Preliminary Synopsis ‘+ Meaning and Definitions of Equity A short history of Equity Jurisdiction + Nature and Scope of Equity + Basis of the Authority of Equity 1. Equity was a matterof grace 2. Equity was a matter of Conscience 3. Equity was enforceable by process of contempt Procedure in Equity Courts Process of Equity Court ‘Enforcement of judgment by process of contempt * Meaning and Definitions of Equity: ‘The tem ‘equity’ is derived from the Latin expression ‘Aequitas Aequuas’, connoting the sense of levelling or equalisation. Therefore, etymologically, equity is that which levels down any arbitrary preferences or denial of justice. The term ‘equity’ is used in diverse ways and connotes a variety of senses. In its popular parlance, it signifies natural justice, equality and faimess and implies that a man shall do unto others as he would be done by. In this sense, however, it has no juridical significance for unkindness and ingratitude or other moral wrongs clearly fall outside, the scope of equity.! In the legal sense, equity does not cover so wide a jurisdiction as that which would follow from enforcing strictly the principles of natural justice. The law does not provide relief for all inconveniences. There are many matters of natural justice for which no provisions have been made because of the difficulty of framing a comprehensive general enactment that could embrace all of them.? ee ' Tandon, M. P. Principles of Equity with Trusts Specific Relief, 14" Edition (2014), Allahabad Law Agency, p. 1. * Tid.Preliminary by English Courts of justice which were but for the operation of the Judicature Acts, would be administered by those courts, which would be known as Courts of Equity”, Sir Henry Maine bas defined equity as “any body of rules, the primary source of which was neither customary nor written law, but the imperative dictates of conscience and which had been set forth and developed in the Courts of Chancery”. No doubt, the definition given by Prof. Maitland is an improvement over the definition of Story, but it also suffers from the same defect as the definition of Story. Therefore, we have to concede that the difference between equity and common law is more in form than in substance, the difference is more historical than in actual content.5 xo history of Equity Jurisdiction’: M4 At the end of the 13th Century, we find three great Courts definitely established: the King’s Bench, Lit _ the Court of Common Pleas, and Lit the Exchequer. Caw 9g Oe Kirs ‘A Conrt ATS All of these administered the Common Law. The Exchequer was, however, something more than a Court—it was also an administrative department of the Government with the Chancery as its secretarial office. At the head of the Chancery stood the Chancellor, who was then not a judge, but “the King’s Secretary of State for all the Departments”. Whatever writing had to be done in the King’s name was done under the Chancellor's supervision. Thus, the writs whereby actions were begun in the courts of law were ——— “Ahmad, Agil, Equity, Trust, Mor tgage & Specific Relief Act, 14" Edition (2008), Central Law Agency, Allahabad, p. 5 pase, D. D-Equity, Trusts and Specific Relief, 7 Edition (2001), Kamal Law House, Kolkata, p. 3 5Preliminary ffice. The Chancellor was brought into a closer contact with the administration of justice in another way. Persons who could not get relief in the Courts petitioned the King for redress, as a matter of grace. These petitions were referred to the Chancellor, f time they were addressed direct to him. issued from his ©} and in course o! > Inthe 14th Century, it appears that Chancery was operating as a court, affording remedies for which the strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors often had theological and clerical training and were well versed in Roman law and canon law.’ The Chancery entertained petitions where the petitioner has a moral right, which the common law Courts would not protect, or were not competent to protect, due to the peculiar system of procedure obtaining there. Thus, the Chancery undertook to enforce fiduciary obligations known as uses. By that time an ordinance was passed (1349), referring all matters of grace to the Chancellor, and by the end of the 14th Century, the Chancery became a permanent judicial tribunal having regular sittings. > Inthe 15th Century, uses became very popular and thus “one great field of substantive law fell into the hands of the Chancellor”. The judicial power of Chancery was clearly recognised. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century.® > Meanwhile, the Chancery had extended its jurisdiction considerably, and its extent was popularly indicated by the words “Fraud, Accident and Breach of Confidence’. In the course of the 16th Century, equity developed the rules by which it would administer justice in the field thus assigned to it. They are knownas the rules of “equity and good 7 Worthington, Sarah (12 October 2006). Equity. Clarendon Law Serie Ox‘vtd University Press. pp. 10-11. W Series (2nd ed.), ® hups://en.wikipedia.org/wiki/Equity_(law). Last accessed on 28.8.2019. 