are some subjects (as, trusts) which, having been created in frustration of the provisions of the common law, are out of its cognizance. Over these courts of equity have an exclusive jurisdiction. There are others over which both equity and law have concurrent jurisdiction. But the remedies applied by law to injuries committed are subject to certain inflexible rules. The power of a jury has limits from the very nature of the institution. It can award a debt sought to be recovered, or damages for an injury; but it cannot modify the remedy according to peculiar circumstances. Nor has it any means to enforce a course of action other than by imposing damages for neglecting it. To take a familiar instance: — If A. sues B. at law for breach of covenant, and judgment pa es in favour of A., all that a jury can do is to award damages to A. for the breach of contract; but equity can, by a proce of its own, compel B. to a specific performance of the contract under the penalties attached to a contempt of court. So, if one of several joint contractors be liable, at law, for penalties or debts incurred in respect of their joint undertaking, his only legal remedy is by an action against each; in equity, he can compel each of his partners to contribute to the extent of their liability. LAW, [s. 659]