well as the courts of law, must say with Ulpian, (r) “ hoc quidem perquam "durum est, sed ita lex scripta est.” 2. It is said, (s) that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature. In general law all cases cannot be foreseen; or if [431] foreseen, cannot be expressed some will arise that will fall with in the meaning, though not within the words, of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out of the letter, are often said to be within the equity, of an act of parliament; and so cases within the letter are frequently out of the equity. Here by equity we mean nothing but the sound interpretation of the law; though the words of the law itself may be too general, too special, or otherwise inaccurate or defective. These then are the cases which, as Grotius (1) says, “lex non exacte definite, sed arbitrio boni viri permittit;" in order to find out the true sense and meaning of the lawgiver, from every other topic of construction. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity: the construction must in both be the same : or, if they differ, it is only as one court of law may also happen to differ from another. Each endeavours to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter, that sense in a single tittle. 3. Again, it hath been said, (u) that fraud, accident, and trust, are the proper and peculiar objects of a court of equity. But every kind of fraud is equally cognizable, and equally adverted to, in a court of law; and some frauds are cognizable only there as fraud in obtaining a devise of lands, which is always sent out of the equity courts, to be there determined. Many accidents are also supplied in a court of law; as, loss of deeds, mistakes in receipts, or accounts, wrong payments, deaths, which makes it impossible to perform a condition literally, and a multitude of other contingencies and many cannot be relieved even in a court of equity; as, if by accident a recovery is ill suffered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a fami[432] ly settlement. A technical trust, indeed, created by the limitation of a second use, was forced into the courts of equity in the manner formerly mentioned; (w) and this species of trust, extended by inference and construction, have ever since remained as a kind of peculium in those courts. But there are other trusts, which are cognizable in a court of law as deposits, and all manner of bailments; and especially that implied contract, so highly beneficial and useful, of having undertaken to account for money received to another's use, (x) which is the ground of an action on the case almost as universally remedial as a bill in equity. 4. Once more; it has been said that a court of equity is not bound by rules or precedents, but acts from the opinion of the judge, (y) founded on r Ff. 40. 9. 12. w Book II. ch. 20. s Lord Kaims. princ. of equit. 177. t de aequitate. §3. y This is stated by Mr. Selden (Table-talk, tit. Equity), with more pleasantry than truth. "For law, we have a measure, and know what to trust to; equity is according to the conscience of him that is chancellor; and, as that is larger and narrower, so is equity. 'Tis all one, as if they should make the standard for the measure a chancellor's foot. What an uncertain measure would this be! One chancellor the circumstance of every particular case. Whereas the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection. Thus the refusing a wife her dower in a trust-estate, (x) yet allowing the husband his courtesy: the holding the penalty of a bond to be merely a security for the debt and interest, yet considering it sometimes as the debt itself, so that the interest shall not exceed that penalty, (a) the distinguishing between a mortgage at five per cent. with a clause of a reduction to four, if the interest be regularly paid, and a mortgage at four per cent. with a clause of enlargement to five, if the payment of the interest be deferred; so that the former shall be deemed a conscientious, the latter an unrighteous bargain: (b) all these, and other cases that might be instanced, are plainly rules of positive law; supported only by that reverence that is shewn, and generally very properly shewn, to a [433] series of former determinations; that the rule of property may be uniform and steady. Nay, sometimes a precedent is so strictly followed, that a particular judgment, founded upon special circumstances, (c) gives rise to a general rule. In short, if a court of equity in England did really act, as many ingenious writers have supposed it (from theory) to do, it would rise above all law, either common or statute, and be a most arbitrary legislator in every particular case. No wonder they are so often mistaken. Grotius, or Puf. fendorf, or any other of the great masters of jurisprudence, would have been as little able to discover, by their own light, the system of a court of equity in England, as the system of a court of law: especially, as the notions before mentioned of the character, power, and practice of a court of equity were formerly adopted and propagated (though not with approbation of the king) by our principal antiquaries and lawyers; Spelman, (d) Coke, (e) Lambard, (f) and Selden, (g) and even the great Bacon (4) himself. But this was in the infancy of our courts of equity, before their jurisdiction was settled, and when the chancellors themselves, partly from their ignorance of law (being frequently bishops or statesmen), partly from ambition or lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust decisions of the courts of law, had arrogated to themselves such unlimited authority, as hath totally been disclaimed by their successors for now above a century past. The decrees of a court of equity were then rather in the nature of awards, formed on the sudden pro re nata, with more probity of intention than knowledge of the subject; founded on no settled principles, as being never designed, and therefore never used, for precedents. [434] But the systems of jurisprudence, in our courts both of law and equity, are now equally artificial systems, founded on the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings: the one being originally derived (though much reformed and improved) from the feodal customs, as they prevailed in different ages in the Saxon and Norman judicatures; the other (but with has a long foot, another a short foot, a third an indifferent foot. It is the same thing with a chancellor's conscience." z 2 P. Wms. 640. See Book II. pag. 337. a Salk. 154. * b 2 Vern. 289. 