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when the interest of a minor comes before the court judicially in the progress of a cause, upon a bill for that purpose filed, either tribunal, indiscriminately, will take care of the property of the infant.
2. Idiots and Lunatics. The king himself used formerly to commit the custody to proper committees in every particular case; but now to avoid solicitations and partiality, a warrant is issued by the king to the chancellor 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. But the previous proceedings on the commission to inquire whether the party be an idiot or 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.
3. Charities. The king, as parens patriae, has the general superintendence of all charities, which power he exercises through the chancellor. Whenever necessary, the attorney general, at the instance of some relative or informant, files, ex officio, an information in the court of chancery, to have the charity established. The chancellor is also empowered to inquire into 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. This is not a proceeding at common law, but is treated as an original cause in the court of equity.
The Evidence.. The evidence below is not written, and the respondent in his answer to the exceptions, may allege what now 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 the costs. It is thus considered an original cause throughout, and an appeal lies, as of course, from the chancellor's decree to the house of peers.
4, 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."
Jurisdiction. The jurisdiction of the court of chancery does not extend to some causes, wherein relief may be had in the exchequer. It has no cognizance of such mistaken charities, wherein relief may be had in the exchequer. 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. Such causes must be determined by 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. In 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 constitutions of their officers.
1 This jurisdiction is now given to the court of bankruptcy in England.
Equity Defined. In its true meaning, equity is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, equity is synonymous with justice, that is, in the true sense of the rule. The terms, courts of equity and courts of law might mislead us, as if one judged without equity, and the other judged without law. Such a distinction is erroneous. DISTINCTION BETWEEN EQUITY AND LAW.
Rigor of the Common Law. (1.) It is said, that it is the business of a court of equity to abate the rigor of the common law. But no such power is contended for.
Hard as a case may be in common law, rigorous and unjust the rule, yet a court of equity has no power to interfere. Thus the law is written.
Interpretation of Statutes. (2.) It is said, 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 profess to interpret statutes according to the true intent of the legislature. Generally all cases cannot be foreseen, or if foreseen, cannot be expressed. Some may 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 to the 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.
Construction of Laws. 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. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used in the
courts both of law and equity; the construction in both must be the same. Each endeavors to fix and adopt the true sense of the law in question ; neither can enlarge, diminish or alter that sense.
Fraud, Accident and Trust. (3.) It has been said, that these are the proper and peculiar objects of a court of equity. But every kind of fraud is equally cognizable in a court of law, and some frauds are cognizable only there. Many accidents are remedied in a court of law, as loss of deeds, mistakes in receipts or accounts, wrong payments, and many other errors, many of which cannot be relieved in a court of equity. A technical trust, created by the limitation of a second use, however, does peculiarly appertain to the equity court. 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, of having undertaken to account for money received to another's use, which is the ground of an action on the case almost as remedial as a bill in equity.
Discretion in Equity Proceedings. (4.) It has been said, that courts of equity are not bound by rules or precedents, but act from the opinion of the judges, founded on the circumstances of every particular case.
Precedents are Followed. Whereas the system in equity courts is a labored, connected system, governed by established rules and bound by precedents, some of which may perhaps be liable to objection. Nay, sometimes a precedent is so strictly followed, that a particular judgment, founded upon special circumstances, gives rise to a general rule.
Mistaken Theories as to Equity. It is a mistake to suppose, that a court of equity is amenable to no law, either common or statute, and assumes the rule of an arbitrary legislator in every particular case. Grotius or Puffendorf, great masters of jurisprudence, would have been as little able to discover the system of a court of equity in England, as the system of a court of law; especially as the notions of the character, power and practice of a court of equity were formerly adopted by our principal lawyers.
Arbitrary Powers of Chancellor. 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, but principally from the narrow and unjust decisions of the courts of law, had usurped such unlimited authority, as has been totally disclaimed by their successors.
Early Decrees of no Weight. The decrees of a court of equity were then rather in the nature of awards, with more probity of intention than knowledge of the subject, founded on no settled principles, and therefore valueless as precedents.
Similarity In Law and Equity. But the systems of jurisprudence in our courts, both of law and equity, are now equally artificirl systems, founded on the same principles of justice and positive law, but varied in the forms and mode of proceeding; the one being originally derived from the feudal customs during the Saxon and Norman judicatures, the other, with equal improvements, form the imperial and pontifical formularies introduced by clerical chancellors.
Simiiar Rules in Law and Equity. The suggestion in every bill, to give jurisdiction in equity is, that the complainant has no adequate remedy at the common law. But no one therefore should conclude, that no case is adjudged in equity, where there might have been relief in law. 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. The measure of substantial justice ought to be the same in both.
Example of Equitable Interference. Bonds, Thus the penalty of a bond, originally contrived to evade the absurdity of a prohibition against taking interest for money, was 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 give judgment, that the interest should he specifically paid. But when afterwards the taking of interest became legal, as the necessary sequence of commerce, their successors still wilfully and technically adhered to the ancient precedents, and refused to consider the payment of principal, interest and costs full satisfaction of the bond. At the same time, liberal men, who sat in the courts of equity, construed the instrument according to its just intent, as merely a security for the loan, as understood by the parties. 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.
Bonds and Mortgages. And the inconvenience and injustice of putting different constructions in different courts upon the same transaction, obliged parliament at length to interfere, and direct that in the cases of bonds and mortgages, what had long been the practice in courts of equity, should also be followed in the future in courts of law.
Provisions in Agreements. Neither a court of equity nor of law can vary men's wills or agreements, or make such documents for them. One court ought not to extend, and the other abridge, a lawful provision inserted by the parties. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages, 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 court pretends to control or change, a lawful stipulation.
Law and Equity Rules Harmonious. The rules of decision in both courts are equally pertinent to the subjects of which they take cognizance. Where the subject matter is such as requires to be equitably determined, 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 time honored precedents. 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 privileged cases of ambassadors, etc. In mercantile transactions, they follow the marine law, and argue from the usages in maritime countries. When they exercise a concurrent jurisdiction, they both follow the law of the proper forum; in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject. Where a foreign municipal law is involved in the case, they both seek information from the rule of the country, and decide accordingly.
In what they Differ. In what does the essential difference between the courts of law and equity consist? Principally in the distinct modes of administering justice adopted by each; in the mode of proof, the mode of trial, and the mode of relief. Upon these and partly upon two other accidental grounds of jurisdic