The Maxims of Equity

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Where equity comes from

The common-law courts decided cases by fixed rules. Where a fixed rule gave an unjust result, people petitioned the King’s Chancellor, who decided by conscience. The rules the Court of Chancery built up over centuries are called equity, and the short sayings that sum them up are the maxims of equity.

Two early statements explain why equity is needed at all:

• Christopher St German, Doctor and Student (Latin 1528, English 1531), First Dialogue, ch. XVI, “What is equity”: “Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy … sith the deeds and acts of men, for which laws have been ordained, happen in divers manners infinitely, it is not possible to make any general rule of the law, but that it shall fail in some case.” (1874 edition, p. 44)
• The Earl of Oxford’s Case (1615) 1 Rep Ch 1, Lord Ellesmere LC: “The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances. The Office of the Chancellor is to correct Mens Consciences for Frauds, breach of Trusts, Wrongs and Oppressions of what Nature soever they be, and to soften and mollifie the Extremity of the Law.” (first printed 1716, p. 6)

The first book to gather the maxims was Richard Francis, Maxims of Equity (London, 1727; reissued 1728). It sets out fourteen maxims and proves each with cases from Chancery. Several of the maxims below were first put in words there.

The maxims

Each maxim gives the earliest statement found in a readable source, what it meant in that first case, and a link to the page. Reports are cited in the usual form; the old editions linked here sometimes number their pages differently, and where they do, both are given.

1. Equity follows the law

Aequitas sequitur legem.

First stated: Cowper v Cowper (1734) 2 P Wms 720, Sir Joseph Jekyll MR (p. 685 in the 1746 edition). Counsel had already argued “that Equity follows the Law” in a case of 1728 in the same volume (p. 466).

Meaning then: Chancery’s discretion is bound by the legal rules on who holds title, and it applies them to equitable estates too. Jekyll: “this Discretion, in some Cases, follows the Law implicitly, in others, assists it, and advances the Remedy; in others again, it relieves against the Abuse, or allays the Rigour of it; but in no Case does it contradict, or overturn the” law. Equity may soften the law but never overrule it.

2. He who seeks equity must do equity

First stated: Francis, Maxims of Equity (1728), Maxim I, p. 1: “He that will have Equity done to him, must do it to the same Person.” (page)

Meaning then: A borrower who came to Chancery to redeem a mortgage had to pay the lender not only the mortgage but also a later bond debt owed to the same lender. Anyone asking the court for fair treatment must give fair treatment to the other side of the same dispute.

3. He who comes into equity must come with clean hands

First stated: Francis (1728), Maxim II, p. 5: “He that hath committed Iniquity, shall not have Equity.” (page) The words “clean hands” come from Dering v Earl of Winchelsea (1787) 1 Cox Eq Cas 318, Eyre LCB (1816 edition; search the book for “clean hands”).

Meaning then: In Francis, a tenant whose lease was got by fraud could not ask equity to protect it, “for that were to relieve Fraud in Chancery”. Dering narrowed the rule: “a man must come into a Court of Equity with clean hands; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for.” A surety’s bad conduct in general did not stop him claiming a share of the loss from his co-sureties.

4. Delay defeats equity

Vigilantibus, non dormientibus, aequitas subvenit: equity helps the watchful, not those who sleep on their rights.

First stated: Francis (1728), Maxim X, p. 38: “Equity regards Length of Time.” (page) Then Smith v Clay (1767) Amb 645, Lord Camden LC: “Nothing can demand the assistance of the Court but conscience and reasonable diligence. Laches and neglect are discountenanced here.” (1828 edition, p. 647)

Meaning then: In Francis, long undisturbed enjoyment of land (25 or 40 years) cured defects in the title to it. In Smith v Clay, a party could not reopen a decree for an error on its face after twenty years, by analogy with the statute of limitations. Someone who waits too long loses the court’s help.

5. Equality is equity

First stated: Francis (1728), Maxim III, p. 9: “Equality is Equity.” (page)

Meaning then: “Where an Heir buys in an Incumbrance for less than is due upon it; he shall be allowed no more than what he really paid for it, as against other Incumbrancers.” No claimant may profit at the others’ expense; where claims share a fund, they share it fairly.

6. Equity looks to the intent rather than the form

First stated: Francis (1728), Maxim XIII, p. 53: “Equity regards not the Circumstance, but the Substance of the Act.” (page)

Meaning then: Equity enforced the real bargain, not its paperwork: “if the Substance of the Condition was performed, it should serve turn”, even where the exact form of the condition was not followed.

7. Equity regards as done that which ought to be done

First stated: In substance in Francis (1728), Maxim XIII: “Equity looks upon Articles for a Purchase of Lands, equal to a Conveyance.” (page) In these words in Banks v Sutton (1732) 2 P Wms 700, Sir Joseph Jekyll MR: “where an Act is to be done by a Trustee, that is to be looked upon as done which ought to be done” (p. 647 in the 1746 edition).

Meaning then: A signed agreement to buy land counted as if the land had been conveyed, so it passed under the buyer’s will. In Banks, trustees had been told to convey an estate to a husband and had not; his widow still got her dower from it, as if they had.

8. Equity imputes an intention to fulfil an obligation

First stated: Wilcocks v Wilcocks (1706) 2 Vern 558, the Lord Keeper (1828 edition).

Meaning then: A father had promised to buy land worth £200 a year and settle it. He bought such land but left it to pass to his son by descent instead. The court treated the purchase as keeping his promise: “The lands descended, being of 200l. per ann. and upwards, ought to be deemed a satisfaction of the covenant.” Francis put the idea as “a Man shall be intended to be just before he is kind” (Maxim XI, pp. 42–43).

