I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY u - 5 I 3 a s£, (^ I zc; ^si J TREATISE ON THE PRINCIPLES AND PRACTICE OF THE HIGH COURT OF CHANCEJtY; UNDER THE FOLLOWING HEADS; I. COMMON LAW JURISDICTION OF THE CHANCELLOR. II. EQUITY JURISDICTION OF THE CHANCELLOR. III. STATUTORY JURISDICTION OF THE CHANCELLOR. IV. SPECIALLY DELEGATED JURISDICTION OF THE CHANCELLOR. By HENRY MADDOCK, Esq. OF LINCOLN'S INN, BARRISTER AT LAW. IN TWO VOLUMES. VOL. I. LONDON: PRINTED FOR W. CLARKE AND SONS. LAW BOOKSELLER*,, PORTUGAL-STREET, LINCOLN'S INN. 1815. \815 W. Flint, SI. Sepulchre's, l.ondo*. TO THE RIGHT HONOURABLE JOHN LORD ELDON, BARON ELDON, OF ELDON, IN THE COUNTY OF DURHAM, LORD HIGH CHANCELLOR OF THE UNITED KINGDOM, THE FOLLOWING TREATISE, !S RESPECTFULLY INSCRIBED. 7U077O PREFACE. J. HE following Work is the result of the leisure hours of several years. Desirous from duty and inclination, to acquaint myself with the principles and practice of the Court of Chancery, I resolved, early in my professional studies, to read all the Chancery Reports of reputation and autho- rity, beginning with the most modern, and concluding with the most ancient. This course of reading I pursued always with my pen in my hand, extracting the principles and the practice, as I read, and arranging them under such heads as seemed the most natural and convenient. This is the secret history of the design and execu- tion of this Work, which was originally in- tended only for private use. I might have taken an easier course ; I might have ap- plied myself to the treatises, several of them able ones, which have been written, on many of the subjects of the following Work, and have made a compilation of compila- VI PREFACE. tions; but this was repugnant to my feelings, as being neither satisfactory, nor just. To collect a multiplicity of particulars under general heads, and to refer a variety of operations to their common principle, has been justly observed to be the object of science ; but if it were true, that the Chancellor in the exercise of his Jurisdic- tion, acted only, as is vulgarly supposed, according to an unbounded discretion, nunc severius, nunc mitius agendo prout xiderint expedire, it would be a folly to attempt to systematise the doctrines of the Chancery; for what would be the use of principles, if they were of so fluctuating a nature that Chancellors might regard or disregard them as they thought proper ? In respect to costs, the Court does, indeed, from neces- sity, use a discretion, and it is the most painful part of its duty ; but in other re- spects, the system of our Courts of Equity is a laboured connected system, governedby established Rules, and bound downhy precedents, from which the judges do not depart, although the reason of some of them may, perhaps, be liable to objection. In cases of Trust and of Fraud, Chan-? cellors, it is true, have been unwilling to set bounds to their jurisdiction, and say how PREFACE. Vll Jar, in cases of that description, they will go ; yet so far as they have gone, the prin- ciples laid down, are binding authority. ** There are, " says Lord Redesdale, " cer- tain principles on which Courts of Equity act, which arc very well settled. The cases which occur arc various ; hut they are decided on fixed principles. Courts of Equity have m this respect no more discretionary power than Courts of Law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the Courts of Common Law proceed* " If Chancellors were not guided by Prece- dent, there ought to be fifty Courts of Chan- cery. A decided point is now never dis- cussed, but if Precedents were of no avail, each case must be argued on first principles, and the affairs of mankind could not be carried on. It seldom happens that a case comes before the Chancellor unaffected by previous deci- sion: — one, I remember, before agreat Judge, and he begins his decision by saying, " Having had doubts upon this Wilt for twenty years. * Bond v. Hopkins, 1 Sen. and Lefr. 428, 9. VU1 PREFACE* <$*c." Had there been eases in point, that eminent Man, equal to ar.y, and superior to most of his Predecessors, would have decided in five minutes, what he had been twenty years doubting upon. Lord Nottingham, disapproving of some cases cited to him, said with some warmth ie that he xcoutd alter the Law in that point f ;'* but Lord Talbot, when this saying was men- tioned to him, observed, " I do not see how any thing less than an act of Parliament can alter the Law ? " " If," said his Lordship, " the Law as it now stands, be thought in- convenient, it will be a good reason for the Legislature to alter it ; but till that is done, what is Law at present must take place 11 ." In the Case of Fry and Porter ', Lord Ch, J. Vaughan, who was called in to the assist^ ance of the Chancellor, said " he wondered to hear of citing of Precedents in matter of Equity ; for if there be Equity in a case, that Equity is an universal truth, and there can be no precedent in it : so that in any Precedent that can be produced, if it be the same with this case, the Reason and Equity is the same in itself; and if the Precedent be f rV'rmnnv. Goo'Uiam, Ch. h lb, Rtep. ?.ft». * 1 Mod. p. 300. Edit, by * II m d v. Stamford, 3 P. Leach, Wms. 41 J. PREFACE. IX not the same