This maxim, however, is still applicable, in certain cases. For example, where a statute creates a new right which cannot be enforced at law, equity will create new remedies to enforce it."

SECTION 7. EQUITY LOOKS AT THE INTENT RATHER THAN THE FORM.

This maxim is characteristic of the greater freedom of action of the equity courts, as compared with the common law courts, and of their efforts to do substantial justice rather than enforce technical rules.

The effects of the application of this doctrine are well illustrated in the case of equitable mortgages."

8

This maxim has also been applied by the courts in the construction of trusts, and of contracts of suretyship. This maxim was applied in the case of equitable liens in the case of Badgerow vs. Manhattan Trust Co.,10 where the court said: "It must be remembered that the form of the agreement which creates a lien is not as material as the ultimate intent of the parties. Equity looks through form to substance. If the intent to charge designated property is established the lien follows."

SECTION 8. EQUALITY IS EQUITY.

Under this maxim equity will treat alike all members of a class. Those under a liability will be compelled to share such liability either equally or proportionally, according to the circumstances of the particular case; while the members of a class possessed

• Rhaten vs. Baker, 104 Ill. App., 653.

7 Flagg vs. Mann, 2 Samn. (U. S.), 533. See Chapter on Mortgages.

Vol VII.-2.

Texas vs. Hardenberg, 10 Wall., 68.

• Dood vs. Wilson, 4 Del. Ch., 108. 10 64 Fed. Rep., 931.

of a common right will be given the benefits accruing therefrom either equally or proportionally.

The most important product of this maxim is the doctrine of contribution. The maxim is also applied in the settlement of the estates of insolvent debtors.11

SECTION 9. EQUITY AIDS THE VIGILANT AND NOT THOSE WHO SLUMBER ON THEIR RIGHTS.

This maxim has a close resemblance to the statute of limitations, but goes further. Both common law and equity courts are alike bound by statutes of limitations, in that after the period provided by the statute has run neither class of courts can grant any relief. Before the expiration of such period, however, the fact of the delay of the plaintiff in bringing his action will not be considered by a common law court (except perhaps as affecting the credibility of the plaintiff's claim), while equity courts on the other hand may, and frequently do, refuse to grant relief on account of delay for a period less than that provided for by the statute. This is particularly true in those cases where one of two innocent parties must suffer a loss.

This question is discussed by the Supreme Court of the United States in the case of Wagner vs. Baird,12 the decision in which is in part as follows:

"The important question is, whether the complainants are barred by the length of time.

"In cases of concurrent jurisdiction, courts of equity consider themselves bound by the statutes of limitation which govern courts of law in like cases; and this rather in obedience to the statutes, than by 13 7 Howard, 232.

11 International Bank vs. Sherman,

101 U. S., 403.

analogy. In many other cases they act upon the analogy of the limitations at law; as where a legal title would in ejectment be barred by twenty years' adverse possession, courts of equity will act upon the limitation, and apply it to all cases of relief sought upon equitable titles, or claims touching real estate.

'But there is a defense peculiar to courts of equity, founded on lapse of time and the staleness of the claim, where no statute of limitations directly governs the case. In such cases courts of equity often act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights, or long acquiescence in the assertion of adverse rigths. (2 Story Eq., Sec. 1520.)

"A court of equity will not give relief against conscience or public convenience where a party has slept upon his rights. 'Nothing,' says Lord Camden (4 Bro. Chr. R., 640), 'can call forth this court into activity but conscience, good faith, and reasonable diligence; when these are wanting, the court is passive and does nothing. Length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of original transactions; it operates by way of presumption in favor of the party in possession. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance or impediment caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the Chancellor. The party guilty of such laches cannot screen his title from the just imputation of staleness merely by the allegation of an imaginary impediment or technical disability.

"This doctrine has been so often asserted by this court, that it is unnecessary to vindicate it by argument. It will be sufficient to refer to Piatt vs. Vattier (9 Peters, 405), a case much resembling the present, and Bowman vs. Wathen (1 Howard, 189).

"Can the complainant's case stand the test of this reasonable and well established rule of equity?

"The bill does not assert that either the trustees or the cestuis que trust were ignorant of the transaction between Lawson and O'Bannon, or of the fraud practiced on Lawson, if any there was. Yet, with the exception of the caveat filed in Washington, in 1799, they show no assertion of claim under this voluntary post-nuptial settlement, from its date (June, 1794), till the filing of this bill in 1840. John O'Bannon lived till 1812; yet in all this time (sixteen years), no bill is filed to set aside his assignment from Lawson for the fraud now alleged, while the circumstances were fresh and capable of proof or explanation.

"In 1813 (perhaps in 1811), the defendants, or those under whom they claim, entered upon these lands; they paid large and valuable considerations for their respective portions, without any knowledge of this lost deed of family settlement, or reason to suspect fraud in the transfer to O'Bannon. patent obtained by Cotton, and his effect of conferring on them the they reposed in confidence on it. and expenditure of their capital upon the land for a space of twenty-seven years, they have made it valuable; and what was a wilderness scarce worth fifty cents an acre, is now enhanced by their labor a hundred fold.

And whether the warranty, had the legal title, or not, By their industry

"No bad faith, concealment or fraud can be imputed

to them. If the trustees or cestuis que trust chose to reside in Kentucky and not look after these lands for near half a century, they can have no equity from a disability that was voluntary and self-imposed. The residence of the trustees in Kentucky was not considered as an obstacle or objection, in the minds of those who executed the deed, to their assuming the trust and care of lands in Ohio. There was no greater impediment to the prosecution of their claim in a court of equity at any time within forty years than there is now. They have shown nothing to mitigate the effect of their laches and long acquiescence, or which can entitle them to call upon a court of equity to investigate the fairness of transactions after all the parties to them have been so long in their graves, or grope after the truth of facts involved in the mist and obscurity consequent on the lapse of nearly half a century.

"We are all of opinion, therefore, that the lapse of time in the present case is a complete bar to the relief sought, and that the decree of the Circuit Court dismissing the bill should be affirmed with costs."

SECTION 10.

EQUITY ACTS SPECIFICALLY AND NOT BY WAY OF COMPENSATION.

This maxim has relation to the character of the relief which a court of equity gives. Where nothing is sought from the court except pecuniary damages, there is no reason for going into equity, as there is a plain and adequate remedy at common law. Such forms of relief, however, as specific performance, injunction, and reformation of instruments can only be obtained in equity. Equity will only give judgment for the payment of a sum of money, where it is given in connection with some peculiarly equitable form