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[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. And the inconvenience, as well as injustice, of putting different constructions in different courts, upon one and the same transaction, obliged the parliament at length to interfere; and to direct, by the statutes 4 Anne, c. 16, and 7 Geo. II. c. 20, that, in cases of bonds and mortgages, what had long been the practice of the courts of equity should also for the future be universally followed in the courts of law, wherein it had before these statutes in some degree obtained a footing (a).]
But notwithstanding these particular exceptions, the maxim that equity follows the law, has been long fully recognized; so that the rules of property, the rules of evidence, and the rules of interpretation, are, or ought to be, the same under both systems. Thus (neither a court of equity, nor of law, can vary men's wills or agreements; or, (in other words,) make wills or agreements for them. Both are to understand them truly, and therefore both of them uniformly. One court ought not to extend, nor the other abridge, a lawful provision deliberately settled by the parties, contrary to its just intent. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages,—as a rent of 51. an acre for ploughing up antient meadow (6); nor against a lapse of time, where the time is material to the contract,-as in covenants for renewal of leases. Both courts will equitably construe, but neither pretends to control or change, a lawful stipulation or agreement.] And upon the same principle, [where the subject-matter is such as requires to be determined secundum æquum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal cquity. In [matters of positive right, both courts must submit to and follow those antient and invariable maxims, “ quæ relicta sunt et tradita” (6). Both follow the law of nations, and collect it from history and the most approved authors of all countries, where the question depends upon that law; as in the case of the privileges of ambassadors.
(a) See Stern v. Vanburgh, 2 Keb. 553, 555; Elliott v. Callow, Salk. 597; Anonym. 6 Mod. 11; Burridge
v. Fortescue, ib. 60 ; Ireland's case, ib. 101.
(6) Aylett v. Dodd, 2 Atk. 239.
In mercantile transactions, they both follow the marine law, and argue from the usages and authorities received in all maritime countries. Where 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 (c); and if a question came before either, which was properly the object of a foreign municipal law, they would both receive information as to what is the rule of the country, and would both decide accordingly (d).
Such, then, being the parity of law and reason which governs both species of courts, wherein (it may be asked) does their essential difference consist?] It principally consists in the difference of the subjects over which they exercise jurisdiction; in the kind of relief they administer; and the method of proceeding they observe (e).
I. And, first, as to the subjects of jurisdiction. The jurisdiction in equity having been originally introduced, as elsewhere shown, to mitigate certain severities and to supply certain defects, existing in the common law (f), and from which relief could not otherwise be obtained, such jurisdiction is consequently to be considered as in the nature of a supplement only, (however valuable and extensive,) to the proper and antient scheme of judicature. There are accordingly many subjects which, having been
(1) “De jure natura, cogitare per nos atque dicere debemus; de jure populi Romani, quæ relicta sunt et tradita."-Cic. de Leg. 1, 3, ad calc.
(c) Vide sup. vol. 11. p. 209.
(d) See Phil. on Ev. vol. ii. p. 144.
(e) See Wykham v. Wykham, 18 Ves. jun. 415 ; Clarke v. Parker, 19 Ves. jun. 21, 22.
(S) Vide sup. vol. 1 p. 82.
always sufficiently provided for by the common law, remain under its exclusive cognizance, undisturbed by any interference of the courts of equity; some few, on the other hand, of which no notice has ever been taken by the courts of law, and which are therefore exclusively dealt with by the courts of equity; and many others over which the two jurisdictions hold a sort of divisum imperium, justice being administered to the suitor at common law, in reference to those subjects,—but in a limited or imperfect manner, and so as to require the occasional interposition of a court of equity, in order to insure to the suitor the full means and measure of redress (g). Of the first class of subjects it will be sufficient to say in general, that it comprises all those not falling under the second and third. To the second class belong the right of redemption in a forfeited mortgage, and the beneficiary interest under a trust (h); to the third, the subjects of accounts, partnerships, and agreements, with many others, of which a distinct idea cannot well be obtained without consulting the treatises on Chancery Practice (i). Of this class of subjects, however, it may be in general observed, that, though all in some measure belonging in common to the co-ordinate jurisdiction of law and equity, they are in some instances distributed between them in very unequal shares. Thus, though the subject of agreement may be said to be indifferently appropriate to either forum, the dominion over accounts, and by consequence over partnerships also, is almost entirely engrossed by the courts of equity.
II. As to the kinds of relief. We shall here particularly notice four kinds of relief which are afforded by a court of equity, namely, 1st, where it protects and enforces the execution of trusts; 2ndly, where it enforces the specific performance of contracts; 3rdly, where it grants an injunction; 4thly, where it lends its aid to perpetuate testimony.
