defence of the infant if a suit be commenced against him; a power which is incident to the jurisdiction of every court of justice: (d) but when the d Cro. Jac. 641. 2 Lev. 163. T. Jones. 90. Executors.-Where an executor has an express legacy, the court of chancery looks upon him as a trustee with regard to the surplus, and will make him account, though the spiritual court has no such power. 1 P. W. 7. And where an executor was directed to lay out the testator's personalty in the funds, unnecessarily sold out stock, kept large balances in his hand, and resisted payment of debts by false pretences of outstanding demands, he was charged with five per cent. interest and costs, but the court refused to make rests in the account. 1 Jac. & W. 586. And see on this subject, ante, 2 Book, ch. 32. Marshalling Assets.-The testator's whole personal property, whether devised or not, is assets both in law and equity, to which creditors by simple contract, or of any higher order, may have recourse for the satisfaction of their demands. But the testator may, by clear and explicit words, exempt his personalty from payment of debts as against the devisee of his realty, though not as against creditors. The rule in equity is, that in case even of a specialty debt, the personal assets shall be first applied, and if deficient, and there be no devise for payment of debts, the heir shall then be charged for assets descended. 2 Atk. 426. 434. For lands are in equity a favoured fund, insomuch that the heir at law, or devisee of a mortgagor, may demand to have the estate mortgaged by such devisor himself, cleared out of the personalty, Vin. Ab. tit. Heir. U. pl. 35. 1 Atk. 487. And a specific devisee of a mortgaged estate is entitled to have it exonerated out of real assets descended. 3 Atk. 430. 439. But at law there is no such distinction of favour shewn to lands; a bond creditor may, if he please, proceed immediately against the beir, without suing the personal representative of his deceased debtor. As to the order, in which real assets shall be applied in equity for payment of debts (after exhausting the personal effects, supposing them not exempted), the general rule is, first, to take lauds devised simply for that purpose, then lands descended, and lastly estates specifically devised, even though they are generally charged with the payment of debts. 2 Bro. 263. Equitable assets are such as at law cannot be reached by a creditor, as a devise in trust to pay debts, of an equity of redemption subject to a mortgage in fee, or where the descent is broke by a devise to sell for the payment of debts. 1 Vern. 411. 1 Ch. Ca. 128. n. 2 Atk. 290. But lands so devised, subject to a mortgage for years, are legal assets. One exception to the pow er of resorting to what might seem equitable assets occurs, where money by a marriage agreement is articled to be invested in land. Such a fund is not assets for the payment of debts, contracted subsequent to the articles, in equity any more than at law. 3 Wms. 217. The distinc tion is important, that equitable assets are distributable between creditors pari passu, but in the distribution of legal assets, courts of equity will not take away the legal priority; and as against judgment creditors, a debtor cannot convert his estate into equitable assets, such debts being an immediate charge upon the land. Thus it is apparent, that if bond creditors who may come upon the real estate, will yet take satisfaction out of the personalty, sweeping away the only fund, which the simple contract creditors could resort to at law, equity will, for the benefit of the latter, substitute them as it were in the place of the former, and will charge the real estate to the amount of the personal estate taken in execution by such bond creditors. This is called marshalling of assets, which may also be done in favour of legatees. 3 Woodd. Vin. Lec. 484, 9. Bankruptcy.-See the consolidation act, 6 Geo. IV. c. 16., commencing its operation with the present year, and the decisions applicable to its several enactments, ante, 2 Book, ch. 31. in notes. Friendly Societies.-By the 33 Geo. III. c. 54. s. 8. it is provided, that in case of neglect or refusal of treasurer or trustee, &c. of friendly society to deliver account, &c. &c. it shall and may be lawful to and for every such society, in the name of the treasurer or trustee, vel cet. as the case may be, to exhibit a petition in the high court of chancery, &c. which court may proceed thereupon in a summary way, and make such order therein, upon hearing all parties concerned, as to such court in its discretion shall seem just; and all assignments and transfers made in pur. suance of such order, shall be good and effectual in law to all intents and purposes whatsoever. Where a friendly society was founded on erroneous principles tending to exhaust its funds, an injunction was granted to restrain payments, the bill being filed for the purpose of having the society dissolved. 