guished in every feodal view; but *resulted to the king in his court of [*427 chancery, together with the general protection(c) 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; 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)(2) 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. (3) 3. The king, as parens patriæ, (4) has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. (5) And therefore whenever it is necessary, the attorney-general, at the relation of some informant, (who is usually called the relator,) files ex officio (6) 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 chancellor of the duchy of Lancaster, respectively, to grant commissions under their several [*428 seals, to inquire into any abuses of charitable donations, and rectify (c) F. N. B. 27. (d) Cro. Jac. 641. 2 Lev. 163. T. Jones, 90. (e) See book i. ch. 8. New York, South Carolina, Ohio, Indiana, Minnesota, Nebraska, Wisconsin and California, the distinction between these two kinds of courts is totally abolished. (2) Clark v. Gilmantien, 12 N. H. 515, 517 (1845). (3) By stat. 9 Geo. IV. c 41, s. 41, all persons wheresoever in England (not keeping licensed houses, and not being relatives, or a committee appointed by the lord chancellor) receiving into their exclusive care and maintenance any insane person or persons, or represented or alleged to be insane, are required, under pain of misdemeanor, to have a certificate of insanity, an order for reception of every such person so received after Ist of August, 1828, and to transmit copies thereof within five days to the office of metropolitan commissioners in lunacy, to be marked "private return," and also forthwith to give notice of the death or removal of any such person. And by s. 36 of the same statute, the persons by whose authority any patient shall be delivered into the care of the keeper of any licensed house for the reception of the insane, are, under like pain, required in person, or by some other person appointed in writing, under hand and seal, to visit such person once at least every six months during his confinement, and to enter, in the journal kept at such houses for registering the visits of the commissioners, the date of such visit.-CHITTY. The proceedings of the court of chancery in the exercise of this branch of its jurisdiction are now regulated by the statute 16 & 17 Vict. c. 70, called "The Lunacy Regulation Act, 1853."-KERR. (4) [Parent of his country.] (5) Here, the commonwealth being substituted for the king, as parens patriæ, should exercise the like superintendence and control." Chambers v. Educational Soc., 1 B. Mon. 215, 219 (Ky.) 1841). In England, the sovereign may sustain the character of a trustee; and in this country a state may be a trustee. Boone's Law of Real Property, 164, p. 199 (1883). (6) [Officially.] the same by decree;(7) 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) (8) 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. (9) 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)(10) Such causes must be determined in the court of exchequer, as a court of revenue; which alone has *429] power *over the king's treasury, and the officers employed in its management: unless where it properly belongs to the duchy court of (g) Duke's Char. Uses, 62, 128. Corporation of Burford v. Lenthal, Canc. 9 May, 1743. (h) 2 Vern. 118. (i) Huggins v. York Buildings' Company, Canc. 24 Oct. 1740. Reeve v. Attorney-General, Canc. 27 Nov. 1741. Lightboun v. Attorney-General, Canc. 2 May, 1743. (7) This jurisdiction exercised by the chancellor is personal in him, and not exercised in virtue of his ordinary or extraordinary jurisdiction in chancery. Green v. Allen, 5 Humph. 170, 202 (Tenn. 1844). (8) See McCord v. Ochiltree, 8 Blackf. 15, 17 (Ind. 1846). When the court of wards was abolished (first by Cromwell's parliament and afterwards by the 12 Car. II.) that portion of its jurisdiction which was founded on the prerogative of the king in the supervision of charities, the care of lunatics, infants and idiots, returned to the chancellor as an original jurisdiction which had been merely suspended. Magill v. Brown, I Bright, 403 (Pa. 1851). The latest and 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. -KERR. "We can perceive no good reason why the same proceedings may not be instituted here for the enforcement of trusts or the judicial contract of charitable corporations, in their management of trust funds." Chambers v. Educational Soc. 1 B. Mon. 215, 219, 220 (Ky. 1841). (9) The summary jurisdiction of the court of equity in cases of bankruptcy must be personally exercised by the chancellor, lord keeper, or the lords commissioners of the great seal. 2 Woodd. 400.-CHRISTIAN. But, by stat. 1 & 2 W. IV. c. 56, this jurisdiction was transferred to the court of bankruptcy. STEWART. (10) Where the rights of the crown are concerned, if they extend only to the superintendence of a public trust, as in the case 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 possession, a title vested in it is not impeached, and its 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 accordingly. I P. Wms. 445. But where the crown is in possession, or any title is vested in it which the suit seeks to divest, or its rights are the immediate and sole object of the suit, the application must be to the 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 most 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 attended but little in those courts must be often at a loss for materials. 