1. Upon the abolition of the court of wards, the caro, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in every feodal view; but resulted to the king in his court of chancery, together with the general protection(c) of all other infants in the kingdom. When

() F. N. B. 27.

[*427

nizance in the court of chancery. For the details under this head, see 1 book, ch. xvii. and notes.

5thly. Injunctions.-In a modern work the subject of injunctions is considered under the head of fraud, (see 1 Mad. Ch. 125 ;) but it seems to deserve a distinct consideration. An injunction is a method by which the court of chancery interferes to prevent the commission of fraud and mischief. The exercise of this authority may be obtained,-1st. To stay proceedings in other courts. 2d. To restrain infringements of patent. 3d. To stay waste. 4th. To preserve copyright. 5th. To restrain negotiation of bills, &c. or the transfer of stock. 6th. To prevent nuisances, and in most cases where the rights of others are invaded and the remedy by action at law is too remote to prevent increasing damage. See 1 Mad. Ch. 157 to 165. An injunction to stay proceedings at law does not extend to a distress for rent, (1 Jac. & W. 392;) nor has equity any jurisdiction to stop goods in transitu in any case; nor will the court restrain the sailing of a vessel for such purpose by injunction. 2 Jac. & W. 349.

6thly. Bills of Peace, which form an essential check on litigation. 1 Bro. P. C. 266. 2 Bro. P. C. 217. Bunb. 158. 1 P. Wms. 671. Prec. Cha. 262. 1 Stra. 404. For this purpose a perpetual injunction will be granted. See 10 Mod. 1. 1 Bro. P. C. 268. This bill cannot hold in disputes between two persons only. 2 Atk. 483, 391. 4 Bro. C. C. 157 Vin. tit. Ch. 425, pl. 35. 3 P. Wms. 156.

7thly. Bill of Interpleader will lie to prevent fraud or injustice, where two or more parties claim adversely to each other, from him in possession; otherwise it will not lie, (1 Mer. 405;) for in such case it is necessary the two claimants should settle their rights before the person holding possession be required to give up to either. 2 Ves. Jr. 310. Mitf. Pl. 39. 1 Mad. Ch. 173. And, on the same principle,

8thly. Bills or Writs of Certiorari, to remove a cause from an inferior or incompetent jurisdiction.

9thly. Bills to perpetuate testimony in danger of being lost before the right can be ascertained.

10thly. Bills to discover evidence in possession of defendant, whereof plaintiff would be otherwise wholly deprived, or of deeds, &c. in defendant's custody.

11thly. Bills of Quia Timet, for the purpose of preventing a possible future injury, and thereby quieting men's minds and estates, &c. 1 Mad. Ch. 224. Newl. on Contr. 93,

493.

12thly. Bills for the delivering up of Deeds.-As where an instrument is void at common law, as being against the policy of the law, it belongs to the jurisdiction of equity to order it to be delivered up. 11 Ves. 535. In Mayor, &c. of Colchester vs. Lowton, lord Eldon says, "My opinion has always been (differing from others) that a court of equity has jurisdiction and duty to order a void deed to be delivered up and placed with those whose property may be affected by it, if it remains in other hands." 1 Ves. & B. 244. 13th. Bills for apportionment or contribution between persons standing in particular relations one to another. 5 Ves. 792. 2 Freem. 97.

14th. For dower and partition.

15th. To establish moduses.

16th. Bills to marshal securities.

17th. Bills to secure property in litigation in other courts. And

18th and lastly. Bills to compel lords of manors to hold courts, or to admit copy holders and bills to reverse erroneous judgments in copyhold courts. Vide 1 Madd. Ch. 242 to 253.

4th. INFANTS. The protection and care which the court of chancery exercises over infants have already been incidentally noticed. Vide 1 book, chs. xvi. xvii. and notes. Wards of Court.-To make a child a ward of court, it is sufficient to file a bill; and it is a contempt to marry a ward of court, though the infant's father be living. Ambl. 301. The court of chancery, representing the king as parens patriæ, has jurisdiction to control the right of the father to the possession of his infant; but the court of King's Bench has not any portion of that delegated authority. The court of chancery will restrain the father from removing his child, or doing any act towards removing it, out of the jurisdiction. So will the court refuse the possession of the child to its mother if she has withdrawn herself from her husband. 10 Ves. 52. Co. Litt. 89, (a.) n. 70. 2 Fonb. Tr Eq. 224, n. (a.) 2 Bro. C. C. 499. 1 P. Wms. 705. 4 Bro. C. C. 101. 2 P. Wms. 102. The court retains its jurisdiction over the property of a ward of court after twenty-one, if it remains in court, and, if the ward marries, will order a proper settlement to be made, or

therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one; and from all proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the 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