with this case, it is not to be cited, being not to that purpose;" but tin Lord Keeper Bridgman vindicated the use of Precedents. " Certainly," says he, '• Pre- cedents are very necessary and useful to us, for in them we may find the reasons of the Equity to guide us, and besides, the autho- rity of those who made them, is much to be regarded. We shall suppose they did it upon great consideration, and weighing of the matter; and it would be very strange, and very ill if we should disturb and set aside what has been the course for a long series of time and ages" L. C. Baron Hale said, " I know there is no intrinsical difference in cases by Precedents ; but there is a great difference in a case wherein a Man is to make, and where a man sees, (and is to follow) a Pre- cedent: in the one case a Man is more strictly bound up, but in the other he may take a greater liberty and latitude; for if a Man be in doubt, in a'quilibrio, concerning a case, whether it be equitable or no, in pru- dence he will determine according as the Precedents have been, especially if they have been made by Men of good authority for learning, &c. and have been continued or pursued." One is a little surprised at an expression X PREFACE. of Lord Northing ton's, upon a Precedent quoted before him, a decision of Lord Hard- wicke. " If is." said he, "an authority for the Master of the Rolls. But I feel only one air hority, that of the House of Lords, which is a superior Court ; no other authority has anv influence on my Judgment 14 ." He is the only Chancellor, since the Re- volution, who has used such Language. It was the expressed opinion of Lord Macclesfield, never to shake any settled re- solution touching property, or the Title of Land ; it being for the common good that these should be certain and known, however ill grounded the first resolution might be'. As to inconveniencies, if the Law is clear, they afford no argument of weight with the Judge. The Legislature only can remedy them ; they are properly considered only in a case where the Court entertains doubts 1 ". Often is a Judge, even in a Court of Equity, compelled to exclaim, " I yield to the authority, but not to the reason of thq Cases"." It was the opinion of Lord Thurlow, that, k Attorney General against 430 ; and see what is said in Tyndall, Ambl. GIG. Sparrow v. Hardcastle, Ainbl. 1 Wagstaffv. Wagstaff, 2 P. 227. and in 2 Atk. 560. Wins. 258,9. *> bee 2 Bro. C. C, 80. m Pike against Hoare, Ambl, PREFACE. \l " for the purpose of securing properly, and the due administration of Justice in a free country, judges ought to abide constantly by real principles, and by such beneficial Rules as may afford some reasonable .judg- ment without applying to a superior tri- bunal \ ,,J No man criticised more upon Rules laid down by other Judges, than Lord Thurlow ; but no man was more rigid in observing them when he could once deduce them >\ Thesame observation may be made of Lord Eldon. Nobody criticises judgments more, or sees more clearly the wisdom, or the errors of his predecessors ; but no one has adhered more pertinaciously to established Rules. From many considerations one might ex- pect that the Court of Chancery would ex- hibit an almost perfect system. The Chan- cellor always is, and must be, of transcen- dent talent. His Decisions are not, ne- cessarily, instantaneous — he may take what time he pleases to decide; no hasty, oft- hand, nisi priiis opinion, is required of him. Such are the subjects upon which he de- cides, that all party prejudices and pas- " 1 Rro. C. C. 4C,->. Alvanley in Hinchliffe v ; f See what is said by Lord Hinchlrffe, 3 Yes. o'-7. Xll PREFACE. sions and influence are excluded. They are only questions of Property that come be- fore he Chancellor. No State Prosecu- tions, no Treasons, no Libels, no Misde- meanors ; in a word, no question which in- volves Punishment, or where Damages are sought, ate brought before the Chancellor's Tribunal ; so that his Decisions are sub- ject to no undue bias of any kind. There was, to be sure, a time, when the Court wrote to the Chance.lor, in what way to decide ; but this abuse has long, very long, been at an end. No Science will ever come to perfection where it is the Interest of the Professors, to keep it impe,rfect ; but what Interest can our Chancellors have, in keep- ing the Chancery System imperfect, and to what is to be ascribed such a variety of Distinctions ? ft General Rules are easily framed, but the application of them creates considerable difliculty in all cases in which the Rule is- not sufficiently comprehensive to meet each circumstance, which may enter into and affect the particular case :" hence, distinc- tions unavoidably arise. Some of these niceties, have arisen from the pride of Intellect ; — that pride, which excites minds to triumph over their Pre- PREFACE. XI11 decessors in Office — to shew their errors, and establish wiser systems than those they constructed. But while each Chancellor thinks for himself, they seem to forget man- kind ; they shew themselves wiser perhaps than those who went before them, "plus sages que les sages" but by their differ- ences, they bewilder the {Suitor, who only wants some certain Rule on which he may rely. Another cause of the magnitude of the