6Preliminary conscience’ > Inthe 17th Century, the Chancery had to struggle, for its life against the Common Law Courts, until James I finally decided that the Chancery could prevent men from going to Courts of Law, by injunction. From the time of the Restoration, equity is recognised as a part of the law of the land. > By the end of the 18th Century, equity became a definite system and at last made its way into the textbooks. It was a century of great Chancellors, with the last of whom, Lord Eldon, equity ceased to expand, and the period of ‘legislative interference’ began. > Atlast came the Judicature Acts of 1873 and 1875 which abolished the old Courts of Common Law and the Court of Chancery, and established instead, a High Court of Justice, divided into five divisions. Since 1881 it has only three divisions: the Chancery, the King's Bench, and Probate and Admiralty Division. Each of the divisions has to administer both sets of rules of Law and Equity; and in matters where there is a conflict between them, “the rules of equity shall prevail”. To sum up, whatever may have been the origin of ‘equity’ as a supplement to the laws of England, aimed at preventing hardship and securing justice, it has now become a definite system of rules as exact and binding as any other part of those laws. “ Nature and Scope of Equity?: To a layman, equity must primarily mean right doing, or justice in the purely ethical meaning of that word. Nevertheless, to the leamed in any legal system equity rarely retains that freshness of interpretation because some sort of technical significance tends to attach to it. — ° Supra Note 5, p. 5-6.Le of Under the Roman Law, English Law & Legal System of Bangladesh Equity Under e Chancery Courts in Ej iples that were exercised by the ¢ hancery Cou ngland under prine a thew equitable jurisdiction Statutory recognition of the principles of Equity is found in: > the Specific Relief Act, 1877, > the Trusts Act, 1882, > the Succession Act, 1925, > the Guardian and Wards Act, 1890, > the Contract Act, 1872 and > the Transfer of Property Act, 1882. Specific Relief Act: The provisions of the Specific Relief Act regarding injunction, specific performance, cancellation, rectification, and recession, etc., Tecognize, the principles of Equity to a large extent. Banerjee in his Tagore Law Lectures observes that “the Specific Relief Act is applying the Provisions of the Indian Acts is therefore of Peculiarly valuable character.” The Trusts Act: The rules contained in the Trusts which were administered at that ti the name of ‘justice’, Act, 1882 are Substantially the same ; ime by English Courts of Equity under ‘equity’ and “good Conscience’, The Succession Act, 1925: The Successj ion Act also Contains the Principles of equity, justice and good conscier nce. The Guardian and Wards Act, 1890: the Principles of. equity, justice and "AIR 1969 SC 823. 26Equity Under the Roman Law, English Law & Legal System of Bangladesh good conscience are also reflected in this Act. The Contract Act: There are certain equitable doctrines which have been imported in the Contract Act, and some of the important doctrines relating generally to the law of contract are the doctrines of penalties and forfeitures, stipulation as to time in a contract, equitable relief on ground of misrepresentation, fraud and undue influence. Sections 64 and 65 of the Contract Act are nothing but the codified form of the maxim, “He who seeks equity must do equity.” Transfer of Property Act: The Transfer of Property Act has also included many doctrines of Equity originated in the Court of Chancery in England. Apart from such doctrines Sections 48 and 51 of the present Transfer of Property’Act are based on the principles of Equity. The English equitable doctrine of part- performance has also been drawn in Section 53-A of the Transfer of Property Act. 27Equity & Common Law Synopsis ~ CommonLaw ¢ Common LawCourts 4 Deficiencies of Common Law 4 Relationship of Equity and the Common Law How Equity Supplemented the Common Law? Distinction Between Equity and Common Law ‘* Common Law: Common law was administered by three separate courts, namely, (i) the King’s Bench, (ii) the Court of Common Pleas and (iii) the Exchequer. The term ‘Common Law’ which these courts administered denotes the law based on the common custom of the country. This law was formulated, developed and administered by these courts. Since the Norman conquests, there began to develop a body of rules under the highly centralized systems of the Normans, which were for the most part unwritten and comprised of the general immemorial customs of the country. In course of time, these customs were recognized as law (Common Law) and began to be administered by the Royal Courts, knownas Common Law Courts. By the time of Edward I, these rules were administered in the three aforesaid Courts which had grown up during the same period.' “ Common Law Courts: The foundation of Equity in England goes back to the end of 13th century when Edward I was ruling the country. At that time there were three separate Courts, namely: i, the King's Bench, ii, the Court of Common Pleas, and » Ahmad, Aqil, Equity, Trust, Morigage & Specific Relief Act, 14° Edition (2008), Central Law Agency, Allahabad, p. 15. 