Maxims: What Use Are They Today?

October 23, 2013 § 3 Comments

As we’ve seen over the past several weeks, the jurisprudence of equity developed radically apart from the law. It looked past forms to substance, beyond rigid concepts to a more fluid approach to affording relief. It sought to make whole those who were wronged. 

Mississippi long adhered to the principle that the lines of demarcation between law and equity jurisdiction should be preserved. See, e.g., Cotton States Life Ins. Co. v. Cunningham, 141 Miss. 474, 482, 106 So. 766 (1926).

Those lines were kept clear and distinct from the earliest days of statehood through two, separate sets of procedures, one for chancery court and another for circuit court. Each set of procedures addressed the unique needs and approaches of the different courts.

Since the MRCP, however, our procedures have become more alike. In fact, except notice of R81 matters, practice is procedurally the same in both courts.

With the advent of the MRCP, in my opinion, the line of demarcation between the courts has become increasingly blurred. It seems that the concept that equity follows the law has been elevated to a principle that somehow equity is inferior to the law, or that it should be constrained by the same strict forms and conventions that limit the law courts.

That’s unfortunate because there is a need for flexibility and ability to do substantial justice in our court system, as equity has been doing for many centuries.

So the point I’m getting at is this: when you are pressing a point in chancery, don’t overlook using the maxims themselves as persuasive authority. They are a part of our law of equity just as is every MSSC and COA ruling arising from chancery appeals. They are good law.

Maybe if more lawyers would throw the maxims into their trial arguments and appellate briefs, it would reawaken an awareness of the great equity principles in our jurisprudence. And by doing so, perhaps we will return to the core idea of the great difference in approach between the two courts, and the validity of preserving the difference. 

As Judge Griffith said:

… there is not to be forgotten the obligation of equity judges to firmly retain the jurisdiction which the court of chancery definitely possesses, not only because a vast experience has justified the propriety and better efficiency of it, but because of a reason already elsewhere touched upon; that two courts, one more largely of the people and the other solely of a judge, existing and in operation side by side, each within its own sphere, tend to keep the course of justice directed the more upon an even keel and better along a middle, a deeper and a truer channel. Griffith, § 26, p. 28. 

What is the future of equity and chancery courts as we plunge deeper into the 21st century and move toward the second 100-years of our statehood? That’s a matter we’ll explore at a later date.


§ 3 Responses to Maxims: What Use Are They Today?

  • […] the argument in this case discourage you from asserting claims based on the maxims in other cases. I’ve stressed here before that the maxims underly all actions in and relief granted by chancery courts, so they are always a […]

  • Judge, we are inundated now in chancery with legal requirements to be in the pleadings and rigid rules for different cases that, to me, are much more at home in a court of law than a court of equity. Your checklists and the formulas that must be adhered to are examples. Do you see this changing? Do you see this as opposed to equity? Finally, do you believe this to be in the best interest of the equity courts?

    • Larry says:

      In my opinion, the trend is toward more legalism and rigidity. Not trying to sound gloomy, but I question whether we will have separate equity courts at all in 20 years or so.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading Maxims: What Use Are They Today? at The Better Chancery Practice Blog.


%d bloggers like this: