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resulted 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 jurisdiction of every court of justiced: 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 o 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' (2). But the previous proceedings on the commission, 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 erroncous) by writ of crror in the regular course of law,
3. The king, as parens patriae, has the general superintendence of all charities; which he exerc ses by the keeper of his conscience, the chancellor. And therefore, whenever it CF. N. B. 27.
e See book I. ch. 8, o Cro. Jac. 647. 2 Lev. 163. T. 3 P. Wms. 108. See Reg. Br. 267. Jones. 9o.
(1) And the court of chancery will appoint a guardian to an in. fant, and allo:v him a suitable maintenance, on a petition, though there is no cause depending. Ex parte Kini, 3 Bre. Chan. Rep. 83. Ex parte Salter, ibid. 5oo. Ex parte I bigfield. 2 dik. 315.
(2) See i vol. 303. n. 5.
is necessary, the attorney-general, at the relation of some informant, (who is usually called the relator ) files ex officio an information in the court of chancery to have the charity properly cstablished. By statute also 43 Eliz. C. 4. authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lancaster, respectively, to grant commillions under their several seals, to inquire into any abuses ( 428 ) 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 proceeds! ing 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 5, 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 (3).
On the other hand, the jurisdiction of the court of chancery doth not extend to some causes, wherein relief may be
& Duke's char. uses. 62. 128. Cor. 9 May, 1743 poration of Burford v. Lenthal. Cunc. h 2 Vern. 18.
(3) The summary jurisdiction of the court of equity, in cases of bankrupt, must be personaily exercised by the chancellor, Iordkeeper, or the lords commisoners of the great seal. 2 Woodd. 400.
H 5 4
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 trusteei (4). Such causes must be determined in the court of
exchequer, as a court of revenue ; which alone has power [ 429 ) over the king's treasure, and the officers employed in it's ma
nagement: 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 offi
i Huggins v. Yorkbuildings Compa. Lightboun v. Attorney-general. Cance ny. Canc. 24 Oct. 1740. Reeve v. At- 2 May, 174-3. torncy-gcncral. Canc. 27 Nov. 1741.
(4) “ Where the rights of the crown are concerned, if they “ extend only to the superintendance of a public trust, as in the " care 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 poffeffion, a title vested in it is not impeached, " and it's 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 ac“ cordingly. (1 P. 175. 445.) But where the crown is in “ poffefsion, or any title is vested in it which the suit seeks to di. “ veit, or it's righes are the immediate and sole object of the suit, “ the application must be to the king, by petition of right, (Reeve " againit Attorney-general, mentioned in Penn v, lord Baltimore, " i Vel. 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.)" Mill. Treat.on Pleadirgs in Cbar.
cers: k Vol. I. introd. $2& 3. ad calc. See vol. II. sh. 23. pag. 378. # Lord Kayms. princ. of equit. 44.
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 comprehensive, 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 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 subfisting in England, as distinguished from the courts of law, the compiler of these observations cannot but attempt it with diffidence: those 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 loss for materials.
EQUITY then, in it's true and genuine meaning, is the foul 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 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 jurisdictions, by setting law and equity inz opposition to each other, will be found either totally erro- I 4301 neous, or erroneous to a certain degree.
5. Thus in the first place it is said', 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 ftill sublifting, that land devised, or descending to the heir,
shall not be liable to simple contract debts of the ancestor or devisor", although the money was laid out in purchasing the very land; and that the father shall never immediately fucceed as heir to the real estate of the sono: 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 caufing the parol to demur 9, 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', " hoc quidem per quam durum eft, fed ita lex scripta eft."
2. It 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 so also does a court of law. Both, for inftance, are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature. In general laws all cases cannot be foreseen; or, if foreseen, can
not be expressed: some will arise 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 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 found 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' says, “ 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 construction. But there is not a single rule of interpreting laws,
* See vol. II. ch. 15. pag. 243, 244. Ch. 2;. pag. 377.
liit. ch. 14. pag. 203, pltid. pag. 2270
4 See pag. 300. I Ff 40.9. 12. .: Lord K ay ms. princ. of equit. 177. i de aequitate. $ 3.