31Equity & Common Law iii, the Exchequer. These courts were Royal Courts known as Common law Courts. ‘1, . ” ne law formulated, developed and administered by these courts was th le common law. Sot Maticiencies of Common Law: It is definitely true to say that in England equity jurisdiction developed because of the deficiencies of the Common Law and the inadequacy of the remedies. Following were the deficiencies found in the Common Law: “i Incomplete or No Remedies: That the reasonable remedy was not available in all cases for many wrongs remained unredressed for want of proper writ; Y= : Inadequate Relief: That the relief granted generally by the Common Law Court was not always adequate. There was no relief by way of specific performance of the contract or injunction, and appointing receiver; and Defective Procedure: That the procedure at the Common Law Courts was defective and unsatisfactory. The inevitable result was that persons who could not get relief in Common Law Courts presented their petition to the King in Council and later to the iii. Chancellor. As noted by the Pomeroy, (i) rigidity of judicial precedents, (ii) adherence to feudalistic institutions and technicalities of forms, (iii) antipathy towards Roman Law, and (iv) the Stee aand rigid procedure, were the outstanding defects of the Common Law.” "" Edition (2007), Eastern Book Company, ‘Trusts and Specific Relief, 4 2 Gandhi, B.M. Equity, Lucknow, P- 13. -NY Sr ar rer rere 4, Afow Equity Supplemented the Common Law? Equity supplemented the Common Law in the following three ways: i. By creating “new rights”. ii. By inventing “new remedies”. iii. | By adopting a “new procedure”. i. New right: Equity has enforced rights which the Common Law Courts failed to enforce. Equity created new rights by recognizing trusts and giving beneficiaries rights against trustees. Equity also developed the equity of redemption. 35Equity & Common Law \ fi.” New remedies: Equity has developed additional remedies to common law for the enforcement of common law nights, be created new remedies such as: a) Specific prifocoaie, Rectification, c) Rescission, d) Injunctions. iii, | New procedure: The procedure in the Common Law Courts was defective, especially in not compelling or even allowing a defendant to give evidence and in limiting the inquiry to the parties to the action. The Chancellor issued subpoenas compelling the attendance of the defendant or witnesses whom he could examine on oath. + Distinction Between Equity and Common Law: The main points of distinction between Equity and Common Law are as follows: 1. Usually the Common Law Courts dealt with both Civil and Criminal matters while the Chancery Court confined itself to Civil matters only. The plaintiff used to go to the Common Law Courts as a matter of right while the person seeking relief in the Court of Chancery humbly prayed for the benefit of the Court’s grace by invoking the exercise of its prerogative. Thus, it was the discretion of the Equity Court (Le., the Chancery Court) to give remedies to the petitioner or not. ‘ommon Law Courts the misconduct of the plaintiff di in the Court of Chancery misconduct ofthe d for the refusal of equitable reliefs. 2. 3. Inc id not disentitl him to claim legal relief but plaintiff was taken as a groun mmon law is derived from feudal customs while equity is derived . Col : anon law.* from Roman and C dure in the court of equity which was borrowed from 5. The proce! 1916 Edition, P- 14. s maitland’s Equity. 36Classification of Equity Jurisdiction Synopsis Classification of Equity Jurisdiction 1. Exclusive Jurisdiction; 2. Concurrent Jurisdiction; and 3. Auxiliary Jurisdiction Development of the auxiliary jurisdiction Perpetuation of testimony. Discovery of document “+ Classification of Equity Jurisdiction The jurisdiction of Equity has been classified by American Judge, Story as: ob 1. Exclusive Jurisdiction, —> C@wr~m tbat vet 2. Concurrent Jurisdiction; and 3. Auxiliary Jurisdiction. Strahan has given a comprehensive description of the above three jurisdictions of the Court of Chancery, which is as follows!: i. Matters in which the Common Law gave no right but conscience required that certain right should be given, such matters were said to be within the “exclusive” jurisdiction of Equity; or ii, Matters in which the Common Law provided the remedies required by conscience but the remedies which it gave to enforce the rights were insufficient to satisfy justice, such matters were said to be within the “Concurrent” jurisdiction of Equity; ii, Matters in which the Common Law provided the remedies required by conscience and remedies were