C refulted to the king in his court of chancery, together with the general protection of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one (1): and, from all proccedings 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 fuit be commenced against him; a power which is incident to the jurifdiction of every court of justiced: but when the interest of a minor comes before the court judicially, in the progress of a caufe, or upon a bill for that purpose filed, either tribunal indifcriminately 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 cafe; but now, to avoid folicitations and the very fhadow of undue partiality, a warrant is iffued by the king under his royal fign manual to the chancellor or keeper of his feal, to perform this office for him: and, if he acts improperly in granting fuch cuftodies, the complaint must be made to the king himself in council' (2). But the previous proceedings on the commiffion, to inquire whether or no the party be an idiot or a lunatic, are on the law-fide of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular courfe of law. 3. THE king, as parens patriae, has the general fuperintendence of all charities; which he exerc fes by the keeper of his confcience, the chancellor. And therefore, whenever it < F. N. B. 27. d Cro. Jac. 641. 2 Lev. 163. T. Jones. 90. e See book I. ch. 8. f3 P. Wms. 108. See Reg. Br. 267, (1) And the court of chancery will appoint a guardian to an infant, and allow him a fuitable maintenance, on a petition, though there is no caufe depending. Ex parte Kant, 3 Bro. Chan. Rep. 83. Ex parte Salter, ibid. 500. Ex parte Whitfield. 2 dik. 315. (2) See 1 vol. 303. n. 5. is neceffary, the attorney-general, at the relation of fome informant, (who is ufually called the relator) files ex officio an information in the court of chancery to have the charity properly established. By ftatute alfo 43 Eliz. c. 4. authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lancafter, refpectively, to grant commissions under their feveral feals, to inquire into any abufes [428] of charitable donations, and rectify the fame by decree; which may be reviewed in the refpective 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 commiffion 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 refpondent in his answer to the exceptions may allege what new matter he pleases; upon which they go to proof, and examine witnefies in writing upon all the matters in iffue: and the court may decree the refpondent to pay all the cofts, though no such authority is given by the ftatute. And, as it is thus confidered as an original caufe throughout, an appeal lies of courfe from the chancellor's decree to the house of peers, notwithstanding any loose opinions to the contrary. 4. By the feveral ftatutes relating to bankrupts, a fummary jurifdiction is given to the chancellor, in many matters confequential or previous to the commiffions thereby directed to be iffued; from which the ftatutes give no appeal (3). On the other hand, the jurifdiction of the court of chancery doth not extend to fome caufes, wherein relief may be g Duke's char. uses. 62. 128. Corporation of Burford v. Lenthal. Cane. 9 May, 1743. (3) The fummary jurifdiction of the court of equity, in cafes. of bankrupt, must be perfonally exercifed by the chancellor, lordkeeper, or the lords commiffioners of the great feal. z Woodd. 400. Hh 4 had had in the exchequer. No information can be brought, in chancery, for fuch mistaken charities, as are given to the king by the ftatutes for fuppreffing fuperftitious ufes. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree difpofing of or affecting his property; not even in cafes where he is a royal trustee (4). Such caufes must be determined in the court of exchequer, as a court of revenue; which alone has power [429] over the king's treafure, and the officers employed in it's ma nagement unlefs 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, confifts of both a court of law and a court of equity. In all other matters, what is faid 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 arifes from the different conftitution of their offiLightboun v. Attorney-general. Canc 2 May, 1743. i Huggins v. Yorkbuildings Company. Canc. 24 C&. 