CHAPTER II. THE MAXIMS OF EQUITY. EQUITY is pre-eminently a science; and like geometry or any other science, it starts with and assumes certain maxims, which are supposed to embody and to express the fundamental notions of the science. A common element of equity pervades each of the maxims, which sometimes gives the maxims the appearance of running into each other; but with a little practice they are readily distinguishable; and it is highly necessary to keep these distinctions clear. Each maxim, therefore, both merits and requires a separate treatment, as well a separate exposition as also a separate illustration of it. The maxims peculiar to equity are the following:-- 1. Equity will not, by reason of a merely technical Maxims of defect, suffer a wrong to be without a remedy. equity. 2. Equity follows the law, Equitas sequitur legem. 3. Where there are equal equities, the first in time. shall prevail. 4. Where there is equal equity, the law must pre vail. 5. He who seeks equity must do equity. 6. He who comes into equity must come with clean hands. 7. Delay defeats equities,-Vigilantibus non dormientibus, æquitas subvenit. 8. Equality is equity. 9. Equity looks to the intent rather than to the form. B fect, suffer a 10. Equity looks on that as done which ought to have been done, or which has been agreed or directed to be done; and II. Equity imputes an intention to fulfil an obligation. 1. Equity will 1. Equity will not, by reason of a merely technical not, by reason of a merely defect, suffer a wrong to be without a remedy.—It will technical de- be evident that this maxim is at the foundation of a wrong without large proportion of equity jurisprudence, so far as that a remedy. jurisprudence aims at supplying the defects which at one time existed in the common law. For example, in the case of an outstanding dry legal term, prior in date to the plaintiff's title to an estate, and which term, although a merely technical objection, would at law have prevented the plaintiff from recovering in ejectment, the court of equity interposed to put the term out of the plaintiff's way, and even permitted him, by means of an "ejectment-bill," as it was called, to recover the very possession of the land itself without regard to the term. Similarly in the case of a mortgagor seeking to recover an estate or rent, the fact of the legal estate being in the mortgagee was no impediment in equity; and under the Judicature Act, 1873, sect. 25, sub-sect. 5, the rule in equity is made to prevail for the future at law also. The maxim must, however, be understood with the following limitations,—it must be understood as referring to rights which come within a class enforceable at law, or capable of being judicially enforced, and the enforcement of which would not occasion a greater detriment or inconvenience to the public than would result from leaving them to be disposed of in foro conscientiæ; and it must also be understood as referring to cases where there is no equal or superior adverse right or adverse equity in the private individual who is made defendant; and to cases where the plaintiff who is remediless at law has not lost his remedy there by his own. conduct or default (x). And it must also be remembered, that many real wrongs are not remediable at all, either at law or in equity; and that a still larger class of apparent wrongs are not wrongs at all, excepting in the imagination of the suitor; of course, the maxim does not apply to such. 2. Equity follows the law. This maxim has two 2. Equity folprincipal applications, viz. : (a.) In its concurrent jurisdiction, that is to say, as regards legal estates, rights, and interests, equity is strictly bound by the rules of law, and has no discretion to deviate from thein. (b.) In its exclusive jurisdiction (including for this purpose its auxiliary jurisdiction also), that is to say, as regards equitable estates, rights, and interests, equity, although not strictly speaking bound by the rules of law, yet acts in analogy to these rules, wherever an analogy exists. lows the law. But the maxim in both its applications must be Limitations of taken with this limitation-that equity will suffer the the rule. rules of law to govern, and the course of law to proceed, in the absence, and only in the absence, of any circumstances which render it incumbent on a court of equity to interpose in accordance with the maxim previously mentioned, that equity will not suffer a wrong to be without a remedy (y). tion: Primo (a.) As an illustration of the first application of this (a.) Concur maxim, it is well settled that equity follows the law rent jurisdicas to the rule of primogeniture, although that rule, in geniture, and any particular instance in which it is so followed, may generally. rules of descent (x) St. 684 a, 684 c. (y) Sm. Man. 14, 15. Following the law, equity may at the same time evade it in effect. be productive of the greatest hardship towards all, or some, or one, of the younger members of a family, by leaving them, for example, without any sort of provision, while the eldest son may be in affluence. These accidental circumstances create no equitable right, or equity, in favour of the youngest son against the eldest, and do not demand the interposition of a court of equity. The mere absence or want of provision, a circumstance arising perhaps from the culpable neglect of the parent, can create no equity against the eldest son, who has a right to the descended or entailed. estate, without any reference to the circumstances of the other members of the family. No relief could be given in such a case as that, without directly breaking through a rule of law, which a court of equity never does, and has no power to do. And where the circumstances are of a different kind, that is to say, are sufficient to create an equitable right, or equity, then even there a court of equity never does break through a rule of law, or refuse to recognise it, because it has no power and no discretion in the matter; but while recognising the rule of law, and even maintaining it, a court of equity will in a proper case get round about, evade, or obviate it. For example, if an eldest son should prevent his father from executing a proposed will devising one estate to a younger brother, by promising to convey such estate to such younger brother, and that estate should accordingly descend at law to the eldest son, a court of equity would interpose and say, "True it is, you (the eldest son) have the estate. at law, in other words, the legal estate; that we don't deny or interfere with; but precisely because you have it, you will make a convenient trustee of it for your younger brother, who (in our opinion) is equitably entitled to it" (2). (z) St. 64. -instance of the law. And again, in Loffus v. Maw (a), a testator in ad- Loffus v. Maw, vanced years and in ill health induced his niece to equity evading reside with him as his housekeeper, on the verbal representation that he would leave her certain property by his will, which he accordingly prepared and executed, but subsequently by a codicil revoked. The court directed that the trusts of the will in favour of the niece should be performed. It held, that in cases of this kind, a representation that property is to be given, even though by a revocable instrument, is binding, where the person to whom the representation is made has acted upon the faith of it to his or her detriment; and that it is the law of the court, grounded on such detriment, that makes it binding; and that it does not matter that the represented mode of gift is of an essentially revocable character. There is here no setting aside of law; but there is the like evasion as in the former case. tation in deeds trusts exe tory. (b.) As an illustration of the second application of the Exclusive jurisdiction: maxim now being explained, it may be mentioned (but Words of limionly briefly in this place, as the matter will be con- and wills, sidered at proper length in the following chapter, upon trite, and Trusts), that in construing the words of limitation of trusts executrust estates in deeds and wills, at least where the trust estate is executed, and in some cases even where it is executory only, a court of equity follows the rule of law familiarly identified as the rule in Shelley's case, and also observes all the other rules of law for the construction of the words of limitation of legal estates. But where the trust estate is executory only, and the court sees an intention to exclude the rules of law for the construction of the words of limitation, then, and in that case, the court carries out the intention in analogy to the rules of law, but not in servile obedience to them, where such obedience would defeat the execution of the intention. (a) 3 Giff. 592. And see Milton v. Melhuish, L. R. 3 Ch. Div. 27. |