dify
conceptions of proprietary right by means of the distinction between
Law and Equity, which always makes its first appearance as a
distinction between jurisdictions. Equitable property in England is
simply property held under the jurisdiction of the Court of Chancery.
At Rome, the Praetor's Edict introduced its novel principles in the
guise of a promise that under certain circumstances a particular
action or a particular plea would be granted; and, accordingly, the
property _in bonis_, or Equitable Property, of Roman law was property
exclusively protected by remedies which had their source in the Edict.
The mechanism by which equitable rights were saved from being
overridden by the claims of the legal owner was somewhat different in
the two systems. With us their independence is secured by the
Injunction of the Court of Chancery. Since however Law and Equity,
while not as yet consolidated, were administered under the Roman
system by the same Court, nothing like the Injunction was required,
and the Magistrate took the simpler course of refusing to grant to the
Civil Law Owner those actions and pleas by which alone he could obtain
the property that belonged in equity to another. But the practical
operation of both systems was nearly the same. Both, by means of a
distinction in procedure, were able to preserve new forms of property
in a sort of provisional existence, until the time should come when
they were recognised by the whole law. In this way, the Roman Praetor
gave an immediate right of property to the person who had acquired a
Res Mancipi by mere delivery, without waiting for the ripening of
Usucapion. Similarly he in time recognised an ownership in the
Mortgagee who had at first been a mere "bailee" or depositary, and in
the Emphyteuta, or tenant of land which was subject to a fixed
perpetual rent. Following a parallel line of progress, the English
Court of Chancery created a special proprietorship for the Mortgagor,
for the Cestui que Trust, for the Married Woman who had the advantage
of a particular kind of settlement, and for the Purchaser who had not
yet acquired a complete legal ownership. All these are examples in
which forms of proprietory right, distinctly new, were recognised and
preserved. But indirectly Property has been affected in a thousand
ways by equity both in England and at Rome. Into whatever corner of
jurisprudence its authors pushed the powerful instrument in their
command, they were sure