first made, (a) and which was subsequently followed in the other cases cited, supposed to be similar, might be maintained upon principles which were wholly inapplible to the case then before them, and therefore ought not to be regarded as a precedent. § 693. We cannot review all the cases on this point, as the limits of our work will not admit of it. From the cases cited on the question under consideration, and which have elicited much able discussion in the courts of several of the states of the Union, we think we may safely declare, as in accordance with the weight of authority, the following propositions: 1. That where the act itself, and the proceedings which are had under it, do not vest in the subscriber a vested right in the stock, so as to make him a member of the corporation, with a right to enforce his corporate rights as against the corporation itself; in such cases the remedy prescribed by the statute is not cumulative, but is the only remedy to be pursued. 2. That where the act itself, ex vi termini, by the bare act of subscription, makes the party subscribing one of the corporators, and vests absolutely in him the shares subscribed for, subject to payment therefor; that in such cases it becomes an executed contract, upon which a common law remedy might be enforced. That in such cases the statute remedy may be regarded as merely cumulative, and the corporation in such cases has an election either to pursue the common law remedy or that given by the statute. (a) 6 Mass. R. 40. CHAPTER XVI. OF EQUITABLE CONSTRUCTION. § 694. THE design of the present chapter is, to consider the nature and illustrate the principles of the doctrine of equitable construction, define the limits to its application, the exceptions and qualifications of the rule in the construction of statutes. § 695. The word equity, as used among judicial writers, has a two-fold signification. It is taken at large, or in general, for that natural justice which distributes right to all men indiscriminately, without regard to persons, or it has a more contracted signification, to wit, that justice which takes off from the rigor and severity of the written law, supplying by fair and reasonable interpretation what the lawgiver must be understood to have intended himself; but either was not able, or did not think proper to express. It is with the latter definition that our treatise stands connected, and not with the former. It may be said in general, that equitable construction consists in deciding according to the will or supposed intention of the lawgiver, in matters which he was not able or willing to express, or in restraining the words of the law, where it is clear that they were not intended to extend to a particular act or thing. This rule presupposes that all human laws may be defective, either against the design or inclination of the law-maker, or without his consent. By the former we are to understand, things which the legislature would have defined and ascertained, had it known of their existence; by the latter, those things which the legislature, by reason of the universality of the law, for want of time, or precision, could not descend to a particular enumeration of them.(a) § 696. By equitable construction, as anciently understood, was meant a judicial interpretation of a statute which, presupposing the legislature to have intended what is right and just, pursues and effectuates that intent. The Aristotelian definition of equity is: "The nature of equity is, the correction of the law where it is defective by reason of its universality."(b) This definition seems to meet with the approbation of Puffendorf,(c) and is adopted by Grotius.(d) Wooddeson considers this thought as very sagacious, worthy of its great author, and gives us a clear elucidation of it. According to this author, by universality is meant, that the law deals in general expressions, at least so far general, as to include some cases within the words which are not within the reason or the spirit of its coercion, and to omit other cases which required the like provisional institution. For this reason, it is impossible for any premeditation to discover, or ever so voluminous a code to express that endless series of complicated occurrences which may vary the moral fitness of applying positive ordinances. In all such instances the law, or rather the words of it, are defective, that is, in the original language of the Aristotelian definition, "," it leaves out ελλείπει,” something which it is the province of equity to supply. Under such circumstances, the judge should inquire what the lawgiver, as an upright man, would have decreed, if the very case then in question had fallen within his foresight and contemplation. Grotius in his treatise (a) Taylor's Civil Law, 91, 92. (6) Arist Eth. Nicom. lib. 5, c. 10. "De Equitate," thus enforces the necessity of thus recurring to equitable interpretation: " Cum enim inæqualibus," says he, “idem non possit esse æquale res autem sæpe sunt inæquales, lex vero una semper atque eadem, necessario consequitur, alia virtute opus esse quæ inæqualibus rebus suam cuique æqualitatem præstat unde hæc virtus equitas Latinis, Græcis vero EELKELa dicitur." § 697. Equity, therefore, regarding the intent and not scrupulously fettered by the letter of the law, has to this end a two-fold operation; sometimes abridging the comprehensiveness of the text, and sometimes extending the words so far as to include other cases within parity of reason. An instance of the former kind may be found in one of the earliest English reports. (a) The case was this, an old act of parliament provided that goods rescued from a ship, where there is no legal wrecker, should be delivered by the sheriff to safe custody, in order to their being claimed within a year and a day, yet if the goods are perishable, and the sheriff sells them, retaining their value in their stead, restrictive equity (abridging the comprehensiveness of the text, which happened not to make due provision for perishable commodities,) would lead the mind of the judge to the conclusion that the sheriff retaining their value in their stead, would be acting agreeable to the intention of the lawgiver, inasmuch as he evidently designed the benefit of the trading owner. 698. On the other hand, instances of the latter kind occur in those cases, " Ubi lex est specialis, et ratio ejus generalis, generaliter est accipienda."(b) Thus we find (a) Plow. 465, 466, cited and approved in Threadneedle v. Threadneedle, 1 Freem. 185; 3 Keb. 381. (6) 2 Inst. 43, 83; Beaufage's case, 10 Co. 103, b. ; 2 Inst. 118; Dig. L. b. 10, 27. that two ancient statutes respecting executors, although administrators were not named, were held to extend to administrators; on the ground, that no possible reason could be suggested why they should be exempt from the same provisional regulation. (a) By parity of reasoning, in divers statutes where the word persons is used, it has been held that the word includes corporations, although this is a much larger sense than the word bears in ordinary conversation.(b) § 699. It will be well in this connection to advert to another part of the Aristotelian definition of equity, viz. "the correction of the law." It must be considered, that this "correction" is not by way of control but of exposition. It does not impugn but promotes the meaning of the law. For if the law, understood according to the unquestionable intention of the legislature, has descended to particulars, has described the very subject-matter under consideration, it cannot be said in such a case to be defective, nor in such case is there any room for equitable construction, or any warrant or authority for that kind of judicial redress, although the court may indeed doubt how far the ordinances of a particular statute are consonant to natural equity; yet it by no means follows, that they can with propriety assume, that it ought not to be obeyed, where it is not plainly subversive of some principle of natural justice-of divine or moral obligation; and even then it has been held by some, that it is rather a matter of private conscience, remote from the office of a judicial magistracy, than within the province of the court, which is constituted to declare and not to alter or impugn the law. "Perquam durum est, sed ita lex scrip (a) Hill v. Grange, Plow. 178; Eyston v. Studd, 2 Plow. 467; Hard. 211, 213; 1 Hale P. C. 653, 654; Woodd. Lect. 7, p. 116. (6) Bac. Us. 57; Magdalen College case, 1 Mod. 164. |