2 J. & W. 390. See further, as to the cases respecting friendly societies, 1 Montg. Bkpt. Laws, 1 ed. 523. PRACTICE.-The general rules of practice which prevail in chancery will now be concisely con sidered. Subpana.-The defendant is not bound to appear till the return of the process of subpoena, though he be served with it long before. If he live in London, or within twenty miles, he bas four days, exclusive from the time of service for putting in his appearance: if he live above twenty miles, he has eight days, and no clerk in court is to issue any attachment but upon affidavit of such service. Ord. Cha. 95. 4th edit. The rule is the same when the subpoena is made returnable at a future day or immediately. But when the subpoena is made returnable the last day of the term, the defendant is at liberty to appear the first return of the term following. Wy. Prac. Reg. 36. Newl. Pr. 35. Without an affidavit of service of subpoena to hear judg went on the absent party, or on the party appearing (if the former sued out the subpoena) the interest of a minor comes before the court judicially, in the progress of a cause, or upon a bill for that purpose filed, either tribunal indiscriminately will take care of the property of the infant. court will make no decree. For the plaintiff neglecting this precaution cannot pray a decree nisi against the defendant; but the cause must stand over, in order that the plaintiff may produce an affidavit of the service of the subpoena. On the other hand, a defendant omitting this necessary step, cannot have the bill dismissed with costs; but the cause is struck out of the pa per, and no costs are given on either side. Newl. Ch. Pr. 156. If the bill be to stay proceedings at law, and the plaintiff in the action be abroad, the court will grant an order that service on his attorney at law, shall be deemed good service on the defendant in equity: but it seems there should be an affidavit of merits. 4 Ves. 359. sed vide 3 Bro. C. C. 24. So service on one defendant, who was agent and late partner of another defendant abroad, was ordered to be good service on the latter, in a bill to stay proceedings at law. Bunb. 107. 1 Dick. 26. sed vide 1 Ch. Ca. 67. And the court dispensed with the usual service of a subpoena where the object was to get an answer to an amended bill, which would be important, and the defendant had appeared before on two motions, and was abroad. 6 Ves. 171. So service on the mother of infant defendants who could not be found, 2 Atk. 70.; and on their father-in-law, 8 Ves. 141. has been deemed good service. So leaving a subpoena with the turnkey of a prison, to be good service on a prisoner at large. Hind. 85. In a bill of revivor, the defendant absconding, the court will not substitute service on the defendant's original clerk in court, for service on the defendant, 2 Dick. 547.; neither will the court (in cases where the bill is not to stay proceedings at law) order, upon the circumstance of the defendants being out of the jurisdiction, and their having filed a bill relative to the same subject, that service on their clerk in court, by whom that bill was filed, should be good service. 6 Bro. C. C. 386. Nor will the court in a cross cause, because the defendants are numerous, many being out of the jurisdiction, others not to be found, and some peers of the realm, direct that service on their clerk in court, in the original cause, should be sufficient. 3 Bro. C. C. 429. But in the case of a single defendant, in a cross cause, the court made the order, the defendant being in Ireland. 4 lb. 478. If a bill be filed against corporation, the process must be served on some one of the members. Hind. 87. Service of the subpoena abroad is good service, and the defendant may be afterwards attached upon it when he comes into this country. 4 Bro. C. C. 213. 18 Ves. 496. But is doubtful whether a foreigner can be served with a subpoena in a foreign country. Pre. Ca. 83. 1 Newl. Ch. Prac. 62-8. Answer.-A defendant in all cases, by the course of the court, has eight days, exclusive of the day of appearance, to put in his defence to the plaintiff's bill. If he cannot within that time complete his answer or plea, he may as of course obtain orders for further time to plead or answer; but such indulgence is not allowed to a demurrer where a party intends to demur to the whole bill; the terms of the order for time generally being that the defendant should have time to answer, plead, or demur, not demurring alone. Ord. Ch. 96. 10 Ves. 447. A bishop has been ordered to answer upon oath. Toth. 12. The nobility of this country, and lords of the upper house of parliament, and the widows and dowagers of the temporal lords, shall answer upon protestation of honour only. Ord. Ch. 40. Prec. Ch. 92. 