stitution and from Acts of Congress. The judicial department of the national government, like the other departments, has no powers except those conferred by the fundamental law.

In the case of Noonan v. Lee,1 decided in 1862 by the U. S. Supreme Court, Justice Swayne said:

The equity jurisdiction of the courts of the United States is derived from the constitution and laws of the United States.

Equity Procedure in State Courts.

The States of the Union may be divided into three groups or classes: those in which distinct courts of equity exist; those in which equity powers are exercised by the ordinary law courts; and those in which the distinction between law and equity has been abolished by statute. In the States belonging to the first two groups, cases in equity are heard and determined by courts in which the judges decide all questions of fact without the aid of juries. In the third group, cases in equity are heard and decided in the same way as questions at law, that is, by judges and juries. By far the greater number of the States belong in the second and third groups, and the modern tendency seems to be toward abolishing the distinction between trials at law and in equity, but retaining the remedies given by equity.

Equity Procedure in the Federal Courts.

The courts of the United States, though exercising jurisdiction in cases which arise in the States, follow their own rules of practice without regard to the procedure in equity in the State courts.

12 Black (U. S.) Rep., 499, 509.

In the case of Boyle v. Zacharie,' decided in 1832 by the U. S. Supreme Court, Justice Story said:

The chancery jurisdiction given by the Constitution and laws of the United States is the same in all the States of the Union and the rule of decision is the same in all. In the exercise of that jurisdiction the courts of the United States are not governed by the State practice; but the Act of Congress of 1792 (Ch. 26) provided that the modes of proceeding in equity suits shall be according to the principles, rules and usages which belong to courts of equity as contradistinguished from courts of law. And the settled doctrine of this court is, that the remedies in equity are to be administered, not according to the State practice but according to the practice of courts of equity in the parent country, as contradistinguished from that of courts of law; subject, of course, to the provisions of the acts of Congress, and to such alterations and rules as in the exercise of the power delegated by those acts, the courts of the United States may, from time to time, prescribe.

CHAPTER XV

MAXIMS OF EQUITY

Principles of Equity.

The substance of equity jurisprudence is found in a number of maxims. "A great authority (Sir James Mackintosh) has described maxims as 'the condensed good sense of nations.' In the English law, these modes of expression were once more highly valued than now. It was declared that 'maxims are the foundation of the law, and the conclusions of reason' (Motto of Broom's Legal Maxims), and the earlier commentators and judges were especially fond of stating the law in the form of maxims. It is still recognized by good authority that legal maxims have not wholly lost their importance, and that, when used with proper discrimination, they form a not unimportant part of the literature of our jurisprudence. "The maxims of equity possess a peculiar value not attaching to those of law because the former are the fruitful germs from which these doctrines and rules [of equity] have grown by a process of natural evolution' (Pomeroy's Equitable Jurisprudence, sec. 360). Around these maxims, too, there have accumulated a vast number of decisions which construe them."

111 Am. & Eng. Ency. Law & Eq., 156.

The following maxims illustrate the scope and nature of equity jurisprudence.

Equity will not suffer a Wrong to be without a Remedy.

This maxim includes the fundamental theory of equity that it gives relief wherever a right exists and there is no adequate remedy at law.'

The case of Joy v. St. Louis, 2 decided in 1891 by the U. S. Supreme Court, grew out of a number of contracts entered into by certain railroads for the joint use of a right of way through Forest Park, St. Louis, under permits given by the park commissioners of the city. One of the questions was whether the court would enforce the specific performance of a contract which would involve its constant supervision of a business requiring skill, personal labor, cultivated judgment, and constant expenditure of money in seeing to it that the railroads. performed continuously and for all time any obligations which might accrue from time to time. Justice Blatchford, dealing with this point in the decision, said:

It is one of the most useful functions of a court of equity that its methods of procedure are capable of being made such as to accommodate themselves to the development of the interests of the public, in the progress of trade and traffic, by new methods of intercourse and transportation. The present case is a striking illustration. Here is a great public park, one of the lungs of an important city, which, in order to maintain its usefulness as a park, must be as free as possible from being serrated by railroads; and yet the interests of the public demand that it shall be crossed

See above p. 182.

2138 U. S. Rep., 1, 50.

by a railroad. But the evil consequences of such crossing are to be reduced to a minimum by having a single right of way, and a single set of tracks, to be used by all the railroads which desire to cross the park. These two antagonisms must be reconciled, and that can be done only by the interposition of a court of equity, which thus will be exercising one of its most beneficial functions.

He who seeks Equity, must do Equity.

In order to obtain relief in a court of equity, the petitioner must himself have acted honestly and in good faith. Equity will not help those who try to overreach others.

The case of Otis v. Gregory,' decided in 1887 by the Supreme Court of Indiana, was a proceeding in equity by which one Mrs. Mary E. Gregory asked for a judicial determination of her right of ownership to a tract of land in Indiana to which she said Amos Otis, the defendant, had set up a claim that prevented her from selling it. In 1873, Mrs. Gregory, then living in Michigan, had become indebted to Otis in the sum of $460.00, which was secured by a mortgage on land in Michigan made by her but not signed by her husband, because by the Michigan laws a married woman could make the same contracts concerning real estate as an unmarried woman. In 1874, she sold the Michigan land, and paid the mortgage held by Otis by giving him a mortgage on the Indiana land which was not signed by her husband, though by the Indiana law a husband had legal rights in his wife's real estate not subject to her control. Both parties seem to have acted in good faith, believing that the law was the same in Indiana as in Michigan. When this bill in equity came up in court, Mr. Otis contended

I III Indiana Rep., 504, 507, 512, 515.