The English Court of Chancery or Equity. The English King was in theory and fact the foundation of justice.

If the justice could not be procured in the commonlaw courts, the disappointed party might be able to get justice by appealing directly to the King, and The King usually was not skilled in law, and he would naturally turn to some one of his advisers who was. The advisor to whom were entrusted these appeals for justice outside the common-law courts was the Kings, Secretary or Chancellor. These early Chancellors were clergymen, not learned in the common-law, but in the Roman and CANON or church law. I was quite natural, therefore, that when the King through his Chancellor gave relief it would be done on ETHICAL GROUNDS. Gradually the business of relieving from the inadequacies of the common-law system became so great that chancellor came to have a separate court, which became known as the court of Chancery or Equity. The defects in the common law. As already stated, it was the formalism and conservatism of the common law which led to the establishment of the court of chancery. These defects may be more particularly classified as follows: 1. The rigidity of the common law. For example, the common law judges failed to give any remedy against a trustee except in certain simple cases, and trusts thus became an almost exclusively equity subject. Another example of rigidity was that the judgment of a common law court was absolute, either for the plaintiff or for the defendant; the decree of a court of equity on the other hand, may be conditional. 2. The negative nature of the law. The common law courts could not, or at least would not command the parties, except in the extraordinary remedy of mandamus. The only command given was that to the sheriff, either to turn over to the plaintiff some specific property hitherto in the possession of the defendant, or to take and sell enough of the property of either party to satisfy the money judgment of the court. The power to command the defendant is one of the distinguishing features of a court of equity. 3. The common law can deal only with a two- sided case; equity can deal with any number of sides, settling the rights of all the parties against each other. A good illustration is- the power of a court' of equity in winding up a partnership determining in one suit the rights of the individual creditors and the partnership creditors against the firm and the rights of the members of the firm against each other. It is one of the aims of equity to prevent, where feasible, a multiplicity of suits. 4. The exclusively contentions nature of the law. A law court will only deal with the case of an infringed right ; it waits till the harm is done and then redresses the wrong. A court of equity exercises a preventive jurisdiction and will enjoin the threatened injury. A good illustration of this is an injunction given to a landlord against a tenant 's cutting down valuable trees ; the common law court would be compelled to wait till they were cut down and give merely a money judgment by way of redress.

Administration of equity. In England the court of Chancery existed as a separate court down to the Judicature Act of 1873, when all the courts of England were consolidated into one court and each division of it was clothed with both law and equity powers.^ In this country there are now, roughly speaking, three ways of administering equity.^ The first method is by having a separate court of equity; this is, of course, similar to the English method before 1873. This method exists in Alabama, Delaware, Mississippi, New Jersey, Tennessee, and Vermont. By the second method of administration equity and law are administered by the same courts, but the procedure is kept distinct. This method is followed in Florida, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, Pennsylvania, Rhode Island, Texas, Virginia, West Virginia, and in the Federal courts. In all other jurisdictions, following the lead of New York, codes of procedure have been adopted, which purport to abolish the distinction between law and equity .procedure; under these codes, however, it has been generally held that essential distinctions between legal and equitable rights and remedies still exist. In Personam adj. (in purr-soh-nam) from Latin for "directed toward a particular person." In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called an "in personam judgment." In personam is distinguished from in rem, which applies to property or "all the world" instead of a specific person. This technical distinction is important to determine where to file a lawsuit and how to serve a defendant. In personam means that a judgment can be enforceable against the person wherever he/she is. On the other hand, if the lawsuit is to determine title to property (in rem) then the action must be filed where the property exists and is only enforceable there.