Chancery System, arises in a great degree, from what is, certainly, a noble error, the humanity of the Chancellors. To help an individual hardship, ageneral inconvenience is often occasioned; the Law is strained, and ingenious distinctions are created. I flatter myself this Work will prove useful to all ranks of the Profession, and more especially, to the young Student. We have, it is true, detached Treatises on equitable Subjects,and also the Reports of the Proceedings in Courts of Equity, which, cer- tainly, are so many rich Mines of equitable Principles ; but is it to be expected that a young Student, warm with the fascinat- ing charms of the Classics, and the gene- tfous Studies of the University, should read with any patience, a variety of Trea- tises, and pore over a long series of vo- XIV PREFACE. luminous Reports, before he has imbibed some elementary Principles on the Subject, and obtained some sort of cine to the vast labyrinth before him. Blackstonc in his Commentaries alludes occasionally to our Courts of Equity ; but his Treatment of the subject, though much to be admired so far as it extends, must yet be allowed to afford a very trifling knowledge of the prin- ciples of Equity. It is, in truth, one of the most deficient parts of that excellent Work. He has oriven an admirable view of part of theLawsof England, and particularly of the Common Law ; but we look in vain into that unrivalled Work for any detail- ed information relative to the Principles and Doctrines of the Court of Chancery. What little Blackstone there says of the Court of Chancery is sketched with admir- able spirit and correctness ; and fortunate had it been, if such a genius had been ap- plied to analize and unfold the principles of that Court. 1 1 is very surprising that this should be the first attempt that has been made to reduce into one comprehensive view, all the Doctrines of the Court of Chancery. Lord Nottingham, who has been called " the Father of Equity," appears to have planned, and partly to have executed a PREFACE. XV Work of this description ; but he lived in the infancy of the Science. It seems to have been the general opi- nion, that sueh a Work was impracticable, opus desperatum ; but the more we reflect, the more we shall be convinced, that the Doctrines of the Court of Chancery are reducible into System. Before the time of Sir Matthew Hale, the Common Law was considered as incapable of being reduced into System, by reason, it was said, of the indigestedness of it, and the multi- plicity of the Cases ; but Sir Matthew Hale was not of that opinion, and he immedi- ately began his famous Analysis, and ful- ly shewed he had reason to be so. On the foundation of that Treatise, Blackstone built his immortal Work. In like manner, it seems to me, that all the proceedings in the Court of Chancery are referable to some fixed principles; and are as capable of being- treated of systematically as the Common Law. Lord Nottingham observes of Sir Matthew Hale, that he looked upon Equity as part of the Common Law, and one of the grounds of it, and therefore as near as he could, he did always reduce it to certain Rules and Principles that men might study it as a science, and not think XVI PREFACE. the administration of it had any thing ar- bitrary in it ". The Lex Pretoria of Ch. Baron Gilbert, of which I have a copy in manuscript ; the Treatise of Equity by Mr. Ballow ; and the Principles of Equity by Lord Kaims, have each their respective merits ; but neither of them exhibits that arrangement and com- prehension which the subject seems of deserve, and require. The hex Pretoria is a very confined and unfinished sketch. The work, entitled, Principles of Equity , is too theoretical, and founded more on Scotch Law, than on the decisions of English Courts of Equity, and has never been looked up to as an authority. The Treatise on Equity, is a masterly work, and possesses too many excellencies to be hurt by any little criticism ; but with all its merits, it must be confessed to be not sufficiently compre- hensive or methodical, and like the other works I have noticed, unavoidably deficient in the information to be gathered from the modern Reports, by which the doctrines of the Court of Chancery have been so much illustrated and enlarged. Mr. Fonblanque i 1 See Burnet's Life and Bishop in 172. was Lord Not- Death of Hale, p. 170. The tingham. great man mentioned by the PREFACE. XV11 the Editor of the last-mentioned Work, has up to the period at which he wrote, nine- died one of its defects, by his references to the modern decisions ; but his notes, learned, useful and able as they are, are unavoidably desultory and unconnected, and have ren- dered still more glaring the remaining de- ficiencies of the original Work. If the Editor's delicacy had permitted him to recast the whole treatise, we should, pro- bably, have been furnished with a complete work ; such as might be expected from his great abilities, and long experience. From the plan on which this treatise was composed, I have had occasion to borrow but little from the works I have mentioned , none at all from Lord Kaims's work ; and in those few instances where I have received assistance from them, or from other Works, I have acknowledged the obligation. The