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The jurisdiction of courts of equity has, however, in all the States been materially reduced by the statutory creation of probate, orphan's or surrogate courts, to which are delegated jurisdiction in all matters of wills, settlement of estates and administration. To these courts, though without uniformity in all States, are often committed kindred subjects, as the appointment and supervision of guardians, conservators, trustees, and such other subjects as the statute may provide. The jurisdiction of courts of equity over these matters, originally subjects of equity jurisdiction, is in most States in all ordinary cases abolished. In a few States, as Massachusetts and Pennsylvania, equity jurisdiction is expressly abolished. In most States, however, though not expressly abolished, the jurisdiction of equity courts except as appellate courts is obsolete, as in Connecticut and New York. In a few States, as Mississippi and New Jersey, courts of equity still have concurrent jurisdiction with Probate Courts.

Reforms in

The effect upon the body of equity law of the Reformed Procedure is regarded with some apprehension and is not yet fully determined. While it is uniformly held pleading. that the new procedure looks only to the forms of action and defence, and the method of obtaining a remedy, yet the tendency has been to some extent to weaken the hold of purely equitable principles. Theoretically the body of rights and remedies, legal and equitable, is unchanged. But when legal and equitable rules conflict there is danger lest the equitable rule may bend to the legal. Under an amendment to the English Judicature Act and in the Practice Act of Connecticut it is provided that in case of conflict the equitable rule shall prevail. This is of course all the legislature can do. For the rest it depends upon the temper of the judiciary in the practical interpretation and application of code provisions.

Having devoted as much time to the adoption of equity in the United States and the several States as the limits of this

1 See Chapter XI.

chapter will permit, enough it is hoped to give a reasonably clear impression of the course and present extent of such adoption, we return now to a further notice of the modifications which have been worked out in this branch of law. In the earlier part of the chapter we ventured to quote from an old law book the maxims then regarded as expressing the fundamental principles from which Equity was developed. It is instructive to compare these maxims, collected by Francis, with those now usually set forth and explained in the textbooks upon Equity.

The number of approved maxims now usually given is twelve. Writers differ slightly in the form given to them, and in one or two cases as to the maxims them

Modern

selves. A leading modern text-book gives the maxims. following, viz.: "Equity regards that as done which ought to be done; equity looks to the intent rather than to the form; he who seeks equity must do equity; he who comes into equity must come with clean hands; equality is equity; where there are equal equities, the first in time shall prevail; where there is equal equity the law must prevail; equity aids the vigilant, not those who slumber on their rights; equity imputes an intention to fulfil an obligation; equity will not suffer a wrong without a remedy; and equity follows the law." 1

Some of these maxims are substantially in the language given by Francis, others have been changed, and still others are hardly to be suggested in those of Francis, as the maxim "Equity regards that as done which ought to be done," although regarded now as the source of a large part of equitable estates and interests. On the other hand, some of Francis' maxims have since been formulated into certain general doctrines of Equity. For instance, "Equity suffers not advantage to be taken of a penalty or forfeiture where compensation can be made" is now stated not as a maxim but a general principle or doctrine of Equity.

In addition to the maxims the modern books treat directly 1 Pomeroy on Equity Jurisprudence, sec. 362.

or by implication of certain doctrines peculiar to Equity which are regarded as the present sources or grounds of extensive relief. Some of these doctrines are the following: Equity will relieve in cases of penalties and forfeitures. This rule has for its leading authority the case of Peachy v. Duke of Somerset,1 decided by Lord Chancellor Macclesfield in 1721. Here is taken the distinction between penalties and liquidated damages. Election and satisfaction, notice, already referred to in connection with the case of Le Neve v. Le Neve, priorities, bona fide purchasers for value without notice, merger of estates and equitable estoppel, are all equitable doctrines uniformly recognized and applied as peculiar to Equity, and are the present formal statement of rules resulting from a long series of judicial decisions. Both the maxims and doctrines, as brief statements, are, in their application to concrete cases, subject to qualifications and restrictions developed in the two centuries during which Equity has reached its present position.