Equity acts in personam, not in rem. The jurisdiction of a common law court may be based either upon its control over property or upon the fact that the defendant has been served with process or has voluntarily submitted himself to the court's jurisdiction.^ The jurisdiction of an equity court is based, in the absence of a statute, upon the second ground alone, viz., getting control of the person. Procedure in a common law court may be either in personam, ending in a personal judgment for damages, or it may be in rem; proceedings in rem are brought to recover the possession of property or to have a judicial declaration of a property right. Proceedings in rem are usually brought against a specific person or persons ; in such a case the judgment is decisive only as to such person or persons. For example, if A sues B in replevin for a horse and gets judgment against B, this binds B but it does not prevent a stranger, X, from suing A in replevin for the horse and getting a judgment against A. But proceedings in rem may be brought against all the world; outside of admiralty* these are modern and statutory and are practically limited to the settling of title to land. In such a proceeding any one who has a claim may come in and assert it and hence every one is bound by the judgment. Proceedings and judgments may thus be said to be either (1) in personam, (2) in rem, binding only

Executions in a common law court, except in mandamus are in rem and not in personam. If the judgment is that the plaintiff do recover a specific piece of property, the sheriff places the plaintiff in possession of that property. It the judgment is that the plaintiff recover a certain sum of money as damages and the defendant fails to pay, the judgment plaintiff -may then have a writ of execution issued to the sheriff authorizing and commanding the sheriff to levy upon the defendant's property, to sell it at public sale and with the proceeds to satisfy the plaintiff's judgment. In the extraordinary common law action of mandamus, and in equity, however, the decree merely orders the defendant to do or to refrain from doing some act ; if he refuses in spite of being imprisoned and having his property sequestered, the court is unable to bring about a performance of the decree, apart from statute. Decree of equity court does not affect the legal right. Another way of saying that equity acts only in personam is to say that the decree of an equity court does not affect the legal right; the legal right is affected only by that which is done in obedience to the decree. This was the natural result of equity being administered by a separate court. If a common law court had said that the legal right was in A and an equity court had said that it was not in A but in B, chaos and confusion as well as conflict would have resulted. Thus, a decree that an obligation be delivered up and cancelled does not of itself avoid the obligation; as it has been expressed: "But to execute this [decree], the chancery can do nothing but order him to prison, there to remain until he will obey. And this is all that the court can do. And if the party will lie in prison rather than give up the obligation the other is without remedy, and so the Chancellor has no power to nullify the obligation." So, an injunction against negotiating a negotiable note does not destroy the negotiability of the note. An injunction against the enforcement of a common law judgment for example, on the ground of its having been fraudulently obtained does not affect the validity of the judgment; if the defendant is willing to remain in prison for contempt, he may have execution on the judgment. And a decree that the defendant convey land to the plaintiff does not affect the legal title to the land. Hence, if the defendant is insane or 'paralytic and therefore unable to execute a conveyance, all that the equity court can do is to decree that the defendant convey when he shall have recovered from his insanity* or paralysis." Legislation is especially necessary here in order to avoid in justice, and statutes usually give power in such cases courts of equity to take the legal title and pass it either by their decree or by conveyance executed by some officer of the court such as a master in chancery.

Commanding an act within the jurisdiction which affects property outside. If the defendant has been properly served with process or has submitted to the jurisdiction of the equity court, it is not necessarily an objection to giving a decree that the act commanded to be performed would affect property outside the jurisdiction. In Gardner v. Ogden^ suit was brought in New York to avoid as fraudulent a deed to land in Illinois, and to compel the defendant to reconvey the land to the plaintiff. The court gave the decree asked for. It is to be noted that the act of conveyance could take place in New York; it was not necessary for the defendant to go to Illinois to do it. If the conveyance is executed in New York according to the formalities prescribed by Illinois law as to deeds of conveyance of land, it will be recognized and given effect to in Illinois; it will be no more an objection that the defendant acted under the compulsion of a New York court than if he had acted under the compulsion of an Illinois court. This is so because of the provision in the United States Constitution requiring that full faith and credit be given to the judgments and decrees of sister states. There seems to be no insuperable objection to an equity court of one of our states decreeing the conveyance of land in Canada or England, both of which countries, have the same legal system as our own, but it is believed that no case of that sort has arisen; it is not likely to arise in the future because of the large number of statutes giving equity courts jurisdiction in rem and giving their decrees operation in rem.