sufficient to satisfy Justice, but to which its process was too defective so to secure the remedies without the assistance of Equity, such matters were said to be within the “auxiliary” jurisdiction of Equity. —— * Ahmad, Aqil, Equit , Agil, Equity, Trust, Mortgage & § i " 2008), Central Law Agency, Allahabad, p, 26. forigage & Specific Relief Act, 14% Edition ( 41cation OF Equity jurisdiction 1. The Exclusive Jurisdiction: The common law courts in some ca consequently provided no relief, Such cases were covered by the exclusive junsdiction of the Chancery Court. The nights enforced and the remedies granted in such cases were purely equitable. The most important branch of this jurisdiction was the right of persons claiming under trusts. s did not recognise the right and For example, if A transferred property to B for the use or benefit of C, B became the absolute owner of the property at common law and he committed no illegal wrong if he abused the confidence by using the property otherwise than for the benefit of C. C, therefore, could not get any relief at common law, This was unconscionable and the Court of Chancery intervened by recognizing B’s right or interest in the property and giving him the relief in case of an encroachment, Equity gave Tecognition to the right of beneficiary to use the usufruct of the trust property, as it was he for whose benefit the trust was created.2 In the case of married woman’s separate estate, equity allowed it to be settled on her as Separate estate; and even in the absence of a trust, if the property was meant for her separate use, the husband was regarded as a trustee for her. Exclusive jurisdiction also included the application of the doctrines of conversion, election, satisfaction and marshaling of assets and securities as also the enforcement of a wife’s equity to a settlement. Relief against forfeiture of mortgaged Property and penalties was yet another head of exclusive jurisdiction of | equity. the Concurrent Jurisdiction: Rom g ae ine) In some cases the jurisdiction of the court of equity was concurrent, with the jurisdiction of courts of common law. The common law courts in such 2 Singh, G.P. Principles of Equity, 9* Edition (2013), Central Law Agency, Allahabad, p. 26. 3 Tandon, M. P. Principles of Equity with Trusts & Specific Relief. 14" Edition (2014), Allahabad Law Agency, p. 22 42Caassification of Equity Jurisdiction es recognised the right but granted no complete and adequate remedy. Under the concurrent jurisdiction, both, the Common Law Court, and Court of Equity had power to adjudicate but on the ground of their Tespective principles and procedures. The procedure followed by Equity afforded advantages which were not attainable at law. This was the reason that suitor preferred to go to the Chancery Court as additional or altemative remedy was available there. It means that where the relief granted by Common Law Courts was not sufficient for the redressal of the plaintiff's right the remedy provided by equity in concurrent jurisdiction was proper, adequate and efficient. Thus, under concurrent jurisdiction, equity and common law worked hand in hand. Equity made the existing teliefs of common law sufficient by providing additional remedy.* The Equity Court extended his helping hand by providing adequate remedies where the remedies were inadequate or where there were no remedies at common law. The concurrent jurisdiction was based on various circumstances, e.g., > the legal remedy was not available, or > the equitable remedy was more efficient, or > the procedure in equity afforded advantages which were not attainable at law. Unlike the exclusive jurisdiction which provided relief where the right Was not recognised at common law, the concurrent jurisdiction provided an additional or altemative remedy. Some cases fell under the head of fraud, mistake and accident, Specific performance, account, contribution, administration of estates, partnership, a * a s, set determination of boundanes, s° dower and partition. All such cases . e common law were recognised by the co “Supra Note 1, p. 27, 43av Sara not have recovered damages, he could not obtain injunction. > 4 an: K yo Las 3. Auxiliary Jurisdiction: \ ~~ In matters within the auxiliary jurisdiction of ‘equity thé nature and extent of both the rights and the remedies depended exclusively on legal Principles, and with regard to them equity intervened to supply the defects of legal process so as to enable the Courts of Law to give effectively the legal remedies. 1 Herein the Court of Chancery simply lent its assistance to the litigants in Common Law Courts towards the enforcement ofa legal right through a legal remedy. This Jurisdiction was called auxiliary because it was ee > 1904AC 179.- an ‘The Maxims of Equity Hanbury has said,’ “The maxims of equity are the ruts observation of developed equitable doctrines and the ideas embodied them are far older than their articulate expression”. of in “+ Maxims of Equity: The most important of these maxims are the following: LA. Equity will not suffera wrong to be without a remedy. 