1787.
that his relief muft be in chancery, if any where, becaufe of the eftablifhed rules and boundaries of the jurisdiction of thefe courts. W muft then confider the equity of this cafe, and determine upon all the circumftances thereof ; for altho' we have not the chancery forms or methods of carrying feveral equitable cafes into execution, yet we are to determine, where we may, according to equity, as making a part of the law, to prevent a failure of juftice. And here we have no precedents in chancery in point but the cafe of the Office, which was taken away by the ufurpers in the civil war in England, reported in 1 Ch. Cas. 72 that of the rent of a houfe, which was feized by the Parliament, during the faid war, for an Hofpital for foldiers, Ibid. 84, which appears to have been taken under advifement by the Chancellor, with a declaration, that, if he could, he would relieve the tenant ; but it was afterwards probably compromifed as we can find no more of it : that of the recognizance for payment of Ł.10,000 to legatees by an executor, where the teftators's eftate was fo leffened by the fire of London that it became infufficient to make up the fum, Ibid. 190. And that of the fee given with an Apprentice ; where Ł. 120 was given, and it was provided by articles expreʃsly, that if the mafter died within a year. Ł.60. were to be returned ; he died in three weeks after the execution of the articles ; and tho’ the parties themfelves had provided againft accidents, and tho’ the maxim, “ modus at conventio vincunt legem ” was urged, yet an hundred guineas were decreed to be paid back. 1 Vern 460. I fay thefe cafes, and the uncontradicted affertion of Dunning, that the cafe of Paradine verfus Jane, and the other cafes which went upon the like principles, had been lately over-rued in chancery, fee 3 Burr. 1639. and alfo fome others, which have been quoted by the Defendant's counfel, hold a doctrine that is ftrongly in favor of the Defendant.
In Doctor and Student, Dialogue 2. ch. 4. pa. 126. Mr. St. German in puzzled to give a fatisfactory reafon to the queftion put by the Doctor, to wit, “ If a man under age marries, and lands afterwards defcend to the wife, and wafte is committed therein after her death without the concurrence or default of the hufband, fhall he be charged with it ?” The cafe, thus ftated, fhews, that he could not refufe taking such eftate, and, therefore, the charge or condition annexed to it by law is unreafonable and unjuft. He makes the Student anfwer it in this manner:−“ That there is as great default in him as in him in the reverfion ; and that there is as great reafon why he fhould be charged with the wafte, as that he in reverfion fhould be difherited, and have no manner of remedy, nor yet no profit of land, as the other hath.” But I conceive that as there was no default in either of them, nor remedy over for either of them, that there is more reafon that each of them fhould bear his own fhare of the lofs, according to the duration of his eftate, than that the one fhould be refponfible to the other. The maxims, “ Lex non cogit impoʃʃibilia. ” “ Imptentia execuʃat legem. ” ‘‘ Conftructions are to be with equity