(✔) Cro. Jac. 641. 2 Lev. 163. T. Jones, 90.

reform an improper one, unless the ward consents to the settlement either in court or under a commission. 2 Sim. & Stu. 123, n. (a.) In case the husband assign the property of the wife, who is a ward of court, it shall not prevail, but the court will direct even the whole of the property in question to be settled on the wife and her children, and the assignee will not be entitled even to the arrear of interest accrued since the marriage. 3 Ves. 506.

5th. SPECIFIC PERFORMANCE OF AGREEMENTS. The jurisdiction of the courts of equity in matters of this kind, though certainly as ancient as the reign of Edward IV., did not obtain an unresisting and uniform acquiescence on the part of the public till many years afterwards. See 1 Roll. Rep. 354. 2 ib. 443. Latch. 172.

Realty. Thus equity enforces agreements for the purchase of lands, or things which relate to realties, but not (generally) those which relate to personal chattels, as the sale of stock, corn, hops, &c.: in such cases the remedy is at law. 3 Atk. 383. Newl. Contr. 87.

That which is agreed to be done is in equity considered as already done, (2 P. Wms. 222;) and therefore when a husband covenants on his marriage to make a settlement charged upon his lands, which he is afterwards prevented from completing by sudden death, the heir shall make satisfaction of the settlement out of the estate. Ib. 233.

Personalty. In agreements, with penalties for the breach of them, it is necessary to distinguish the cases of a penalty intended as a security for a collateral object from those where the contract itself has assessed the damages which the party is to pay upon his doing or omitting to do the particular act. In these latter cases equity will not interfere either to prevent or to enforce the act in question, or to restrain the recovery of damages after they have become due; but in the former, where it plainly appears that the specific performance of that act was the primary object of the agreement, and the penalty intended merely to operate as a collateral security for its being done, though at law the party might make his election either to do the particular act or to pay the penalty, a court of equity will not permit him to exercise such right, but will compel him to perform the object of the agreement. Newl. Contr. cap. 17. Thus, as the principle whereon a specific performance of agreement relating to personals is refused is that there is as complete a remedy to be obtained at law, therefore, where a party sues merely on a memorandum of agreement, (a mere memorandum not being regarded as valid at law,) a court of equity will give relief; for equity suffers not a right to be without a remedy. 3 Atk. 382, 385. But it is only where the legal remedy is inadequate or defective that courts of equity interfere. 8 Ves. 163. Equity will not enforce an agreement for the transfer of stock, (10 Ves. 161;) but it has been held that a bill will lie for performance of agreement for purchase of government-stock where it prays for the delivery of the certificates which give the legal title to stock. 1 Sim. & Stu. 590. And it seems the court will entertain a suit for the specific performance of a contract for the purchase of a debt. 5 Price, 325. So to sell the good will of a trade and the exclusive use of a secret in dyeing, (1 Sim. & Stu. 74;) but not without great caution. See 1 P. Wms. 181.

6th. TRUSTS.-Trusts may be created of real or personal estate, and are either, 1st, Express; or, 2d, Implied. Under the head of implied trusts may be included all resulting trusts, and all such trusts as are not express. Express trusts are created by deed or will. Implied trusts arise in general by construction of law upon the acts or situation of parties. 1 Mad. Cha. 446.

Lunatics.-The custody of the persons and estates of lunatics was a power not originally in the crown, but was given to it by statute for the benefit of the subject. 1 Ridgw. P. C. 224; et vid. 2 Inst. 14. And now, by the statute de prerogativâ regis, (17 Edw. II. c. 9 & 10,) the king shall have the real estates of idiots to his own use, and he shall provide for the safe keeping of the real estates of lunatics, so that they shall have a competent maintenance, and the residue is to be kept for their use. 1 Ridgw. P. C. 519, 535. A liberal application of the property of a lunatic is made to secure every comfort his situation will admit, (6 Ves. 8,) without regard to expectants on estate. 1 Ves. Jr. 297. The power of the chancellor extends to making grants from time to time of the lunatic's estate, anc as this power is derived under the sign-manual, in virtue of the prerogative of the crown, the chancellor, who is usually invested with it, is responsible to the crown alone for the right exercise of it. Per Ld. Hardw., 3 Atk. 635. It is said that since the revolution the king has always granted the surplus profits of the estate of an idiot to some of his family Ridgw. P. C. 51), App. no e, (1.)

when 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.

