[vised away his real estate. Rigorous and unjust the rule which put the devisee in a better position than the heir(d). Yet a court of equity had no power to interpose.] Hard also were the rules of the common law (so lately subsisting), [that land descended or devised should not be liable to the simple contract debts of the ancestor or devisor (e) --although the money was laid out in purchasing the very land: that the father should never immediately succeed as heir to the real estate of his son (f)] and that lands should descend [to a remote relation of the whole blood, (or even escheat to the lord,)-in preference to the owner's half-brother (g).] And yet no relief from any of these severities, though the artificial reasons for them, arising from feudal principles, had long ago entirely ceased,could ever be afforded by a court of equity; and it is to the legislature alone, that we owe our deliverance from them (h). [In all such cases of positive law, the courts of equity, as well as the courts of law, must say with Ulpian, "Hoc quidem perquam durum est, sed ita lex scripta est" (i).] 2. Again: 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 (k). 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. In general law, all cases cannot be foreseen; or, if foreseen, cannot be expressed: some will arise [that will fall within the meaning, though not within the words of the legislature; and others, which may fall within the letter, may be contrary to its meaning, though not expressly excepted.] In reference to such considerations as these, a case, (as we elsewhere had occasion to remark,) is sometimes said to fall within the equity,-or, at other times, to be out of the equity,-of an act of parliament (1). But [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. These, then, are the cases which, as Grotius says, " lex non exactè definit, sed arbitrio boni viri permittit (m)," 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; 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 endeavours to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter that sense, in a single tittle.] 3. But, [it hath been said, that fraud, and accident, and trust, are the proper and peculiar objects of a court of equity (n). But every kind of fraud is equally cognizable, and equally adverted to, in a court of law.] In like manner [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 the accident of [a devise ill executed,] or a power of leasing omitted in a family settlement. [A technical trust, indeed, created in land by the limitation of a second use, was (1) Vide sup. vol. 1. p. 75. (m) De Equit. s. 3. (n) 1 Roll. Abr. 374; 4 Inst. VOL. IV. 84; Earl of Bath v. Sherwin, 10 Mod. 1. D [forced into the courts of equity in the manner formerly mentioned (o); and this species of trust has ever since remained as a kind of peculium in those courts; which also exercise, in general, an exclusive jurisdiction over trusts of personal property. But there are some trusts which are cognizable in a court of law, as deposits and all manner of bailments (p); and especially that implied contract (so highly beneficial and useful) of having undertaken to account for money received to another's use. 4. Once more: it hath been said that a court of equity is not bound by rules or precedents; but acts from the opinion of the judge, founded on the circumstances of every particular case (q); whereas, in truth, the system of our courts of equity is a laboured 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. Thus the refusing a wife her dower in a trust estate, and yet allowing the husband his curtesy (r);] —which was formerly the rule in equity, though such estate is now made subject by statute to the former as well as to the latter incident (s);-and [the distinguishing between a mortgage at five per cent., with a clause of 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 conscien (0) Vide sup. vol. 1. p. 375. 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." (r) Vide sup. vol. I. p. 380; and see Milner v. Colmer, 2 P. Wms. 640. (s) 3 & 4 Will. 4, c. 105. [tious, the latter an unrighteous bargain (t):-both these and other cases that might be instanced, are plainly rules of positive law; which have been supported only by the reverence shown, (and generally very properly shown,) to a series of former determinations, in order that the rule of property may be uniform and steady. Nay, sometimes a precedent is so strictly followed in the courts of equity, that a particular judgment, founded upon special circumstances, gives rise to a general rule (u).] It is true that the notion just mentioned, of the character, power and practice of a court of equity, was [formerly adopted and propagated (though not with approbation of the thing), by our principal antiquaries and lawyers, by Spelman, Coke, Lambard and Selden, and even the great Bacon himself(x). 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 and lust of power (encouraged by the arbitrary principles of the age they lived in), but principally from the narrow and unjust decisions of the courts of law,-had arrogated to themselves such unlimited authority, as hath been totally disclaimed by their successors,] since the close of the seventeenth century. [The decrees of a court of equity, were then rather in the nature of awards, formed on the sudden, pro re nata, with more probity of intention than knowledge of the subject, founded on no settled principles, as being never designed and therefore never used as precedents.] But the systems of jurisprudence in our courts both of law and equity, are now equally fixed or positive systems; though [varied by different usages in the forms and mode of their proceedings; the one being originally derived, the undisposed residuum of personal (t) See Holles v. Wyse, 2 Vern. 289; Strode v. Parker, ibid. 316; Nicholls v. Maynard, 3 Atk. 520. (u) See the case of Foster and Munt, 1 Vern. 473, with regard to estates. (x) See Archeion, 71, 72, 73; De Augm. Scient. l. 8, c. 3; Table Talk, tit. Equity; Gloss. 108. [(though much reformed and improved,) from the feudal customs as they prevailed in different ages in the Saxon and Norman judicatures (y); the other, (but with equal improvements,) from the imperial and pontifical formularies introduced by their clerical chancellors.] Subject to this difference in the form of procedure, these systems are also in strict accordance with each other, as to the principles on which they proceed; the maxim generally applicable to the subject being, that equity follows the law. Some few instances indeed exist,-where a manifestly harsh and unreasonable rule having been maintained in the common law courts, owing to a want of proper liberality and expansion in the views of the judges, relief has been afforded from it in the courts of equity. [Thus the penalty of a bond, originally contrived to evade the absurdity of those monkish constitutions which prohibited taking interest for money, was therefore very 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, as the law then stood, give judgment that the interest should be specifically paid. But when afterwards the taking of interest became legal, as the necessary companion of commerce (z),-nay, after the statute of 37 Hen. VIII. c. 9, had declared the debt or loan itself to be "the just and true intent" for which the obligation was given, their narrowminded successors still adhered wilfully and technically to the letter of the antient precedents; and refused to consider the payment of principal, interest and costs as a full satisfaction of the bond. At the same time more liberal men, who sat in the courts of equity, construed the instrument according to its "just and true intent," as merely a security for the loan; in which light it was certainly understood by the parties; at least after these determinations; and therefore this construction should have been universally received. So, in mortgages, being only a landed, as the other is a personal, (y) Vide sup. vol. 1. p. 45. (3) Vide sup. vol. 11. p. 88. |