316. 8 Atk. 520. c See the case of Foster and Munt, 1 Vern. 473. with regard to the undisposed residuum of personal estates. d Quae in summis tribunalibus multi a legum canone decernunt judices, solus (sires exigerit) cohibet cancellarius ex arbitrio; nec aliter decretis tenetur suae curiae vel sui ipsius, quin, elucente nova ratione, recogMoscat quae voluerit, mutet at deleat prout suae videbitur prudentiae. (Glos. 108.). e See pag. 54. 55. h de Augm. Scient, 1. 8. c. 3. f Archeion. 71, 72, 73. g ubi supra. equal improvements) from the imperial and pontifical formularies, introduced by their clerical chancellors. The suggestion indeed of every bill, to give jurisdiction to the courts of equity (copied from those early times), is that the complainant hath no remedy at the common law. But he who should from thence conclude, that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent and variety of the cases in our equity reports, must think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation in both courts are, or should be, exactly the same: both ought to adopt the best, or must cease to be courts of justice. Formerly some causes, which now no longer exist, might occasion a different rule to be followed in one court, from what was afterwards adopted in the other, as founded in the nature and reason of the thing: but, the instant those causes ceased, the measure of substantial justice ought to have been the same in both. Thus the penalty of a bond, originally contrived to evade the absurdity of those monkish constitutions which prohibited taking interest for money, was therefore very pardonably considered as the real debt in the courts of law, when the debtor neglected to perform his agreement for the return of the loan with interest: for the judges could not, as the law then stood, give judgment that the interest should be specifically paid. But when afterwards the taking of interest became legal, as the necessary companion of commerce, (i) nay after the statute of 37 Hen. VIII. c. 9. had declared the debt or loan itself to be "the just and true intent" for which the [435] obligation was given, their narrow-minded successors still adhered wilfully and technically to the letter of the ancient precedents, and refused to consider the payment of principal, interest, and costs, as a full satisfaction of the bond. At the same time more liberal men, who sate in the courts of equity, construed the instrument according to its "just and true intent," as mérely a security for the loan: in which light it was certainly understood by the parties, at least after these determinations; and therefore this construction should have been universally received. So in mortgages, being only a landed as the other is a personal security for the money lent, the payment of principal, interest, and costs ought at any time, before judgment executed, to have saved the forfeiture in a court of law, as well as in a court of equity. And the inconvenience, as well as injustice, of putting different constructions in different courts upon one and the same transaction, obliged the parliament at length to interfere, and to direct by the statutes 4 & 5 Ann. c. 16. and 7 Geo. II. c. 20. that, in the cases of bonds and mortgages, what had long been the practice of the courts of equity should also for the future be universally followed in the courts of law; wherein it had before these statutes in some degree obtained a footing. (j) Again; neither a court of equity nor of law can vary men's wills or agreements, or (in other words) make wills or agreements for them. Both are to understand them truly, and therefore both of them uniformly. One. court ought not to extend, nor the other abridge, a lawful provision delibe rately settled by the parties, contrary to its just intent. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages; as a rent of 51. an acre for ploughing up ancient meadow: (k) nor against a lapse of time, where the time is material to the contract; as in covenants for renewal of leases. Both courts will i See Book II. pag, 456. j 2 Keb. 553. 555. Salk. 697. 6 Mod. 11. 60. 101. equitably construe, but neither pretends to control or change, a lawful stipulation or engagement. The rules of decision are in both courts equally apposite to the [436] subjects of which they take cognizance. Where the subject matter is such as requires to be determined secundum aequum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal equity. In matters of positive right, both courts must submit to and follow those ancient and invariable maxims " quæ relicta sunt es tradita." (1) Both follow the law of nations, and collect it from history and the most approved authors of all countries, where the question is the object of that law; as in the case of the privileges of embassadors, (m) hostages, or ransom-bills. (n)" In mercantile transactions they follow the marine-law, (o) and argue from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction, they both follow the law of the proper forum : (p) in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject ; (q) and, if a question came before either, which was properly the object of a foreign municipal law, they would both receive information what is the rule of the country,(r) and would both decide accordingly. Such then being the parity of law and reason which governs both species. of courts, wherein (it may be asked) does their essential difference consist? It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief. Upon these, and upon two other accidental grounds of jurisdiction, which were formerly driven into those courts by narrow decisions of the courts of law, viz. the true construction of securities for money lent, and the form and effect of a trust or second use; upon these main pillars [437] hath been gradually erected that structure of jurisprudence, which prevails in our courts of equity, and is inwardly bottomed upon the same substantial foundations as the legal system which hath hitherto been delineated in these commentaries; however different they may appear in their outward form, from the different taste of their architects. 