who seek an accurate knowledge of the actual or supposed boundaries of Equity Jurisdiction. Thus, for example, although fraud, accident, and trust are proper objects of Courts of Equity, it is by no means true that they are exclusively cognizable therein. On the contrary, fraud is in many cases cognizable in a Court of Law. Thus, for example, reading a deed falsely to an illiterate person, whether it be so read by the grantee or by a stranger, avoids it as to the other party at law. And sometimes fraud, such as fraud in obtaining a will, or devise of lands, is exclusively cognizable there. Many cases of accident are remediable at law, such as losses of deeds, mistakes in accounts and receipts, impossibilities in the strict performance of conditions, and other like cases. And even trusts, though in general

of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law; as, for instance, cases of bailments, and that larger class of cases where the action for money had and received for another's use is maintained ex æquo et bono.3

61. On the other hand there are cases of fraud, of accident, and of trust, which neither Courts of Law nor of Equity presume to relieve or mitigate. Thus a man may most unconscientiously wage his law in an action of debt; and yet the aggrieved party will not be relieved in any Court of Law or Equity. And where the law has determined a matter, with all its circumstances, equity cannot (as we have seen) intermeddle against the positive rules of law. And therefore equity will not interfere in such cases, notwithstanding accident or unavoidable necessity. This was long ago remarked by Lord Talbot, who, after saying, 'There are instances indeed in which a Court of Equity gives remedy where the law gives none,' added: But where a particular remedy is given by law, and that remedy is bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the

1 Thoroughgood's case, 2 Co. 9 a.; Hobart, R. 296; Id. 126, 330, 426; Shutter's case, 12 Co. R. 90; Jenkins' Cent. 166.

2 1 Hovenden on Frauds, Introd. p. 16; Id. ch. 10, p. 252; 1 Dane, Abridg. ch. 9, art. 1, § 3; 3 Wooddes. Lect. lvi. p. 477.

83 Black. Comm. 431, 432; 1 Wooddes. Lect. vii. pp. 208, 209.

4 1 Fonbl. Eq. B. 1, ch. 1, § 3, p. 16.

5 Francis, Max. Introd. 6, 7.

61 Fonbl. Eq. B. 1, ch. 1, § 3; 1 Hovend. on Frauds, Introd. pp. 12, 13.

7 Ibid.; 1 Dane's Abridg. ch. 9, art. 1, § 2.

law leaves it, and extend it further than the law allows.'1 (a) And upon this ground relief was refused to a creditor of the wife against her husband after her death, though he had received a large fortune with her on his marriage. So a man may by accident omit to make a will, appointment, or gift, in favor of some friend or relative, or he may leave his will unfinished; and yet there can be no relief. And many cases of the non-performance of conditions precedent are equally without redress. So cases of trust may exist, in which the parties must abide by their own false confidence in others, without any aid from courts of justice. Thus in cases of illegal contracts, or those in which one party has placed property in the hands of another for illegal purposes, as for smuggling, if the latter refuses to account for the proceeds and fraudulently or unjustly withholds them, the former must abide by his loss; for, In pari delicto melior est conditio possidentis et defendentis,' is a maxim of public policy equally respected in Courts of Law and Courts of Equity.5 And on the other hand where the fraud is perpetrated by one party only, still, if it involves a public crime, and redress cannot be obtained except by a discovery of the facts from him personally, the law will not compel him to accuse himself of a crime; and therefore the case is one of irremediable injury.o (b)

6

62. These are but a few among many instances which might be selected to establish the justice of the remark that even in

1 Heard v. Stanford, Cas. Temp. Talb. 174.

2 Ibid.

* See Whitten v. Russell, 1 Atk. 448, 449; 1 Madd. Ch. Pr. 39; Id. 45, 46; 1 Wooddes. Lect. vii. p. 214; Com. Dig. Chancery, 3 F. 8; 1 Fonbl. B. 1, ch. 3, § 7, and note (x); Francis, Max. M. 9, § 4.

1 Madd. Ch. Pr. 35; Popham v. Bamfield, 1 Vern. R. 83; Lord Falkland v. Bertie, 2 Vern. 333; 7 Dane's Abridg. ch. 225, art. 4, § 6.

