OUTLINE OF EQUITY JURISPRUDENCE.

Equity jurisprudence may properly be said to be that portion of remedial justice which is exclusively administered by a court of equity. Courts of equity afford relief in regard to those rights where the remedy at law is doubtful, inadequate or incomplete, but cannot relieve against any defect, imperfection or abuse of the law itself. Courts of equity are equally bound by precedents with courts of law, and can give no different construction to the law from that which governs courts of law.

These

Courts of equity act on established maxims. maxims are: 1. Equity will not suffer a right to be without a remedy. 2. Equity will interfere where a due remedy cannot be had at law. 3. Equity will in general follow the law. 4. Equity discountenances delay. 5. Where there is equal equity, the law must prevail. 6. Equality is equity. 7. Whoever comes into equity must come with clean hands. 8. Whoever seeks equity must do equity. 9. Equity regards that as done which ought to be done. 10. Priority of time gives the better equity. 11. Equity imputes an intention to fulfil an agreement.

Of the Division of Equity.

Equity jurisprudence comprises Remedial, Executive, Adjustive, Protective, and Auxiliary Equity.

Remedial Equity.

Remedial equity comprises cases of Accident, Mistake, Actual Fraud, and Constructive Fraud.

An accident is any unforeseen event, misfortune, loss, act or omission, as is not the result of any negligence or misconduct in the party. Accidents are remediable in equity; if not (1) Accidents remediable at law; or not (2) Accidents neither remediable at law or in equity.

A mistake is any unintentional act, omission or error arising from ignorance, surprise, imposition or misplaced confidence. Mistakes are remediable in equity if made by the sufferer alone under circumstances which give rise to a presumption that there has been some undue influence, misrepresentation, imposition, mental imbecility, surprise or confidence abused. A mistake in matters of law is not remediable; but where the mistake is one of title of such constant occurrence as to be understood by the community at large, it will be remedied. Ignorance of foreign law is always remediable, being regarded as a mistake of fact. Mutual mistakes are not remediable, except in cases of mutual surprise, or where the parties supposed that the subject-matter of the contract existed, when in reality it was not in existence; or where the parties supposed that they had purchased something which the others did not intend to sell, or where the mistake is the result of a miscalculation by the defendant's agent in favour of the defendant.

On the subject of fraud, Courts of Equity have wisely never laid down as a general proposition, what shall constitute fraud, or the extent of remedial equity on the ground of fraud.

Fraud is divided into actual and constructive fraud. An actual fraud is something done, said, or omitted, with the design of perpetrating what the party must have known to be a positive fraud.

Actual frauds comprise, 1. Misrepresentation; 2. Concealment; 3. Gross inadequacy of price accompanied with other circumstances; 4. Unjustifiable refusal of consent to a marriage; 5. Unfairness in contracts with infants, or deranged, intoxicated, or distressed persons.

Constructive frauds are acts, statements, or omissions

which operate as virtual frauds on individuals, or, if generally permitted, would be prejudicial to the public welfare, and are not clearly resolvable into mere accident or mistake, and yet may have been unconnected with any selfish or evil design, or may amount, in the opinion of the party chargeable therewith, to nothing more than what is justifiable or allowable. Constructive frauds comprise, 1. Frauds on public policy; 2. Frauds of persons in confidential relations; 3. Frauds on persons peculiarly liable to be imposed on; 4. Virtual frauds on individuals irrespective of any confidential relation or any peculiar liability to be imposed on.

Of Executive Equity.

One branch of this department of equity comprises legacies, portions donationes causâ mortis.

Another, and perhaps the most extensive branch of equity jurisprudence, is that of trusts.

A trust is a beneficial interest in, or a beneficial ownership of, real or personal property, unattended with the possessory and legal ownership thereof. Trusts are either express, implied, or constructive.

Express trusts are those which are evidenced by a written document. Trusts are either executed or executory. A trust executed is a trust which appears to be finally declared by the instrument creating it. A trust executory or directory is a trust raised either by a stipulation or by a direction, in express terms or by necessary implication, to make a settlement or assurance to uses or upon trusts which are indicated in, but do not appear to be finally declared by the instrument containing such stipulation or direction. Express charitable trusts receive a more liberal construction than gifts to individuals.

An implied trust is one which arises from presumption, as where a conveyance is made without a consideration, and without a use or trust, and in other

cases.

Constructive trusts arise not from presumption but from the construction of equity, as where repairs or improvements are made by a joint owner, or a person with a defective title, and in other cases.

The specific performance of agreements is another branch of executive equity. By the Common Law, if a person, who ought to perform a contract or covenant, failed to do so, no redress could formerly be had, except in damages. On this ground a specific performance will be decreed in equity where damages would not afford an adequate compensation. But equity will not interfere where damages at law would amount to a complete compensation.

Adjustive Equity.

One of the principal subjects of adjustive equity is that of account. Courts of Equity, however, will only take jurisdiction of accounts, where they consist of equitable claims, or the accounts (although cognizable at law) are complicated, or where a remedy which is or was peculiar to a Court of Equity is required. Accounts are divided into open, stated and settled accounts.

The administration of assets is another principal subject of adjustive equity. The application for assistance is sometimes made by the executor or administrator. Assets, that is, property available for the payment of debts of a deceased person are divided into legal and equitable. Assets are legal or equitable according as the remedy of the creditor to make them available for the payment of debts, is at law or in equity. Equitable assets include real property which the deceased had by will charged with or devised for payment of his debts, although liable for payment of them by act of parliament. There are many cases in which parties, whose right at law is confined to one fund, would fail to obtain the satisfaction of their just claims, if left to the course of law, but are enabled to obtain full satisfaction thereof by means of a particular

adjustment effected by Courts of Equity, termed the marshalling of assets. This may be defined to be such an arrangement of the different funds of the common debtor of two or more creditors as may satisfy every claim, so far as, without injustice, such assets can be applied in satisfaction thereof, notwithstanding the claims of particular individuals to prior satisfaction out of some one or more of those funds.

Mortgages, pledges, and liens also form an important department of adjustive equity. It may be considered as an almost universal rule, that wherever a conveyance or an assignment of an estate is originally intended as a security for money, whether this intention appears on the deed itself or by any other instrument, or even by parol evidence, and whether directly or indirectly, it will ever after be considered in equity as a mortgage, and therefore redeemable on the usual terms; though, at the time of the loan, or as part of the same transaction, there may be an express agreement between the parties that it shall not be redeemable, or that the right of redemption shall be confined to a particular time, or to a particular person, or description of persons; for such an agreement will be void. There may, however, be an absolute purchase with a right of repurchase, and either introduced into the agreement for sale at the time or made at a subsequent period.

The doctrine of tacking occurs where a third incumbrancer by mortgage, without notice of a second incumbrance at the time of lending his money, purchases the first legal mortgage, judgment, statute, or recognizance, even after notice of the second mortgage, so as to acquire the legal title, and holds both securities in his own right, equity will tack both incumbrances together in his favour; so that the second mortgagee will not be permitted to redeem the first without redeeming the third also, on the principle that where the equities are equal the law shall prevail. This doctrine does not apply where the incumbrancer did not originally advance his money on the immediate credit