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 now, to avoid solicitations and the very shadow of undue partiality, a warrant 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."

Charities.-The general controlling power of the court over charities does not extend to a charity regulated by governors under a charter, unless they have also the management of the revenues and abuse their trust; which will not be presumed, but must be apparent and made out by evidence. 2 Ves. Jr. 42. The internal management of a charity is the exclusive subject of visitorial jurisdiction; but under a trust as to the revenue, abuse by misapplication is controlled in chancery. 2 Ves. & B. 134.

Executors.-Where an executor has an express legacy, the court of chancery looks upor him as a trustee with regard to the surplus, and will make him account, though the spiri. tual court has no such power. 1 P. Wms. 7. And where an executor, who 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. Abr. 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 shown to lands: a bond-creditor may if he please proceed immediately against the heir 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 lands 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 broken 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. 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. CHITTY.

2

By stat. 9 Geo. IV. c. 41, s. 41, all persons wheresoever in England (not keeping acensed houses, and not being relatives, or a committee appointed by the lord chancellor) receiving into their exclusive care and maintenance any insane person or persons, or represented or alleged to be insane, are required, under pain of misdemeanour, to have a certificate of insanity, an order for reception of every such person so received after 1st of August, 1828, and to transmit copies thereof within five days to the office of metropolitan commissioners in lunacy, to be marked "private return," and also forthwith to give notice of the death or removal of any such person.

And by s. 36 of the same statute, the persons by whose authority any patient shall be delivered into the care of the keeper of any licensed house for the reception of the insane, are, under like pain, required in person, or by some other person appointed in writing under hand and seal, to visit such person once at least every six months during

3. The king, as parens patriæ, 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 in formant, (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 Fliz. c 4, authority is given to the lord chancellor or lord keeper, and to the *428] chancellor of the duchy of Lancaster, respectively, to grant *commis 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)

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 determined in the court of exchequer, 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

*429]

() Duke's Char. Uses, 62, 128. Corporation of Burford vs. Lenthal, Canc. 9 May, 1743. (^) 2 Vern. 118.

(1) Huggins vs. York Buildings' Company, Cane. 24 Oct 1740. Reeve vs. Attorney-General, Canc. 27 Nov. 1741. Lightboun us. Attorney-General, Canc. 2 May, 1743.

his confinement, and to enter, in the journal kept at such houses for registering the visits of the commissioners, the date of such visit.-CHITTY.

The proceedings of the court of chancery in the exercise of this branch of its jurisdiction are now regulated by the statute 16 & 17 Vict. c. 70, called “The Lunacy Regulation Act, 1853."-KERR.

The latest and 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.—KERR.

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.

But, by stat. 1 & 2 W. IV. c. 56, this jurisdiction was transferred to the court of bankruptcy. STEWART.

Where the rights of the crown are concerned, if they extend only to the superintendence of a public trust, as in the case of a charity, the king's attorney-general may be made a party to sustain those rights; and, in other cases where the crown is not in possession, a title vested in it is not impeached, and its rights only incidentally concerned. It has generally been considered that the king's attorney-general may be made a party in respect of those rights; and the practice has been accordingly. 1 P. Wms. 445. But where the crown is in possession, or any title is vested in it which the suit seeks to divest, or its rights are the immediate and sole object of the suit, the application must be to the king, by petition of right, (Reeve vs. Attorney-General, mentioned in Penn vs. Lord Balumore, 1 Ves. 445, 446,) upon which, however, the crown may refer it to the chancellor to do right, and may direct that the attorney-general shall be made a party to a suit for that purpose. The queen has also the same prerogative. 2 Roll. Abr. 213. Mitf. Treat. on Pleadings in Chai cery -CHRISTIAN.

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 most 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 erroneous, or erroneous to a certain degree. [*430

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 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; 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 feodal 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. 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. In 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, [*431 be may 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

Book i. introd. 2, 3, ad calc.

Lord Kaims, Princ. of Equity, 44.

See book ii. ch. 23. p. 378.

Ibid. ch. 15, pages 243, 244; ch. 23 p. 37′′.
'bid. ch 14, p. 208.

(P) Ibid. p. 227.

(9) See page 300.

() Ff. 40. 9, 12.

(*) Lord Kaims, Princ. of Equity, 177.