5 Holman v. Johnson, Cowper, R. 341; Armstrong v. Toler, 11 Wheaton, R. 258; Hannay v. Eve, 3 Cranch, R. 242; Grounds and Rudim. of the Law, M. 347, p. 260, edit. 1751; 7 Dane's Abridg. ch. 226, art. 18; Smith v. Bromley, Doug. R. 696, note. The civil law has a like maxim: Paria delicta mutua compensatione tolluntur.' Breviar. Advocat. title, Delictum. 'Paria sunt non esse aliquid, vel non esse legitime.' Id. Paria; Batty v. Chester, 5 Beavan, R. 103.

6 Grounds and Rudim. of the Law, Introd. 6, 7; Id. M. 306, p. 225, edit. 1751; 2 Fonbl. Eq. B. 6, ch. 3, § 5.

411.

(a) Janney v. Buell, 55 Ala. 408,

(b) Equity has no criminal juris

diction. Supra, note to § 25; Cope v. District Fair, 99 Ill. 489.

cases professedly within the scope of Equity Jurisdiction, such as fraud, accident, and trust, there are many exceptions; and that all that can be ascribed to such general allegations is general truth. The true nature and extent of Equity Jurisdiction as at present administered must be ascertained by a specific enumeration of its actual limits in each particular class of cases falling within its remedial justice.2 This will accordingly be done in the subsequent pages.

63. Before proceeding however to this distribution of the subject, it may be well to take notice of some few maxims and rules of a general nature which are of constant and tacit and sometimes of express reference in most of the discussions arising in equity, in order that we may understand the true nature and extent of the meaning attached to them.

64. In the first place it is a common maxim that equity follows the law, Equitas sequitur legem.' This maxim is susceptible of various interpretations. It may mean that equity adopts and follows the rules of law in all cases to which those rules may in terms be applicable; or it may mean that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law. Now the maxim is true in both of these senses, as applied to different cases and different circumstances. It is universally true in neither sense; or rather it is not of universal application.5 Where a rule either of the common or the statute law is direct, and governs the case with all its circumstances or the particular point, a Court of Equity is as much bound by it as a Court of Law, and can as little

1 See Com. Dig. Chancery, 3 F. 1 to 9; 7 Dane's Abridg. ch. 225, § 6; 1 Wooddes. Lect. vii. pp. 200 to 215.

2 Dr. Dane, in his Abridgment and Digest, has devoted two large chapters to the consideration of the System and Practice of Equity, especially in the Courts of the United States. The diligent student will not fail to avail himself of this ample source of information. 7 Dane's Abridg. ch. 225, 226, from pp. 516 to 639.

8 1 Dane's Abridg. ch. 9, art. 1, § 2; Grounds and Rudim. of the Law, M. 9 (edit. 1751). See Earl of Bath v. Sherwin, 10 Mod. R. 1, 3; Cowper v. Cowper, 2 P. Will. 753.

4 3 Wooddes. Lect. lvi. pp. 479 to 482.

5 Sir Thomas Clarke (Master of the Rolls), in one of his elaborate opinions, has remarked, in regard to uses and trusts, that at law the legal operation controls the intent; but in equity the intent controls the legal operation of the deed. Burgess v. Wheate, 1 W. Black. R. 137.

justify a departure from it. If the law commands or prohibits a thing to be done, equity cannot enjoin the contrary or dispense with the obligation. Thus since the law has declared in England that the eldest son shall take by descent the whole undevised estate of his parent, a Court of Equity cannot disregard this canon of descent, but must give full effect and vigor to it in all controversies in which the title is asserted. And yet there are cases in which equity will control the legal title of an heir, general or special, when it would be deemed absolute at law; and in which therefore, so far from following the law, it openly abandons it. Thus if a tenant in tail, not knowing the fact, should upon his marriage make a settlement on his wife, and the heir in tail should engross the settlement and conceal the fact, although at law his title would be absolute, a Court of Equity would award a perpetual injunction against asserting it to the prejudice of the settlement. So if an heir-at-law should by parol promise his father to pay his sisters' portions if he would not direct timber to be felled to raise them; although discharged at law, he would in equity be deemed liable to pay them in the same way as if they had been charged on the land.1 And many cases of a like nature may be put.5

64 a. So in many cases equity acts by analogy to the rules of law in relation to equitable titles and estates. Thus although the Statutes of Limitations are in their terms applicable to Courts of Law only, yet equity by analogy acts upon them, and refuses relief under like circumstances. Equity always discountenances laches, and holds that laches is presumable in cases where it is positively declared at law. Thus in cases of equitable titles in land, equity requires relief to be sought within the same period

1 Kemp v. Pryor, 7 Ves. 249 to 251; 2 Bac. Abridg. Court of Chancery, C. 2 Grounds and Rudim. of the Law, M. 9, p. 16 (edit. 1751); Doct. and Stud. Dial. 1, ch. 20.