(8) It is to be observed, however, law and equity. [See Dan. Pr. (3rd that a plaintiff is not allowed to sue edit.), p. 654 ; Smith's Pr.(6th edit.), both at law and in equity for the same thing; if he does, the court of (h) Vide sup. vol. 1. p. 375. equity will put him to his election ; (i) See particularly Daniell's though an exception to this is ad- Pract. of the Court of Chancery (3rd mitted in the case of a mortgagee, edit.), by Headlam. who is entitled to proceed both in
1st. The origin and nature of trusts have been stated under a former division of this work (k). In the present place we have further to remark, that for their protection and enforcement, no means are in general afforded by the courts of common law; but that proceedings may be taken in equity, praying such relief from the court as the circumstances of the case require; such as that of compelling the trustee to account for trust money received; or compelling the sale of the trust property, and a due application of the proceeds under the direction of the court; or setting aside dispositions of trust property made in breach of trust, and with knowledge of the trust, on the part of the purchaser as well as the trustee; or appointing new trustees, either in substitution for or in addition to the existing ones.
In connection with the subject of trusts, may be also noticed the proceedings in a court of equity, for the administration of assets (l): involving the payment of debts and legacies; and the distribution of residues, out of the estates, (whether legal or equitable,) of deceased persons ; and the passing of the accounts of such estates;- under the authority of the court. Such proceedings may be in
(k) Vide sup. vol. 1. p. 360 et two sets of claimants,--and one set seq.
are at law entitled to resort to either (1) The nature of assets was ex- fund, and the other to one of them plained, sup. vol. 1. pp. 433 -436 ; only,—and the former set so far exvol. 1. p. 213. The word assets, haust the fund to which the latter however, is sometimes applied more set have a right to resort, that it begenerally, and expresses any dis- comes insufficient to pay them,—they tributive estate, whether the owner is will in some cases be entitled in a deceased person or not.
equity, to be paid pro tanto out of the be convenient to remark here, upon other fund; in which case the assets the doctrine of courts of equity are said to be marshalled in their which is called the marshalling of favour. As to the learning on this assets. If a distributive estate com- subject, see Spence, Eq. Jur. vol. ii. prises two funds, and has to satisfy 826 ; Ram on Assets, chap. xxviii.
stituted either by a creditor, legatee, or next of kin; or even by the personal representative himself, when disinclined to undertake the responsibility of administering the assets (m). They are proceedings wholly foreign to the jurisdiction of the superior courts of the common law (n): which tribunals simply give effect to the claim of the particular creditor who sues there, to be paid out of such assets as a court of common law can notice, without ever undertaking a general distribution even of assets of this description; and entertain no claim for a distributive share of residue, nor (in general) for a legacy (o).
The legislature has recently been very active in its provisions on the subject of trusts. Among them, the following seem to require some notice in this place.
By 22 & 23 Vict. c. 35, s. 26 (p), no trustee, executor, or administrator making any payment, or doing any act bona fide under a power of attorney, shall be liable for what is so done, by reason that the person who
the (m) See 15 & 16 Vict. c. 86, ss. for a legacy, is where a chattel has 45–47; Consol. Gen. Ord. (1860), been specifically bequeathed, and vii. 1. 1. By 22 & 23 Vict. c. 35, the bequest assented to by the ex8. 29, the personal representative ecutor. See Doe v. Guy, 3 East, 123; may even, without reference to the 2 Saund. by Wms. 137 (c), 6th edit. Court of Chancery, ascertain the (p) Antecedently to this Act, the outstanding debts and liabilities by following statutes had been passed notices of a proper kind in the for relief of trustees; the enlargenewspapers; and at the expiration ment of their powers; and the reof the time named in such notices moval of inconvenience, arising from proceed to distribute among the their disability to act in certain parties entitled, and of whose claims cases :-43 Geo, 3, c. 75; 59 Géo. he has been apprised, See also sect. 3, c. 80, s. 2; 6 Geo. 4, c. 74; 9 30, and 23 & 24 Vict. c. 38, s. 9. Geo. 4, c. 78; 11 Geo. 4 & 1 Will.
(n) It will be recollected, how- 4, c. 65; 3 & 4 Will. 4, c. 74, ss. 33, ever, that a distributive share under 91; 8 & 9 Vict. c. 97, s. 3 ; c. 118, an intestacy, or a legacy under a will, ss. 20, 137; 10 & 11 Vict. c. 96; may be now recovered in a county 12 & 13 Vict. c. 74; 13 & 14 Vict. court, where the amount does not c. 35, ss. 19–25; c. 60; 15 & 16 exceed 501. Vide sup. vol. II. p. Vict. c. 55; 16 & 17 Vict. c. 70,
s. 108, et seq.; 18 & 19 Vict. c. 13 ; (0) The only case in which an ac- c. 91, s. 10; 19 & 20 Vict. c. 120, tion for a legacy seems maintainable
ss. 17, 36. in a superior court of common law,