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believe that not a single law maxim can be pointed out not obnoxious to objection." Bacon, in his preface to his "Maxims of the Law," (of which he had collected over three hundred) declares "some of them are ordinary and vulgar, that now serve but for grounds and plain songs to the more shallow and impertinent sort of arguments."

Equity maxims are never cited as common law precedents are cited, as absolutely controlling the case at bar, but merely as erpressing the fundamental principle of equity ap plicable, or supposed to be applicable, to the issue. The chancellor draws upon the equity principles found in the maxim so far as applicable to the particular case. As said by Suell in his "Principles of Equity:" "Equity is preeminently a science, and like geometry, or any other science, it starts with and assumes certain maxims which are supposed to embody and express the fundamental notions of the scientist."

Pomeroy, in his admirable philosophical work upon Equity Jurisprudence, from which I have liberally drawn, as from a storehouse of wisdom, expresses in language so much beyond my power to equal, the influence of these several maxims upon the fundamental equity law, that I feel com pelled, in justice to those who hear this discourse, to quot what he says, in part at least:

"Sec. 360. The juridical principles of morality which thus constitute the ultimate source of equitable doctrines and rules, are of two classes, or grades. Underlying the entire body of equity jurisprudence, extending through every one of its departments and shaping to a greater or less extent its doctrines concerning almost every important subject, are certain broad, comprehensive precepts which are commonly denominated maxims of equity. These maxims are, in the strictest sense, the principia, the beginnings out of which has been developed the entire system of truth known as equity jurisprudence. They are not the practical and final doctrines or rules which determine the equitable rights and duties of individual persons and which are constantly cited by the courts in their decisions of judicial controversies;

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they are, rather, the fruitful germs from which these doctrines and rules have grown by a process of natural evolution. They do not exclusively belong either to the department which treats of equitable estates, property and other primary rights, nor to that which deals with equitable remedies; their creative and moulding influence is found alike throughout both these departments.”

After enumerating several of the maxims, he proceeds: "It is undeniable that a vast proportion of the actual doctrines and rules which make up the system of equity are necessary inferences from or direct applications of some one or more of these fundamental maxims. It is evident, therefore, that any full and accurate discussion of the doctrines and rules which constitute the two main divisions of equity jurisprudence must be preceded by an examination into the nature, meaning and effects of these few germinal principles."

I shall now attempt to show how "the most important of these principia have been crystallized into the pithy form of maxims, and have influenced and developed that grand system of truth known as Equity Jurisprudence."

I.

AGERE IN PERSONAM.

This is not only perhaps the first maxim enforced in the court of equity, but it may be not inaptly termed the germ of the equitable procedure and the father of equitable maxims.

It was this method of enforcing action in the interest of right and justice that caused jealousy on the part of the judges of the common law courts, and, for a time, produced confusion and greatly retarded progress in the equity court. The history of the long and bitter struggle between the law courts and the court of equity is well known to all students of the law and need not be here recounted. The struggle was whether the court of equity, by obtaining control of the conscience of a party, by getting jurisdiction over his person, should do justice between litigants in cases where the meth ods of the common law courts operated to produce injustice,

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or failed to do justice, by reason of their inflexible adherence to rigid "precedents" and forms. Lord Kames, in his Memoirs, in defining law and justice, says:

"Law from its very nature is mutable, susceptible of perpetual improvement, but justice, which is the object of law, is fixed, immutable and certain. The good judge, like an able pilot, will use the former as his compass; but, aware of its occasional error and variations, he will look to the latter as his polar star."

I remember at a meeting of the Sunset Club, one at which the subject of discussion was "The Delays of the Law," the presiding officer, a talented gentleman but not a lawyer, thus defined the difference between Law and Equity: "Now, when you go to law, you get the law as it is; when you go into equity, you get justice."