2. Equity follows the law. ; . He who seeks equity, must do equity. ‘4, He who comes to equity, must come with clean hands. 5. Delay defeats equity. 6. Equality is equity. 7. Equity looks to the intent, rather than to the form. 8. Equity looks on that as done which ought to have been done, 9. Equity imputes an intention to fulfil an obligation. \A0, Where there is equal equity, the law shall prevail. 1. Where equities are equal, the first in time shall prevail. 12. Equity acts in Ppersonam. 1. Equity will not Suffer a Wrong to be Without a Remedy ) Meaning of The Maxim: This maxim is the root of the whole Jurisdiction of equity. It provides that every right will be enforced and wrong redressed by equity if not by common law, provided the Tight be suitable for judicial enforcement or the wrong be capable of tedress by Courts of Justice. to remain unredressed if it is capable of being remedied by courts of 4‘The Maxims of Equity b) Application and Cases: In the case of Ashby it was held by Chief Justice Hall that, when the law clothes a man with a right, he must have a means to vindicate and maintain it, and remedy if he is injured in the exercise and enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. The very object of this maxim is to give effect to a right which is suitable for judicial enforcement but which were not enforced at common law on account of some technical defect > Snell traces to this maxim the auxiliary jurisdiction of Equity. He further says that it must not be supposed that every moral wrong was redressed by Court of Chancery but remedy was provided only in those cases which were not taken up by the Common Law owing to some technical defects.4 c) Limitations of The Maxim: The maxim is subject to the following restrictions: i The maxim does not apply where the right in question is a moral one and is not capable of being judicially enforced. The Court of Equity only interferes when there is an invasion of legal or equitable right. ii The second limitation is that Equity does not interfere to remedy any wrong where the right and the remedy, both completely belong to the domain of the law. iii The maxim does not apply where a party has destroyed, lost, or waived his right to an equitable remedy by his own act or laches. This maxim does not apply where right and remedy both completely belong to the domain of law. {Smith's Leading Cases, 13" Edition, p. 253 | Supra Note I, p. 53. Snell's Principles of Equity, 28" Edition (1982), Sweet & Maxwell Lid, London, p. 29 78suits. 2. Equity Follows The Law a) Meaning of this Maxim: This is an attempt to indicate the relationship between common law and equity, which is a complex one. This maxim indicates that, where possible, equity will ensure that its own rules are in line with the common law ones. This maxim means that equity is not a body of jurisprudence acting contrary to law, but is rather a supplement to the law. It is understood in the following two respects: i. Equity adopts and follows the rules of law in all cases where applicable. ii. Equity follows the analogies of law. § Shanta Ram Tukaram v. Smt Dagu Bai T. Patil, AIR 1984 Bom. 182. 763. He Who Seeks Equity, Must Do Equity a) Meaning of the Maxim: The maxim means that to obtain an equitable relief, the plaintiff must himself be prepared to do ‘equity’. In other words, a plaintiff must recognize and submit to the right of his adversary. This is based on the principle of reciprocity i.e., give and take. This does not mean that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record 12, It only means that he must do justice as to the matters in respect of the assistance of equity is asked'?. b) Areas of Application and Cases: The maxim has application in the following doctrines: i. Illegal loans. ii. Doctrine of Election. iii. | Consolidation of Mortgages. iv. Notice to redeem mortgage. y. Wife’s equity to settlement. vi. Equitable estoppel. Restitution of benefits on cancellation of transaction. viii. Set-off Illegal loans: In Lodge v. National Union Investment Co. Ltd. 14, One B borrowed money from M by mortgaging certain securities to him. M was an unregistered money-lender. Under the Money-Lenders’ Act, "2 Hanson v. Keating, (1844) 4 Hare. 1, 6. '3 Gibson v. Gloldsmid, (1854) 5. De, G.M. & S.757. '* (1907) 1 Ch 300. 79require the party to whom such reliei is granted tO Make any compensation to the other which justice may require. iii, Phe Transfer of Property Act, 1882: WY “> Section 35 of the Transfer of Property Act lays down that, he who takes a benefit under an instrument must accept or reject the instrument as a whole. \y2 Becton 51 of the Transfer of Property Act provides that, a transferee, who makes improvement on any immovable property believing in good faith that he is absolutely entitled thereto and is subsequently evicted therefrom by a person having better title, is entitled to compensation for the improvement made by him. > But, Section 67A of the Act contains a rule of consolidation applicable on mortgagee. 