Maxims of Equity
Nature and value of maxims. In addition to the jurisdiction rule already discussed that equity acts in personam, there are rules or' principles rather, because they are not exact enough to be properly called rules which have been expressed in the form of maxims, or short, pithy statements. There is no general agreement as to the number or identity of these maxims and the fact that a principle is or is not stated in the form of a maxim is no certain clue to its importance. Some equitable principles which have never been expressed in that form are of much greater scope and value than some of those that are. But since it is so common to cite the maxims, it has been thought desirable to discuss them briefly.

Maxims are of little or no value^ to the student in fact, they may be worse than useless unless he gets a fairly clear idea as to their meaning and applicability. The following sections will, therefore, be devoted to showing what idea the maxim is meant to express and the field of equity in which it is fairly safe to apply it

Where there is a right there is a remedy. If right be taken in the narrow sense of legal or juridical right, as opposed to a mere moral right or interest, this maxim expresses only a truism. While it is true that we do have some legal rights without remedies to enforce them such instances are exceptional. The most common illustration is that of a right still existing after the remedy has been taken away by a statute such as the usual Statute of Frauds or Statute of Limitations; even here, however, it is only the direct remedy by action that is taken away ; the indirect, defensive remedy still exists.

If right be taken in the broader sense of moral right or interest, the maxim represents the goal of every system of civilized law toward which it is constantly working but which, in the nature of things, is unattainable. It is thus a maxim of the Roman Law and also of the common law as well as of equity; but equity put new life into it and made it the basis of its growth. The equitable rights of the cestui que trust and of the mortgagor are among the most striking effects of equity's expansion under the influence of this principle. With the gradual crystallization of equity, already spoken of, the vitality of this maxim has become lower and lower, but has never been entirely extinguished. While it seems impossible for equity now to add large fields to its jurisdiction, it seems still to be true that if a statute creates a new right which cannot adequately be enforced at law, equity will contrive in some way to enforce it. Equity regards substance rather than form. The meaning of this maxim is obvious and it is such a salutary principle that it deserves to be applied throughout the whole field of equity. The over crystallization of equity during the past century to which allusion has already been made has considerably lowered the present day vitality of the maxim and we are compelled to fall back upon the past achievement of equity for illustrations of the influence of this principle. Perhaps the most striking example is the relief given to a mortgagor who has failed to pay his debt on the day. By the terms of the old common law mortgage' such a default forfeited the entire interest in the property to the mortgagee; equity, however, insisted that the substance of the transaction was that the mortgagee should be paid his debt with interest, and hence he could not properly complain if the payment were not made exactly on the day set for payment. Equity dealt in a similar way with all forfeitures* and penalties. 'The whole jurisdiction of equity over trusts is frequently considered as in some degree a product of this principle of regarding the interest of the cestui que trust as the real substantial ownership, the corresponding legal estate of the trustee being treated as a mere form and shadow." A more specific application in the subject of trusts is the equitable doctrine that equity will not allow a trust to fail for want of a trustee. The doctrine of equity that a defectively executed mortgage or contract to give a mortgage will be treated as a mortgage'' in equity is properly referred to this and the following maxim that equity regards that has done which ought to be done.

Equity imputes intent to fulfill an obligation. This maxim seems to be a specialization of the one just discussed. It is rarely quoted and its scope and application are quite limited. Perhaps the most important field in which the principle can be said to have had much influence is in that of constructive trusts. Through these equitable obligations to restore specific property which the defendant unjustly detains from the plaintiff are now recognized to exist independently of the intentions of the parties, and are therefore not really trusts at all, yet they were at first imposed under a fiction of an implied intent. Thus if the express trustee should convey the trust property to X who had notice of the trust, equity held that X was bound by the trust on the ground that the court would presume that X meant to carry out the trust; likewise, if a trustee invested trust money in property, it was presumed that he intended to carry out his obligation as trustee and not to commit a fraud. Still a third illustration is the rule of equity that if a trustee mingles trust money with his own private bank account, and later checks out sums for his private use, he is presumed to have intended to draw upon his own money and not upon the trust money. Though these rules came about by the use of the fiction of intendments or presumptions, they are now treated as well settled rules of substantive equity.