is in this case no more in effect than a fieri facias. So that body and goods may be taken in execution, or land and goods; but not body and land too, upon any judgment between subject and subject in the course of the common law. But,

Extendi Facias.

5. Upon some prosecutions given by statute: as in the case of recognizances or debts acknowledged on statutes merchant, or statutes staple (pursuant to the statutes 13 Edw. I. de mercatoribus, and 27 Edw. III. c. 9); upon forfeiture of these, the body, lands and goods may all be taken at once in execution to compel the payment of the debt. The process hereon is usually called an extent, or extendi facias, because the sheriff is to cause the lands, etc., to be appraised to their full extended value before he delivers them to the plaintiff, that it may be certainly known how soon the debt will be satisfied.

These are the methods which the law of England has pointed out for the execution of judgments: and when the plaintiff's demand is satisfied, either by the voluntary payment of the defendant or by this compulsory process or otherwise, satisfaction ought to be entered on the record, that the defendant may not be liable to be hereafter harassed a second time on the same account. But all these writs of execution must be sued out within a year and a day after the judgment is entered; otherwise the court concludes prima facie that the judgment is satisfied and extinct; yet, however, it will grant a writ of scire facias, in pursuance of statute Westm. 2, 13 Edw. I. c. 45, for the defendant to show cause why the judgment should not be revived, and execution had against him; to which the defendant may plead such matter as he has to allege in order to show why process of execution should not be issued; or the plaintiff may still bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law.

Chapter XXVII.

OF PROCEEDINGS IN THE COURTS OF EQUITY. 426-456.

Before we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations which were made in the beginning of this book on the principal tribunals of that kind, acknowledged by the constitution of England; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises, a sole jurisdiction, distinct from and exclusive of the other.

I have already attempted to trace (though very concisely) the history, rise and progress of the extraordinary court, or court of equity, in chancery. The same jurisdiction is exercised, and the same system of redress pursued in the equity court of exchequer ; with a distinction, however, as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those peculiar to the chancery.

As to Infants.

1. Upon the abolition of the court of wards, the care, which the crown was bound to take as guardian of its infant tenants, was totally extinguished in every feodal view; but resulted to the king in his courts 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; 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: 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.

As to Idiots and Lunatics.

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 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. 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.

As to Charities.

3. The king, as parens patriae, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And therefore whenever it 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 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 seals, to

inquire into any abuses 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 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 notwithstanding any loose opinions to the contrary.

As to Bankrupts.

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.

Equity-Nature.

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, but imperfectly it deserves a more complete explication. Yet as nothing is hereto 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. 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 erroneous to a certain degree.

I. 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; yet a court of equity had no power to interpose. 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."

2. 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. 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 laws 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 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; though the words of the law itself may be too general, too special, or otherwise inaccurate or defective. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in 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 endeavors to fix and adopt the true sense of the law in question; neither can enlarge, diminish, nor alter that sense in a single tittle.

3. Again, it hath been said 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: 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, created by the limitation of a second use, was forced into the courts of equity in the manner formerly mentioned; 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; and especially that implied contract, so highly beneficial and useful, of having undertaken to account for money received to another's_use, 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, founded on the circumstances of every particular case. Whereas 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, 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; 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; 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 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 gives rise to a general rule.

The suggestion of every bill to give jurisdiction to the courts of equity (copied from those early times) is, that the complainant hath no remedy at the common law. But he who should from thence conclude that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent and variety of the cases in our equity reports, must think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation in both courts are, or should be, exactly the same; both ought to adopt the best, or must cease to be courts of justice. Formerly some causes, which now no longer exist, might occasion a different rule to be followed in one · court from what was afterward adopted in the other, as found in the nature and reason of the thing.

Again, 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