834, He Who Comes To Equity, Must Come With Clean Hands a) Meaning of the Maxim: . Le The maxim is sometimes expressed in the form: “He that hai committed inequity shall not have equity”. It means that whenever a party who seeks to set the judicial machinery in motion and to obtain some equitable remedy, has violated conscience, good faith or other equitable principle, then the doors of the Court of equity will be shut against him and the Court will refuse to interfere on his behalf to acknowledge his right or to award him any relief.?! The maxim is based on conscience and good faith. While a Court of Equity tries to promote and enforce justice, good faith, uprightness and faimess on the part of the defendant, it nonetheless, stringently demands '9 Islam, Mahmudul, The Law of Civil Procedure (Vol.1), 1* Edition (2006), Mullick Brothers: Dhaka, pp. 649-650. x United Liner Agencies v. Ehram Jute Baling, 27 DR (AD) 170. Singh, G. P. Principles of Equity, 9" Edition (2013), Central Law Agency: Allahabad, p. 68. 845. Delay Defeats Equities i Maxim: a) Meaning of the This maxim is based on a Latin phrase “Vigilan tibus, 7 dormentibus, jura subvenient.” which means “Equity aids the Vigilant and not the indolent”. If one sleeps on his own rights, his rights will slip away from him, Legal claims are barred by statutes of limitation and equitable claims may be barred not only by limitation law but also by unreasonable delay, called laches. Therefore there should be some time-limit for prosecution of a claim in a court of justice because it is dangerous and impracticable to leave it to the sweet will of a person entitled to it. This idea has been accepted by every legal system and this maxim is an indicator for the time-limit though in a crude form.?8 This maxim applies only when a claim is made to equitable relief.?9 b) Areas of Application and Cases: i. Laches and Acquiescence: Laches means negligence or unreasonable delay in asserting or enforcing a right. Delay defeats equity. Equity aids the vigilant and 28 Supra Note 24, pp. 69-70. ?* Lord Chelmsford in Clarke and Chapman v. Hart, (1858) 6 HL Cas 633. 88‘The Maxims of Equity 6. Equality is Equity a) Meaning of the Maxim: The maxim of ‘equality is equity’ is also expressed as “equity delighteth in equality”. The maxim aims to distribute property and losses in proportion to the claims and liabilities of the persons concerned. Equality here connotes proportionate and not literal equality. It is observed in Halsubury’s Laws of England: “The maxim that ‘equality is equity’ expresses in a general way the object both of law and equity, namely, to effect a distribution of property and losses proportionate to the several claims or to the several liabilities of the persons concemed. Equality in this connection does not mean literal equality, but proportionate equality, however, operated more effectually in a court of equity than a court of law, and is exemplified in many departments of equitable jurisprudence”.>4 In Streel vs. Dixon?5, Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity”. b) Areas of Application and Cases: Application of this maxim can be understood from the following>*: i. Equity’s dislike for joint tenancy and presumption of tenancy-in- common. ii, Equal distribution of joint funds and joint purchases. iii. | Contribution between co-trustees, co-sureties and co-contractors. iv. _Ratable distribution of legacies. y. Power to appoint. vi. Marshalling of assets. Halsbury’s Laws of England, 4" Edition, Vol. 16, 1301, p. 872. (1881) 17 Ch D825, ‘ spare” Supra Note 24, p. 76, 91?. Equity Looks To The Intent Rather To The Form a) Meaning: The maxim is stated in other form as “Equity regards substance rather than form’. The maxim means that Equity regards the spirit and not the letter of the law and that the actual words of the contract are not so very material as the actual intention of the parties entering into tt. 923. Equity Looks On That As Done Which Ought To Have Been Done a) Meaning of the Maxim: This maxim has been expressed in various ways as “Equity Tegards that as done which ought to be done” or ‘which ought to be done is considered to be done’ or “Equity regards and treats that as done which in good conscience ought to be done’. It means Equity regards a person 95Equity Imputes An Intention To Fulfil An Obligation 9. Equi i Maxim‘!: a) Meaning of the oh The Court of Equity was established to do right, and it seems - natural, therefore, that it should impute to persons an intention a themselves to do what is right. The maxim means that when a person is under an obligation to do some acts and he does one which is not exactly of the kind agreed to be done, yet bears much resemblance to it or which is of such a kind that it may fairly be taken to have been his intention or design to satisfy his obligation by what he has done, the equity will assume that he had intention to fulfil his obligation. The reason of the mule is that it is right to put the most favourable Construction on a man’s acts and to presume that he intends to be just before he affects to be generous. a “' Supra Note 1, p. 72. 