1. And, first, as to the mode of proof. When facts, or their leading circumstances, rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath with regard to the truth of the transaction; and, that being once discovered, the judg ment is the same in equity as it would have been at law. But, for want of this discovery at law, the courts of equity have acquired a concurrent jurisdiction with every other court in all matters of account. (s) As incident to accounts, they take a concurrent cognizance of the administration of personal assets, (t) consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators. (u) As incident to accounts, they also take the concurrent jurisdiction of tithes, and all questions relating thereto; (w) of all dealings in partnership, (x) and many other mercantile transactions; and so of bailiffs, receivers, factors, and 1 Dejure naturae cogitare per nos atque dicere debemus; de jure populi Romani, quae relicta sunt et tradita. (Cic. de Leg. 1. 3. ad calc.) m See Book I. pag. 253. n Ricord v. Bettenham. Tr. 5. Geo. III. B. R. o See Book I. pag. 75. Book II. pag. 459, 461. 467. q Ibid. 504. r Ibid, 463. t2 P. Wms. 145. p See Book II. pag. 513. u 2 Chan. Cas. 152. w 1 Equ. Cas. abr. 367. (11) By the 22 Geo. III. c. 25. all contracts for the ransom of a captured ship, or the goods on board, are rendered absolutely void. agents. (y) It would be endless to point out all the several avenues in human affairs, and in this commercial age, which lead to or end in accounts. From the same fruitful source, the compulsive discovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud; (2) all matters in the private knowledge of the party, which, though concealed, are binding on conscience; and all judgments at law, obtained through such fraud or concealment. And this, not by impeaching [438] or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of the judgment, obtained by suppressing the truth; (a) and which, had the same facts appeared on the trial as now are discovered, he would never have attained at all.12 12 2. As to the mode of trial. This is by interrogatories administered to the witnesses, upon which their depositions are taken in writing, wherever they happen to reside. If therefore the cause arises in a foreign country, and the witnesses reside upon the spot; if, in causes arising in England, the witnesses are abroad, or shortly to leave the kingdom; or if witnesses residing at home are aged or infirm; any of these cases lays a ground for a court of equity to grant a commission to examine them, and (in consequence) 13 to exercise the same jurisdiction, which might have been exer. cised at law, if the witnesses could probably attend.14 3. With respect to the mode of relief. The want of a more specific remedy, than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases. To instance in ex. ecutory agreements. A court of equity will compel them to be carried into strict execution, (b) unless where it is improper or impossible: instead of giving damages for their non-performance. And hence a fiction is esta blished, than what ought to be done shall be considered as being actually done, (o) and shall relate back to the time when it ought to have been done originally and this fiction is so closely pursued through all its consequences, that it necessarily branches out into many rules of jurisprudence, which form a certain regular system. So of waste, and other similar inju ries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction. (d) Over questions that may be tried at law, in a great multiplicity of actions, a court of equity assumes a jurisdiction, [439] to prevent the expense and vexation of endless litigations and suits. (e) In various kinds of frauds it assumes a concurrent (ƒ) jurisdiction, not only for the sake of a discovery, but of a more extensive ⚫y 2 Vern. 638. 2 Chan. Cas. 32. f2 P. Wms, 156. z 2 Chan. Cas. 46. a 3 P. Wms. 148. Year book, 22 Edw. IV. 37. pl. 21. b Equ. Cas. abr. 16. c 3 P. Wms. 215. d1 Ch. Rep. 14. ei Vern, 308. Prec. Chan. 261. 1 P. Wms, 672, Str. 404. (12) One material difference between a court of equity and a court of law as to the mode of proof, is thus described by lord chancellor Eldon : "A defendant in a court of equity has the protection arising from his own conscience in a degree in which the law does not affect to give him protection. If he positively, plainly, and precisely, denies the assertion, and one witness only proves it as positively, clearly, and precisely, as it is denied, and there is no circumstance attaching credit to the assertion, overbalancing the credit due to the denial, as a positive denial, a court of equity will not act upon the testimony of that witness. Not so at law. There the defendant is not heard. One witness proves the case; and, however strongly the defendant may be inclined to deny it upon oath, there must be a recovery against him." 6 Ves. Jun. 184. (13) It is not correct, that where a court of equity will grant a commission to examine witnesses, whose attendance cannot be procured to give testimony in a court of common law, it will in such case also grant relief. For though it is very usual to file a bill praying a discovery, and that a commission may be issued to examine witnesses who live abroad, no doubt can be entertained that if the bill proceeded to pray relief, and that relief was such as a court of law was fully competent to administer, a demurrer to the bill would hold, unless it was a case where the courts exercise a concurrent jurisdiction. Chitty. (14) As to this point, vid. Newl. Ch. P. 117. et seq. |