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. (11) 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 [*430 erroneous to a certain 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 rigor 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) (12) although the money was laid out in purchasing the very land; 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 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 causing the parol to demur(q)(13) whenever an infant is sued as heir, or (k) Book i. introd. 2 2, 3, ad calc. (1) Lord Kaims, Princ. of Equity, 44. (m) See book ii. ch. 23, p. 378. (n) Ibid. ch. 15, pages 243, 244; ch. 23, p. 377. (0) Ibid. ch. 14, p. 208. (9) See page 300. king, by petition of right, (Reeve v. Attorney-General, mentioned in Penn v. Lord Baltimore, I Ves. 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. Mitf. Treat. on Pleadings in Chancery.-CHRISTIAN. (11) Barbour's Rights of Pers. and Prop. 51. Bowyer's Comm. on Eng. Const. 20. Edwards on Bailments. This rule is not now in use. (12) In New York, a statute made the real estate of a decedent liable for his debts and gave the probate court power to direct the sale thereof for their payment. (L. 1786, c. 27). Read v. Patterson, 134 N. Y. (89 Sickels) 128, 131 (1892). (13) Now abolished. is party to a real action. (14) 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."(15) 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. (16) In general law all cases cannot be foreseen, or, if foreseen, cannot be *431] 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 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;(17) 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 permittit;" (18) 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:(19) 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 endeavors to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense in a single tittle. (20) 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, and equally adverted to, in a court of law; and some frauds are cognizable only there: (21) as fraud in obtaining 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, *432] created by the limitation of a second use, was forced into *the courts of equity in the manner formerly mentioned; (w) (22) and this species of trust, 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;(23) (r) F. 40, 9, 12. (a) Lord Kaims, Princ. of Equity, 177. (t) De æquitate, & 3. (u) 1 Roll. Abr. 374. 4 Inst. 84, 10. Mod. 1. (14) Tessier v. Wyse, 3 Bland Ch. 28, 51 (Md. 1830). (15) ["This indeed is very hard, but such is the written law."] (16) Where a statute has made provision for all the circumstances of a particular case, no relief in equity can be afforded in such case, although the provisions of the statute may conflict with the notions of natural justice and equity entertained by a court of chancery. Glenn v. Fowler, 8 G. & J. 340, 347 (1 Md. 1836). (17) Beall v. Surv'g Ex'rs of Fox, 4 Ga. 404, 425 (1848). (18) ["The law does not exactly define (this), but leaves it to the judgment of an honest man."] (19) Metcalf on Contracts, 316 (Heard's ed.). (20) Bishop on Stat. Crimes, ? 190, p. 180, note 4 (2 ed. 1883). (21) Phillips v. Potter, 7 R. I. 289, 296, 297 (1862). (22) 1 Barbour's Rights Pers. and Prop. 364. (23) Aycinena v. Peries, 6 W. & S. 243, 257 (Pa. 1843). Halle v. Nat. Park Bank of New York, 140 Ill. 413, 422 (1892). See Story on Bailments (8 note to p. 5, 9 ed. 1878). 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)(24) founded on the circumstance of every particular case. Whereas the system of our courts of equity is a labored, 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. (25) Thus, the refusing a wife her dower in a trust-estate, (z)(26) 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 very [*433 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, (d) Coke, (e) Lambard, (f) and Selden, (g) and even the great Bacon (h) himself. (r) 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 and 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. 640. See book ii. page 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. But this was in the infancy of our (d) Quæ in summis tribunalibus multi a legum canone decernunt judices, solus (si res exigerit) cohibet cancellarius ex arbitrio; nec aliter decretis tenetur suæ curiæ vel sui ipsius, quin, elucente nova ratione, recognoscat quæ voluerit, mutet et deleat prout suæ videbitur prudentiæ. [Those decisions which many judges in the highest tribunals make according to the rules of law, the chancellor alone (if the case require it) can restrain according to his pleasure; nor is he so bound by the decrees of his court, or those of himself, but, a new reason appearing, he may revise whatever he pleases, may alter and reverse as he shall think .] Gloss. 108. (e) See pages 54, 55. (f) Archeion, 71, 72, 73. (h) De Augm. Scien. l. 8, c. 3. (24) State v. Aiken, 42 S. C. 222, 246 (1894). (25) Dickerman v. Burgess, 20 Ill. 267, 276 (1858). Even those rules of law which, in their nature, are technical and positive cannot be disregarded by a court of equity. Marshall v. Craig, 1 Bibb. 394, 395 (Ky. 1812). There are two cases in which equity has, in the construction of trust estates, deviated from the rules of law; that of dower, which is universally allowed to be wrong; and that of escheat, which has not met with any approbation. 2 Greenleaf's Cruise on Real Property, 272 n. (2 ed. 1856). (26) By statute 3 & 4 Wm. 4, c. 105, a widow is entitled to dower in the equitable estate of her deceased husband. |