9810. Where There Is Equal Equity, The Law Shall Prevail a) Meaning of the Maxim: This maxim is based on the principle that where two persons have equal equitable right in respect of the particular subject-matter and one of the persons is also having legal right under the common law in respect of the same subject matter, in such circumstance the law shall prevail over equitable right of one of the person. In Thornlike v. Hunt,? the Court observed —“If the defendant has a claim to the passive protection of a Court equal to the claim which the plaintiff has to call for the active protection of the Court, he who has the legal estate will ‘prevail’. The Court further said that thus buyer for value of the legal estate without notice of a prior equitable interest is entitled to priority in “equity of law” as it is well settled that equity does not act contrary to law. b) Application of the maxim: One of the most frequent and important consequence and application of this principle is the doctrine that where a purchaser of property for a valuable consideration and without notice of a prior equitable claim in the same subject-matter, obtains the legal claim in addition to his equitable claim, he becomes entitled to a property both in Equity and at law.11. Where The Equities Are Equal The First In Time Shalj Preval a) Meaning of the Maxim"; | The maxim means that when there is no legal estate in the field ang the question is as among the equitable estates only, the rule is thatthe person whose Equity attached to the property first will be entitled, pnonty over the other. Thus, if A enters into a contract, for the sale of his house, with B and then with C, the interests of B and C both being equitable, B will have Priority over C because his equity attached to the property first. The true meaning and effect of the maxim, have often been misunderstood. But the Court of Equity will not prefer the one to the other on the mere ground of Priority of time, unless and until it finds upon an examination of their relative merits, that there is no other sufficient ground of preference between them or in other words that these equities are in all respects equal and that if the one has on other grounds a better Equity thah the other. In applying the maxim, the courts must consider the nature and condition of their respective equitable claims, circumstances and mannet of their acquisition and the whole conduct of each party with respect thereto, in examining these Points, the Court may apply the test not of any earner “ Supra Note |, p. 77. 102/ wo Equity Acts in Persoam*” a) Meaning of the Maxim: This maxim means that equity acts on your body. Courts of equity, described as courts of conscience, operate primarily in personam binding ee een *” Supra Note 24, pp. 108-111. 104‘The Maxims of Equity the conscience of a person thus bringing an individual’s conscience under its grip. Equity has the power to make you do so something or to shop doing something, because if you refuse, you lose your liberty for as long as it takes. See 16 1909 e pe 1S b) Areas of Application and Cases: writs of “execution asa result of of which forcible possession of the goods or property of the defendant was obtained and given to the plaintiff. But equity did not follow this method. It issued orders against the defendant personally and made him act accordingly, failing which he was punished for disobedience by attachment of his property orcommittal for contempt. As equity’s jurisdiction is primarily over the defendant personally, it is immaterial whether the property in dispute is within the jurisdiction of the court or otherwise. It may be situated abroad or may not be within the reach of the court, but if the defendant was wit capable of being served with the proceedings outside the jurisdiction, equity courts made orders against him personally. Accordingly in exercise of its jurisdiction in personam a court of equity could compel performance of contracts and trusts*® relating to property not locally situated but situated outside its jurisdiction. ©) Limitations: The doctrine is, however, subject to the following limitations: i. The defendant himself must be within the jurisdiction, or should be capable of being served with process outside the jurisdiction. ii. The remedy sought in such cases must be an equitable remedy. iii. | The defendant should be subjected to some obligation arising from his own act; or as Strahan puts it, “When the dispute is one of the conscience”. “* Ewing v. Orr Ewing, (1883) 9 AC 34. 105Den. okt > a Ro a oxidise» ) «0p Ny Jer pred’ nd | oe dy gent ber OY a lh AA ot a ue “4 ah wi grr T° vot Drv lo SF Gitte wae a “fourd & arth Usp a ee wo? ed - om p-4 ops Cork Benet MR 7 4 J eprity Hs carpsinf —? nin . 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