1740. Reeve v. Attorney-general. Canc. 27 Nov. 1741. (4) "Where the rights of the crown are concerned, if they "extend only to the fuperintendance of a public truft, as in the "cafe of a charity, the king's attorney-general may be made a "party to fuftain thofe rights; and in other cafes where the "crown is not in poffeffion, a title vefted in it is not impeached, "and it's rights only incidentally concerned; it has generally been "confidered, that the king's attorney-general may be made a " party in refpect of thofe rights, and the practice has been ac"cordingly. (1 P. Wms. 445.) But where the crown is in poffeffion, or any title is vefted in it which the fuit feeks to di"veft, or it's rights are the immediate and fole object of the fuit, "the application must be to the king, by petition of right, (Reeve against Attorney-general, mentioned in Penny, lord Baltimore, "1 Vef. 445, 446.) upon which, however, the crown may refer "it to the chancellor to do right, and may direct that the attorneygeneral shall be made a party to a fuit for that purpose. The queen has alfo the fame prerogative. (2 Roll. Abr. 213.)” Mitf. Treat. on Pleadings in Chan. cers: cers: or, if they differ in any thing more effential, 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 comprehenfive, view of the general nature of equity, as now understood and practifed in our several courts of judicature. I have formerly touched upon it, but imperfe&ly: it deferves a more complete explication. Yet as nothing is hitherto extant, that can give a ftranger a tolerable idea of the courts of equity fubfifting in England, as diftinguished from the courts of law, the compiler of these obfervations cannot but attempt it with diffidence: thofe who know them beft, are too much employed to find time to write; and those, who have attended but little in those courts, must be often at a lofs for materials. EQUITY then, in it's true and genuine meaning, is the foul and spirit of all law: pofitive law is conftrued, and rational law is made, by it. In this, equity is fynonymous to justice; in that, to the true fenfe and found interpretation of the rule. But the very terms of a court of equity, and a court of law, as contrafted 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 jurifdictions, by fetting law and equity in oppofition to each other, will be found either totally erro- [430] neous, or erroneous to a certain degree. 1. THUS in the firft place it is faid', that it is the bufinefs of a court of equity in England to abate the rigour of the common law. But no fuch power is contended for. Hard was the cafe 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: yet a court of equity had no power to interpofe. Hard is the common law ftill fubfifting, that land devifed, or defcending to the heir,. See vol. II. sh. 23. pag. 378. 3. k Vol. I. introd. § 2 & ad calc. Lord Kayms. princ. of equit. 44. fhall fhall not be liable to fimple contract debts of the ancestor or devifor ", although the money was laid out in purchafing the very land; and that the father fhall never immediately fucceed as heir to the real estate of the fon°: but a court of equity can give no relief; though in both these instances the artificial reafon of the law, arifing from feodal principles, has long ago entirely ceased. The like may be observed of the defcent of lands to a remote relation of the whole blood, or even their efcheat to the lord, in preference to the owner's half-brother P; and of the total stop to all justice, by caufing the parol to demur 9, whenever an infant is fued as heir or is party to a real action. In all fuch cafes of pofitive law, the courts of equity, as well as the courts of law, must say with Ulpian', "hoc quidem per quam durum eft, fed ita lex fcripta eft.” 2. Ir is faids, that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But fo alfo does a court of law. Both, for inftance, are equally bound, and equally profess, to interpret ftatutes according to the true intent of the legiflature. In general laws all cafes cannot be forefeen; or, if forefeen, cannot be expreffed: fome will arife that will fall within the [431] meaning, though not within the words, of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not exprefsly excepted. These cafes, thus out of the letter, are often faid to be within the equity, of an act of parliament; and fo cafes within the letter are frequently out of the equity. Here by equity, we mean nothing but the found interpretation of the law; though the words of the law itfelf may be too general, too special, or otherwife inaccurate or defective. These then are the cafes which, as Grotius fays, "lex non exacte definit, fed arbitrio «boni viri permittit," in order to find out the true sense and meaning of the lawgiver, from every other topic of conftruction. But there is not a fingle rule of interpreting laws, See vol. II. ch. 15. pag. 243, 244. ch. 23. pag. 377. Ibid. ch. 14. pag. 208. p'Ibid. pag. 227. 8 4 See pag. 300. T Ff 40. 9. 12. s Lord Kayms. princ. of equit. 177de aequitate. §3. whether |