1 P. W. 146. To a bill against a corporation to discover writings, the defendants answering under their common seal, and not being sworn would answer nothing in their own prejudice; it was ordered that the clerk of the company and such principal members as the plaintiffs should think fit should answer on oath, and that the master settle the oath. 1 Vern. 117. A quaker puts in his answer upon his solemn affirmation and declaration. And in a case where the bill appeared frivolous, the court permitted him to put in answer without oath or affirmation. 1 P. W. 781. Demurrer.-Unless the bill is signed by counsel, a demurrer will hold, 5 Mad. 378.; but it need not be put in on oath. Mitt. Pl. 169. Where draft of amended bill is signed by same counsel who signed the original bill, and no new engrossment is required, the counsel's name need not be repeated on the engrossment. 1 S. & S. 155. Whenever any ground of defence is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. A demurrer is an allegation of a defendant, which admitting the matters of fact (but not of law, Lord Raym. 18.) alleged by the bill to be true, shews that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer. Prac. Reg. 131. The causes of demurrer are merely upon matters in the bill (Prac. Reg. 132.) or upon the omission (3 P. W. 395.) of matter which ought to be therein or attendant thereon, and not upon any foreign matter alleged by the defendant. The principal ends of a demurrer are to avoid a discovery which might be prejudicial to the defendant, to cover a defective title, or to prevent unnecessary expense. 3 P. W. 150. 12 Mod. 171. Amending Bill.-After a motion to dismiss and undertaking to speed the cause, plaintiff can only amend by special application. 4 Mad. 268. In general defendant is not bound to answer any interrogatories in amended bill which are the same as were used in the original bill, to which an answer was put in and admitted to be sufficient. But if plaintiff in his amended bill states a new case, he may call on defendant to answer the interrogatories contained in the original bill. $ Mad. 71. An attachment does not issue for want of answer to amended bill, until it be entered in the six clerks' book. 1 Sim. & Stu. 118. In some cases though issue is joined, court 2. As to idiots and lunatics: the king himself used formerly to commit the custody of them to proper committees, in every particular case; but (4) See 1 Book, p. 302 to 306. 2 Book, p. 291. n. b. Also note, infra, tit. Lunatics, page 427. gives leave to amend the bill. 1 Jac. & W. 227. Where after issue joined an amendment is necessary to a bill, an order is made for the amendment within a fortnight, or the bill to stand dismissed. 5 Mad. 45. vid. Newl. Prac. 82. But a demurrer may be filed, though the ordinary time for answering be out, provided it is filed before process of contempt is issued. 5 Bro. C. C. 372. If process of attachment has issued, he must pay or tender costs of the contempt, before he is at liberty to file his demurrer. Pro Confesso.-Where decree is made upon a bill taken pro confesso, the court, whether the defendant has or has not appeared, pronounces an absolute decree in the first instance, and does not give the defendant a day to shew cause. 1 Sim. & Stu. 44. Impertinence.-Nothing relevant is considered as scandalous. 2 Ves. 24. Where a bill is filed by cestui que trust, for the purpose of removing trustees, it is not impertinent to charge misconduct and corrupt motives, &c. but otherwise to charge malice or personal hostility against the plaintiff. 5 Mad. 450. A bill cannot be referred for impertinence after answer, or praying for Ves. 631. But it may for scandal at any time. See the reason,* Newl. Pr. 38. 5 Ves. 656. 2 Ves. 631. 1 Dick. 173. time. Newl. Prac. 38. 2. Contempt.-Sequestration will issue for contempt in not putting in examination to interrogatories before master. 1 S. & S. 274. As also for contempt in not producing papers. Id. ib. note. Where a defendant is in contempt for want of an appearance, or of an answer, and enters his appearance, or files his answer, and then tenders to the plaintiff the costs of his contempt, and those costs are refused, it is necessary, in order that he may be discharged of his contempt, that he should obtain an order for that purpose, which is made as of course upon the six clerks' certificate of his appearance, or answer, and upon the payment or tender of the plaintiff's costs of the contempt. 1'S. & S. 121. Attachment.-After a contempt duly prosecuted to an attachment, with proclamations returned, no plea or demurrer shall be admitted, unless upon motion and affidavit satisfying the court of the cause of the delay. Crd. Ch. 99. 4th edit. Writ of Rebellion-Though in an attachment or proclamations the sheriff cannot justify breaking open doors in executing such process, yet the commissioners in executing writ of rebellion may, it seems, use that force, if it be necessary, to apprehend the defendant. Gilb. For. Rom. 76. Newl. Pr. 14. The commissioners, having taken the defendant, have a discretionary power to take bail for the defendant's appearance on the return day of the writ. But if bail is not given, it is the duty of the commissioners to bring up the defendant without delay to the court of chancery, they having no right to keep him in prison. 