Raw v. Potts, Prec. Ch. 35; s. c. 2 Vern. R. 239.

4 Dalton v. Poole, 1 Vent. R. 318.

5 1 Fonbl. Eq. B. 1, ch. 3, § 4; Hobbs v. Norton, 1 Vern. R. 135; Neville v. Robinson, 1 Bro. Ch. C. 543; Devenish v. Baines, Pre. Ch. 3; Oldham v. Litchfield, 2 Freem. R. 284; Thynn v. Thynn, 1 Vern. R. 296; 11 Ves. 638, 639; Gilb. Lex Prætor. 336; Sugden, Vendors (7th edit.), pp. 717, 718; 3 Wooddes. Lect. lix. pp. 479 to 482; Id. 486, 490, 491.

• This section and the succeeding sections to § 65 were in the former editions misnumbered and repeated; and they are therefore now marked § 64 a, § 61 b, &c. to § 64 k, after which the numbers regularly proceed, as before.

in which an ejectment would lie at law; and in cases of personal claims it also requires relief to be sought within the period prescribed for personal suits of a like nature. And yet there are cases in which the statutes would be a bar at law, but in which equity would, notwithstanding, grant relief; and on the other hand there are cases where the statutes would not be a bar at law, but where equity, notwithstanding, would refuse relief." But all these cases stand on special circumstances which Courts of Equity can take notice of when Courts of Law may be bound by the positive bar of the statutes. And there are many other cases where the rules of law and equity on similar subjects are not exactly co-extensive as to the recognition of rights or the maintenance of remedy. Thus a person may be tenant by the curtesy of his wife's trust estate, but she is not entitled to dower in his trust estate. (a) So where a power is defectively executed, equity will often aid it; whereas at law the act is wholly nugatory.5

64 6. Other illustrations of the same maxim may be drawn from the known analogies of legal and trust estates. In general, in Courts of Equity the same construction and effect are given to perfect or executed trust estates as are given by Courts of Law to legal estates. The incidents, properties, and consequences of the estates are the same. The same restrictions are applied as to creating estates and bounding perpetuities and giving absolute dominion over property. The same modes of construing the

1 Blanshard on Limit. ch. 4, p. 61; Edsell v. Buchanan, 1 Ves. R. 83; Com. Dig. Chanc. 1; Mitford, Pl. Eq. 269 to 274; 1 Madd. Ch. Pr. 79, 80; 2 Madd. Ch. Pr. 244; Smith v. Clay, 3 Bro. Ch. R. 640, note; Cholmondeley v. Clinton, 2 Jack. & Walk. 156; post, § 529.

2 See Pickering v. Lord Stamford, 2 Ves. jr. 289; Id. 582; 2 Madd. Ch. Pr. 244 to 247; Mitford, Pl. Eq. 269 to 274; Blanshard on Limit. ch. 4, pp. 61, 81, 82, 83; 1 Fonbl. Eq. B. 1, ch. 4, § 27, note (9); Stackhouse v. Barnstown, 10 Ves. 466; Bond v. Hopkins, 1 Sch. & Lef. 413; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (g); Cowper v. Cowper, 2 P. Will. 753.

See Earl of Bath v. Sherwin, 10 Mod. R. 1, 3; s. c. 1 Bro. Parl. C. 270; Doct. and Stud. Dial. 1, ch. 20.

Cruise, Dig. tit. 12, ch. 2, § 15; 1 Fonbl. Eq. B. 1, ch. 6, § 9, note (t).

51 Fonbl. Eq. B. 1, ch. 1, § 7, and note ibid.; Id. B. 1, ch. 4, § 25, note (h).

(a) This subject has been much affected by legislation since the author wrote.