1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in feudal view; but *resulted to the king in his court of chancery [ *427] every together with the general protection (c) of all other infants in the king (c) F. N. B. 27 order a proper settlement to be made, or reform an improper one, unless the ward consents t the settlement either in court or under a commission. 2 Sim. and 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. V. SPECIFIC PERFORMANCE OF AGREEMENTS. The jurisdiction of the courts of equity, ir 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 id. 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. Cont. 87. That which is agreed to be done is in equity considered as already done: 2 P. W. 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. Id. 233. Personalty. In agreements, with penalties for the breach of them, it is necessary to dis tinguish 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. Cont. c. 17. Thus, as the principle whereon a specific performance of agreemeut 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 memoranduin 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 goverment stock, where it prays for the delivery of the certificates which give the legal title to stock. 1 Sim. and 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 dying (1 Sim. and Stu. 74) but not without great caution. See 1 P. Wms. 181. VI. 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 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. Ch. 446. 1. 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 prerogativa regis (17 Edw. II, c. 9 and 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. J. 297. The power of the chancellor extends to making grants from time to time of the lunatic's estate, and 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. 519, App. note 1. 2. 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. Jun. 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. and B. 134, dom. When, 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 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. (2) 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 soine 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 (d) Cro. Jac. 641. 2 Lev. 163. T. Jones, 90. (e) See book I, ch. 8. (ƒ) 3 P. Wms. 108. See Reg. Br. 267. 3. 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, 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. Jac. and W. 586. And see, on this subject, ante, book 2, ch. 32. 1 4. 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 favored 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 favor 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.] Upon the general subject of equity jurisdiction, a brief note like the foregoing can give but very imperfect information. The treatises by Mr. Spence on the equitable jurisdiction, and by Adams and Story on equity jurisprudence, are very full and satisfactory. Some of the United States have no distinct equity system, and the relief formerly given in equity in some cases cannot be had; in others, equity principles are administered, but under the same forms and by the same courts as common-law principles are; and in others still, the equity system is fully retained, but is administered under equitable forms by the same judges who hold the courts of common law. This last is the case with the courts of the federal government. (2) This jurisdiction is now exercised under and regulated by statutes 16 and 17 Vic. c. 70, and 30 and 31 Vic. c. 87, and the lords justices may exercise it. [ *428 ] chancellor of the duchy of Lancaster, respectively, to grant commissions 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. 11s. (i) Huggins v. York Buildings' Company, Canc. 24 Oct. 1740. Reere v. Attorney-General, Canc. 27 Nov. 1741. Lightbourn v. Attorney General, Canc. 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. case. 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] 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 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, (2) Lord Kaims, Princ. of Equity, 44. (t) De æquitate, 2 3. (m) See book II, ch. 23, p. 378. (0) Ibid, ch. 14. p. 208. (u) 1 Roll. Abr. 374. 4 Inst. 84. 10 Mod. 1. (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 s. 10.1 and equally adverted to, in a court of law and some frauds are cognizable only there: as fraud in containing 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 (w) 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." (z) 2 P. Wms. 610. See book II, p. 337. (a) Salk. 154. (b) 2 Vern. 289. 316. 3 Atk. 520. (c) See the case of Foster and Munt (1 Vern. 473) with regard to the undisposed residuum of personal estates. (d) Quæ in summis itaque tribunalibus multi e legum canone decernunt judices, solus (si res exigerit) cohibeat cancellarius ex arbitrio; nec aliter decretis tenetur suæ curiæ vel sui ipsius, quin, elucente nova ratione recognoscat quæ voluerit, mutet et delent prout sua videbitur prudentiæ. Gloss. 108. (e) See pages 54. 55. (f) Archeion. 71, 72, 73. (g) U bi supra. (h) De Augm. Scient. l. 8, c. 3. (8) [This anomaly no longer exists. See statute 3 and 4 Wm. IV, c. 105.] |