1 Hen. Bla. 468. If they let him escape, having taken him, Toth. 381. the court, upon an affidavit, and a day given to shew cause to the contrary, will order them to be committed. Toth. 38. 40. The commissioners are responsible to this court only for irregularities in their duty. 1 Vern. 269. Hind. 122. 1 Newl. Ch. Prac. 76. Serjeant at Arms.-Upon the return of non est inventus, upon a commission of rebellion, the next process is a serjeant at arms, whose duty it is (though an officer of the house of lords), by himself, or his messengers, to execute all warrants against any person who has thus stood out. If the party against whom this process issues be taken upon it, he is to be brought to the bar of the court to answer the contempt; but upon paying costs, and entering his appearance, or putting in his answer, as the case may be, he is entitled to his discharge. 2 Ves. 110. 16 Ves. 418. And the same rule holds with respect to captions on any other processes; but if the answer be afterwards reported insufficient, the process of contempt may be carried forward from where it left off. 2 Ves. 110. Sequestration. Upon the return of non est inventus by the serjeant at arms, or if the defendant escape after having been taken upon any of the former processes, and persists in his contempt, a sequestration issues. See 3 Madd. 114, 115., which is a writ directed to four or more commissioners, empowering them to enter into the defendant's real estates, and to sequester into their own hands the rents and profits thereof, and all his personal estate whatsoever. See 2 Meriv. 395. 4 Ves. 735. This process may also be discharged upon the defendant's clearing his contempt and paying costs. See 3 Atk. 468. 594. Distringas.-In the case of a corporation aggregate, against whom an attachment does not lie, a writ called a distringas is the first process, after these defendants have refused to appear to and answer the bill. It is a writ to the sheriff, commanding him to distrain the lands, goods, and chattels of the corporation, till the court shail make order to the contrary. An alias and pluries distringas issue if necessary, and upon the last a sequestration. Upon the first writ the sheriff generally levies, 40s. issues; upon the second, 47.; and in the pluries distringas, he levies the whole property. Hind. 140. Newl. C. P. 89. A sequestration nisi is the first process against the warden of the Fleet, or a sworn clerk, if in contempt, they being supposed personally present in court. Mos. 238. 2 Dick. 635. Where there are several defendants, a necessary one of whom is in contempt, the plaintiff cannot bring the cause to a hearing against the VOL. II. 44 now, to avoid solicitations and the very shadow of undue partiality, a war-` rant is issued by the king (e) under his royal sign manual to the chancellor or keeper of his seal to perform this office for him: and, if he acts improperly in granting such custodies, the complaint must be made to the king himself in council. (f) But the previous proceedings on the commission, to inquire whether or no the party be an idiot or a lunatic, are on the law side of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular course of law. 3. The king, as parens patriae, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And therefore whenever it is necessary, the attorney-general at the relation of some informant (who is usually called the relator), files ex officio an information in the court of chancery to have the charity properly established. By statute also 43 Eliz. c. 4. authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lancaster, respectively, to grant commissions under their several [428] seals, to inquire into any abuse of charitable donations, and rectify the same by decree; which may be reviewed in the respective courts of the several chancellors, upon exceptions taken thereto. But, though this is done in the petty bag office in the court of chancery, because the commission is there returned, it is not a proceeding at common law, but treated as an original cause in the court of equity. The evidence below is not taken down in writing, and the respondent in his answer to the exceptions may allege what new matter he pleases; upon which they go to proof, and examine witnesses in writing upon all the matters in issue: and the court may decree the respondent to pay all the costs though no such authority is given by the statute. And as it is thus considered as an original cause throughout, an appeal lies of course from the chancellor's decree to the house of peers, (g) notwithstanding any loose opinions to the contrary. (h) 4. By the several statutes relating to bankrupts," a summary jurisdiction is given to the chancellor, in many matters consequential or previous to the commissions thereby directed to be issued; from which the statutes give no appeal." On the other hand, the jurisdiction of the court of chancery doth not extend to some causes, wherein relief may be had in the exchequer. No information can be brought, in chancery, for such mistaken charities, as are given to the king by the statutes for suppressing superstitious uses. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property: not even in cases where he is a royal trustee. (i) Such causes must be de e See Book I. ch..3. f3 P. Wins. 10%. See Reg. Br. 267. g Duke's char, uses, 62. 128. Corporation of Burford v. Lenthal. Canc. 9 May, 1743. i Huggins v. York Buildings' Company. Nov. 1741. Lightboun v. Attorney-general. Cane. 24. Oct. 1740. Reeve v. Attorney-general. Canc. 2a others, till he has proceeded to a sequestration against such one. 2 Atk. 510. See 1 Newl. Ch. Pr. 82. et seq. (5) See note, 427. infra, tits." Commission" and Committee. (6) See 1 Book, 303. n. (16). and 3 Bro. P. C. 329. Chitty. (7) See preceding note, tit. Charities, p. 427. (8) Sce generally note, ante, page 427. tit. Bankruptcy. (9) The summary jurisdiction of the court of equity, in cases of bankruptcy, must be personally exercised by the chancellor, lord-keeper, or the lords commissioners of the great seal. 2 Woodd. 400. Christian. i termined in the court of exchequer, as a court of revenue; which alone has power over the king's treasure, and the officers employed [429] in its management: unless where it properly belongs to the duchy court of Lancaster, which hath also a similar jurisdiction as a court of revenue and, like the other, consists of both a court of law and a court of equity. In all other matters, what is said of the court of equity in chancery will be equally applicable to the other courts of equity. Whatever difference there may be in the forms of practice, it arises from the different constitution of their officers: or, if they differ in any thing more essential, one of them must certainly be wrong; for truth and justice are always uniform, and ought equally to be adopted by them all. Let us next take a brief, but comprehensive, view of the general nature of equity, as now understood and practised in our several courts of judicature. I have formerly touched upon it, (k) but imperfectly: it deserves a more complete explication. Yet as nothing is hitherto extant, that can give a stranger a tolerable idea of the courts of equity subsisting in England, as distinguished from the courts of law, the compiler of these observations cannot but attempt it with diffidence: those who know them best, are too much employed to find time to write; and those who have attended but little in those courts, must be often at a loss for materials. : Equity then, in its true and genuine meaning, is the soul and spirit of all law positive law is construed, and rational law is made by it. In this equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity, and a court of law, as contrasted to each other, are apt to confound and mislead us as if the one judged without equity, and the other was not bound by any law. Whereas every definition or illustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity in opposition to each other, will be found either totally erro- [430] neous, or erroneous to a certain degree. 1. Thus in the first place it is said, (7) that it is the business of a court of equity in England to abate the rigour of the common law. But no such power is contended for. Hard was the case of bond-creditors, whose debtor devised away his real estate; rigorous and unjust the rule, which put the devisee in a better condition than the heir; (m) yet a court of equi, ty had no power to interpose. Hard is the common law still subsisting, that land devised, or descending to the heir, shall not be liable to simple contract debts of the ancestor or devisor, (n) although the money was laid out in purchasing the very land; and that the father shall never im mediately succeed as heir to the real estate of the son: (0) but a court of equity can give no relief; though in both these instances the artificial reason of the law, arising from feodal principles, has long ago entirely ceased.10 The like may be observed of the descent of lands to a remote relation of the whole blood, or even their escheat to the lord, in preference to the owner's half brother; (p) and of the total stop to all justice, by caus. ing the parol to demur, (q) whenever an infant is sued as heir, or is party to a real action. In all such cases of positive law, the courts of equity, as k Book I. introd. § 2 & 3. ad calc. 1 Lord Kaims. princ. of equit. 44. o Ibid. ch. 14. pag. 203. (10) This is altered in certain cases, by statute 47 Geo. III. sess. 2. ch. 74. Sce ante, 2 Book, 378. n. 10. |