Sivut kuvina

chancellor of the duchy of Lancaster, respectively, to grant *commis[*428] sions under their several seals, to inquire into any abuses 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) (3)

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. (4) 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) (5) Such causes must be determined in the court of exchequer, [ *429] as a court of revenue; which alone has power *over the king's treasury, and the officers employed 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 practiced 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 attempted but little in those courts must be often at a loss for materials.

(g) Duke's Char. Uses, 62, 128. Corporation of Burford v. Lenthal, Canc. 9 May, 1743. (h) 2 Vern. Ils.

(i) Huggins v. York Buildings' Company, Canc. 24 Oct. 1740. Reeve v. Attorney-General, Canc. 27 Nov. 1741. Lightbourn v. Attorney-General, Cunc, 2 May. 1743. (k) Book I, introd. § 2, 3, ad calc.

(3) [The most important piece of legislation on this subject is the charitable trusts act, 1853, of which the professed object is to secure the due administration of charitable trusts, and in certain cases a more beneficial application of charitable funds than that previously in operation.]

See, also, the charitable trusts acts, 1855 and 1860.

(4) This jurisdiction was transferred to the court of bankruptcy by statute 1 and 2 Wm. IV, c. 56.

(5) It has already been stated that a sovereignty is not suable in its own courts, except with its own consent, and this consent is given either by general law, or specially for the particular See note p. 257, supra.


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 erroneous, or erroneous to a certain [*430]


1. Thus in the first place it is said, (1) 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 equity 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, (6) and that the father shall never immediately 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 feudal principles, has long ago entirely ceased. 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 causing the parol to demur, (q) whenever an infant is sued as heir, or is party to a real action. (7) In all such cases of positive law, the courts of equity, as 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. În general law all cases cannot be foreseen; or, if foreseen, cannot be expressed some will arise that will fall within the *meaning, though not within the words, of the legislator; and others which may fall within the letter,may be contrary [*431] 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 (t) says, "lex non exacte definit, sed arbitrio boni viri permitit;” 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,

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(6) This rule is since abrogated by statute.

(7) [This delay of justice is remedied by the statute 11 Geo. IV and 1 Wm. IV, c. 47

3. 10.1

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 make 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 family 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 [*432] this species of trusts, 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 the circumstances 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 of a wife her dower in a trust-estate, (z) (8) yet allowing the husband his curtesy: 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 *the reverence that is shown, and generally [*433] very properly shown, to a 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 Puffendorf, 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 thing) by our principal antiquaries and lawyers; Spelman, () Coke, (e) Lambard, (f) and Selden, (g) and even the great Bacon (h) himself. But this was in the infancy of our courts of equity, before their juris

(10) Book II, ch. 20.

(x) See page 163.

(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 or 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 has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor's conscience." (a) Salk. 154. (b) 2 Vern. 259. 316. 3 Atk. 520.

(z) 2 P. Wis. 610. See book II, p. 337. (c) See the case of Foster and Munt (1 Vern. 473) with regard to the undisposed residuum of personal


(d) Quæ in summis itaque tribunalibus multi e legum canone decernunt judices, solus (si res exigerit) cohibeas cancellarius ex arbitrio; nec aliter decretis tenetur suæ curiæ vel sui ipsius, quin, elucente nova ratione recognoscat quæ voluerit, mutet et deleat prout suæ videbitur prudentiæ. Gloss, 108. (f) Archeion. 71, 72, 73. (g) Ubi supra.

(e) See pages 54. 55.

(h) De Augm. Scient. 1. 8, c. 3.

(8) [This anomaly no longer exists. See statute 3 and 4 Wm. IV, c. 105.]

diction was settled, and when the chancellors themselves, partly from their ignorance of law (being frequently bishops or statesmen), partly from ambition or Just 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 about 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 [*434] on no settled principles, as being never designed, and therefore never used for precedents. 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 feudal customs, as they prevailed in different ages in the Saxon and Norman judicatures; the other (but with 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 [*435] the 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 merely 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 and 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 uniformly. One court ought not to extend, nor the other abridge, a lawful provision deliberately settled by the parties, contrary

(i) Sce book II, p. 456.

(j) 2 Keb. 553, 555. Salk. 597. 6 Mod. 11, 60, 101.

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 the renewal of leases. Both courts will equitably construe, but neither pretends to control or change, a lawful stipulation or engagement.

[*436] *The rules of decision are in both courts equally apposite to the sub jects of which they take cognizance. Where the subject-matter is such as requires to be determined secundum æquum 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 et 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 ambassadors,(m) hostages, or ransom-bills.(a) In mercantile transactions they follow the marine law,(6) 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; (7) 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 [*437] or second use; upon these main pillars 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 judgment 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, (f) 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 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 in conscience; and all judgments at law, obtained through such fraud or

(k) 2 Atk. 239.

(1) De jure naturæ cogitare per nos atque dicere debemus ; de jure populi Romani. quæ relicti sunt ct tradita Ci, de Leg. 1. 3, ad calc.

(m) See book I, p. 253,

(n) Ricord v Bettenham, Tr. 5 Geo. III, B. R. (0) See book I, p. 75. Book II, pp. 459, 461, 467. (r) Ibid. 463. (8) 1 Cha. Ca. 57. (w) Eq. Ca. Abr. 367.

(x)2 Vern. 277.

(p) See book II, p. 513.
(7) Ibid. 50%.
(t) 2 P. Wins. 145.
(u)2 Cha. Ca. 152.
(y) Ibid. 638.
(2)2 Cha. Ca. 46.

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