9. Equity acts in personam

First stated: Earl of Derby v Duke of Atholl (1749) 1 Ves Sen 202, Lord Hardwicke LC: “a court of equity agit in personam” (1771 edition, p. 204). Then Penn v Lord Baltimore (1750) 1 Ves Sen 444 (p. 447).

Meaning then: Chancery’s orders bind the person, not the land. So it could decide a dispute over land outside England (the Isle of Man; the boundary of Maryland and Pennsylvania) as long as the party was within its reach. In Penn: “The conscience of the party was bound by this agreement; and being within the jurisdiction of this court, which acts in personam, the court may properly decree it.”

10. Equity will not suffer a wrong to be without a remedy

First stated: The Earl of Oxford’s Case (1615) 1 Rep Ch 1: “nullus recedat a Cancellaria sine remedio”, no one should leave Chancery without a remedy (1716 printing). Francis (1728), Maxim VI, p. 24: “Equity suffers not a Right to be without a Remedy.” (page)

Meaning then: Where the common law gave no way to enforce a right, Chancery would. Francis’s example: a lord of the manor who refused to admit a copyhold tenant could be compelled in Chancery, because “there is no Remedy for them but in Chancery.”

11. Where the equities are equal, the law prevails

First stated: Francis (1728), Maxim XIV, p. 61: “Where Equity is equal, the Law must prevail.” (page)

Meaning then: A buyer who paid value without notice of an earlier claim, and who held the legal title, kept the land against a creditor whose claim was only equitable. When neither side has the better conscience, the court leaves the legal title where it is.

The companion maxim, where the equities are equal, the first in time prevails (qui prior est tempore potior est jure), is older Latin. An early English use is in the printed papers of Powell alias Hinson v Warden of All Souls (1656), in the Oxford University Chancellor’s Court rather than the Court of Chancery: “Heron was first deceived, and it was good reason he should be first repaired; Qui prior est tempore potior est jure.” (scan)

12. Equity will not assist a volunteer

First stated: Francis (1728), Maxim XIV, p. 67, citing 1 Ch Cas 243: “the Court refused it, for the Brother is but a meer volunteer; and the Heir at Law has equal Equity with a Volunteer.” (page) The related rule, equity will not perfect an imperfect gift, is from Milroy v Lord (1862) 4 De GF & J 264, Turner LJ, at 274 (1873 reprint).

Meaning then: A “volunteer” is someone who gave nothing for what they were promised. A gift of land to a brother had failed for a defect in form, and Chancery would not mend it for him against the heir. In Milroy, a gift of shares was never properly transferred, and the court would not rescue it by calling it a trust: the giver “must have done every thing which, according to the nature of the property … was necessary to be done in order to transfer the property … for there is no equity in this Court to perfect an imperfect gift.”

13. Equity will not allow a statute to be used as an instrument of fraud

First stated: Lincoln v Wright (1859) 4 De G & J 16, Turner LJ, at 22: “The principle of the Court is, that the Statute of Frauds was not made to cover fraud.” (report) Restated in Rochefoucauld v Boustead [1897] 1 Ch 196, Court of Appeal, judgment given by Lindley LJ (as reported in the Solicitors’ Journal, 2 January 1897).

Meaning then: The Statute of Frauds required some dealings in land to be in writing. A person who took land on an oral understanding could not hide behind the missing writing to keep it. In Rochefoucauld: “it is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself.”

14. Equity abhors a forfeiture

First stated: Francis (1728), Maxim XII, p. 44, citing 1 Ch Cas 95: “Equity suffers not Advantage to be taken of a Penalty or Forfeiture, where Compensation can be made.” (page)

Meaning then: A copyhold tenant who had cut timber, which forfeited his land, was let off on offering to pay for the damage once it was found he had not meant to commit waste. Where money can make the other side whole, equity will not let them take the whole property as a penalty. It would not relieve a deliberate forfeiture.

Francis’s fourteen maxims (1728)

The first collection, in Francis’s own words (table of contents):

Sources

All are free scans on the Internet Archive.

• Christopher St German, The Doctor and Student (1528/1531; ed. W. Muchall, 1874).
• The Third Part of Reports of Cases … in Chancery (1716): The Earl of Oxford’s Case (1615), later 1 Rep Ch 1.
• William Powell alias Hinson v the Warden and Fellows of All Souls College (1656).
• Richard Francis, Maxims of Equity (1728).
• Thomas Vernon, Cases Argued and Adjudged in the High Court of Chancery, vol. 2 (ed. Raithby, 1828): Wilcocks v Wilcocks (1706).
• William Peere Williams, Reports of Cases Argued and Determined in the High Court of Chancery, vol. 2 (1746): Banks v Sutton (1732), Cowper v Cowper (1734).
• Francis Vesey senior, Cases Argued and Determined in the High Court of Chancery, vol. 1 (1771): Earl of Derby v Duke of Atholl (1749), Penn v Lord Baltimore (1750).
• Charles Ambler, Reports of Cases Argued and Determined in the High Court of Chancery, vol. 2 (ed. Blunt, 1828): Smith v Clay (1767).
• Samuel Compton Cox, Cases Determined in the Courts of Equity, vol. 1 (1816): Dering v Earl of Winchelsea (1787).
• De Gex and Jones, Reports of Cases Heard and Determined by the Lord Chancellor and the Court of Appeal in Chancery, vol. 4: Lincoln v Wright (1859).
• De Gex, Fisher and Jones, Reports of Cases Heard and Determined by the Lord Chancellor and the Court of Appeal in Chancery, vol. 4 (1873 reprint): Milroy v Lord (1862).
• The Solicitors’ Journal, vol. 41, 2 January 1897: Rochefoucauld v Boustead (1896), [1897] 1 Ch 196.

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