American judicial interpretation.

Upon looking over the course of Equity in this country since the Revolution, its general scope does not appear to have been materially extended by judicial interpretation. Care has been taken not to narrow by definition the recognized doctrines and principles lest its remedial efficiency should be narrowed. At the same time the apparent extensions are rather the unfolding of already well established principles, and, generally speaking, the result of freedom in applying these principles to new cases, however different in form, provided they are analogous in substance. The apparent extensions of Equity in quite recent times, as in case of injunction, corporations, and receiverships, and of which so much is said in the press and even in professional publications, when not due to statutes, are but the application to modern industrial conditions, enormous sometimes in their extent and importance, of principles of common application in chancery, and provoking no comment until applied in cases of such magnitude as to be of

1 2 White & Tudor, Leading Cases in Equity, 2014.

national importance. In an article in the Yale Law Journal for April, 1897,1 on Injunction, the present situation with respect to equity in the United States Courts is well stated in the following language, applicable generally, as well as to injunction.

"Within the classes of cases of which they may take cognizance those courts grant or refuse that kind of relief by the same rules and principles which from time immemorial have prevailed in the English Chancery and in the equity courts of those States of the Union which derived their jurisprudence from the mother country. Equity as a system, more perhaps than the Common Law, has been enlarged and modified to meet the changing conditions of business and civilization, and it is only natural that there should have been instances in which jurisdiction has been exercised in excess of rightful power, but when error of that kind has occurred it has been promptly corrected, either by direct appeal or by force of contemporary and more authoritative decision, and it is safe to say that no essential departure from recognized principles has become abiding or permanent. Steam power, electricity, railroads, telegraphs, corporate organizations, labor unions, trusts and other agencies, and schemes of modern enterprise have vastly extended the field and multiplied the occasions for the exercise of equity powers including the power to enjoin, but the character of the jurisdiction and the principles which govern its exercise have been changed or enlarged no more than the provisions and underlying principles of the National Constitution, and the powers of government thereby established have been modified or increased by the admission of new States into the Union. No decision of the Supreme Court, or of any United States Circuit Court of Appeals, touching the subject of injunction, can be said to be founded on or to involve any new doctrine, or any application of established principle which was new save in the circumstances and conditions brought under consideration."

The foregoing extract clearly implies what must always be understood, in order to avoid misconceptions as to the

1 By Hon. W. A. Woods.

growth of Equity for the last hundred years at least. In its origin, as stated at the outset, the question in each particular case was whether, assuming that the matter complained of was properly a subject of legal redress, the common law courts furnished a remedy, and if not, then the King “of his grace" through his Chancellor furnished the appropriate redress. But now the question is, does the matter complained of come within any recognized head of equitable jurisdiction, as such jurisdiction has heretofore been established.

Sir George Jessel, recognized as one of the greatest of modern equity judges, in a judgment delivered in 1879,1 in discussing the existence or non-existence of a rule of law, after an examination of the cases used this language:

"I think I am entitled to say that up to the year 1860 there was no law prohibiting effect being given to this will. I now come to a modern case decided in the year 1866, and it is the first time I find any Judge stating that there was any law to prohibit such a will being carried into effect. Having examined not only the authorities I have mentioned, but some others to which I have been referred, and have found myself, I may say, I cannot find a trace of it before the case I am about to mention, and therefore if there is such a law it must have been made in the year 1866. Now it could only have been made in the year 1866 by statute, because, in the year 1866, Equity Judges did not profess to make new law, and when they state what the law is, they do not mean, as might have been said two or three centuries before, that that was law which they thought ought to be law."

The learned Master of the Rolls then cites the case, admits that it states the rule claimed, and rejects it in these words:

"All I can say about it is, being clearly of opinion that the Vice-Chancellor did not arrogate to himself in 1866 legislative powers, and there being no statute, and there being no prior cases which say the law will not allow it, that it was simply

1 Johnson v. Cook, Law Reports, 12 Chancery Division, 649.

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