It would be unjust to claim at this day that one can only get justice in a court of equity, but at the time that court was struggling to get a foothold in the jurisprudence of England, so intolerable had become the failure of justice in the law courts, and so great the actual injustice perpetrated in their administration of the law, that the remark of the Sunset Club official would have been very near the truth, as applied to conditions then existing. The few writs then known, and all the machinery of the law was in the control of the law courts.

The court of equity was not originally a court of record, and therefore could bind the person only and "neither the state of the defendant's lands, nor property of his goods and chattels," It proceeded upon petition and without any writ or formalities. The defendant, having been notified, appeared to hear the king's pleasure through the chancellor; the petition was at once disposed of in a short order or decree, granting the relief prayed in whole or in part, or dismissing the same for want of equity.

As the nation progressed in population, in its industries, its commerce and its civilization, and these new and expanded

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conditions raised new questions for the action of the courts, the inadequacy of the rigid doctrines, rules and methods of the common law became more and more manifest. When to these changed conditions was added the introduction of "uses" into the conveyances of the nation, the absolute necessity of a court which could compel the performance of the use or trust was admitted even by the law judges. The court of equity did not attempt to invent new writs in opposition to those of common law, nor to put itself in defiance of the action of the law courts; nor did it set aside a judgment or attempt to act directly upon the writs or proceedings of the law courts, notwithstanding the law judges contended that the chancellor invented "conscience" as an element to be considered in a case for the purpose of founding a mode of proceedings in opposition to the law courts.

The great difficulty in dealing with uses and with trusts led to the adoption of the writ of subpoena, ever since used by the courts of equity. In the reign of Richard II. Waltham, Lord Keeper of the Great Seal, invented the writ of subpoena for bringing refractory trustees before the court of chancery. The writ was directed to the party (not as common law writs, to the sheriff or an officer of the court) and by acting on the conscience of the party, thus subjected to the court's jurisdiction, forced him to "do justice by compelling the affirmance of a right or enjoining the doing of a wrong."

The common law was utterly powerless to deal with breaches of trust, or direct the conduct of trustees, or others occupying fiduciary positions. Whatever the form of action at common law might be, the remedy offered by its judgment was either (1) a recovery of the possession of land; (2) recovery of the possession of chattels; or (3) the recovery of money damages or compensation. It is easily, therefore, to be seen how totally inadequate, particularly after the introduction of "uses," the law jurisdiction became and how necessary it was that there should be some tribunal that, by

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obtaining jurisdiction of the person, should have the power to compel the usee or trustee to perform his duties and restrain him in the violation thereof.

The learned author Wyngate finds the necessity for a jurisdiction that could act upon the conscience of the party, in the inability of the common law, in many cases, to enforce its maxims, "Jus et fraus nunquam cohabitant," and in his Maxims of Reason, (1558) page 618, he says: "When truth is mixed with covin (that wicked hearb) or covin with truth, that conjunction and mixture maketh all bitter and unsavory, and goodness is perverted into wickedness, for they cannot continue together, no more than fire and water." To disintegrate these and punish the result of the wicked union, or prevent an impending, threatened or continued evil, it was necessary for this court to reach and act upon the person, through his conscience, under this maxim of agere in personam, and this too "without direct interference with legal doc trines."

Among the early cases illustrating this maxim is the case of the Earl of Chesterfield vs. Janssen, 1 Atkyns, page 317, a bill for relief in a case of usury, where it is said: "Such relief never prayed in any bill before." The pioneer case, most frequently cited (see 1 Vernon, page 77) Archer v. Preston, is briefly referred to in 1 Equity Cases, 133, where, in regard to land lying in Ireland, the writ of ne exeat regno was granted upon the defendant's coming into England.

A very interesting case, probably the foundation of the equity jurisdiction which compels stockholders or members of a society to enforce the individual liability for debts, or obligations of the corporation or society, by means of an assessment upon members, is found in the case entitled, “Dr. Salmon v. Hamborough Company, by the name of Governor. Assistants and Fellowship of Merchants Adventurers of England, and Divers particular Members," etc. (1 Cases in Chancery, 204).

The defendant company was incorporated