first object of every student ought to be to study the elements of the doc- trines of his Art, and in almost all the Sciences, such Works aie to be found, " Whosoever," says Lord Chancellor Fortes- cue r a " desires to get a competent under- standing in any faculty or science, must by all means be well instructed in the ' FortesLue de Laud. Ang. Cb, S. C XV111 PREFACE. Principles thereof; for by reasoning from the Principles which are universally ac- knowledged and uncontested, we arrive at length at the final causes of things ; so that whoever is ignorant of these three, the Principles, Causes, and Elements of any Science, must needs be fatally ignorant of the Science itself; on the other hand, when these are known, the Science itself is known too, at least in general and in the main, though not distinctly and complete- ly.' 5 All those vast frightful volumes, termed Reports, would no longer appal the Student, if he had but a guide, in the mighty maze before him ; for cases are but corollaries from first principles ; they are proper enough, nay indispensable, as works for oc- casional Reference, but are wholly impro- per to be studied as elementary Books. Without method, though full of various knowledge, to use the Language of the Institutes, " they cause the Student either wholly to abandon his Studies, or bring him late through a series of labours to that knowledge which he might otherwise have attained with ease and expedition*." x Just. Instit. Lib. 1. Tit. 1. Reports of Cases in Chancery, s. 2. for a series of years. Thej are I cannot here deny myself valuable for the judgment the pleasure of remarking hot? t>hewn in the selection and for greatly the profession i* in- their extraordinary tidelity and, debted to Mr. Vesey,Jun. for his exactness. PREFACE. Xix Unless the principles of Chancery Science are mastered, it requires incessant appli- cation, and a stupendous memory to re- tain every particular decision ; but when once the principles are thoroughly acquir- ed, the application needs not be so inces- sant, and the memory, without any extra- ordinary effort, will easily store up and recal, as occasion may require, every im- portant case which has been presented to the mind, either by reading or experience. " I am inclined to believe," says an accu- rate observer of the human mind, " both from a theoretical view of the subject, and from my own observations, as far as they have reach- ed, that if we wish to fix the particulars of our knowledge very permanently in the memory, the most effectual way of doing it, is to refer them to general principles y ." In the execution of this Work, I have confined myself to the consideration of matters, which exclusively fall under the cognizance of the Chancellor, or concur- rently with other Courts of Equity. It is true, that a question of mere Law is often discussed in Courts of Equity, and this is frequently necessary, before equitable re- y Stewart's Elements of tTie Mind, p. 425. Philosophy of the Human c 2 XX PREFACE. lief can be administered ; but whenever such points arise, the Chancellor follows the Law, and such points are determined, in conformity with the decisions of the Com- mon Law Courts. But though such ques- tions do often collaterally arise, and almost every point of Law is occasionally brought into discussion, and our Equity Reports abound with them, yet I think it unneces- sary to detail the Principles of the decisions of the Chancellor on points of Law, and this, for several reasons. Because, though the opinion of the Chancellor even on a point of Law, must always be looked up to with great respect, yet, certainly, such points are decided with more of weight in the Common Law Courts, since the Judges are numerous, and their studies have been peculiarly devoted to the learning on such subjects. The opinion of the Chancellor on a point of Common Law, cannot be put in competition with an express decision of the Common Law Courts on the same sub- ject. It is therefore to the decisions of the Common Law Courts, that reference should be made, on such points. Indeed, if the Chancellor lias any doubt on a mere point of Law, if the point has not been clearly settled by Common Law determinations,. PREFACE. XXI it is his constant habit to refer to a Court of Common Law for its opinion; and though strictly speaking, the Chancellor is not bound to act upon the answer of a Court of Law % yet that opinion always governs the Chancellor ; a plain proof this of its pre- eminent authority in Common Law .Sci- ence. Of questions of Law the Judges are the sworn and proper Judges. " If," says the Lord Keeper Bridgman, who had called some of the Judges to his assistance, " I were of another opinion, yet I would be bound by the opinion of my Lords the Judges 3 ." In a case in which Lord Hardwicke had received the opinion of a Court of Com- mon Law on a case sent by him, he ob- served, " I shall not send it again to Law ; and however I might have doubted, if I had sat in the King's Bench, on the argument in point of Law, yet I shall not depart from the opinion of those learned Judges b ." And in another Case, where the Chan- cellor had called upon some of the Judges to assist him in a case before the Court, he observes, " If I had even now a doubt con- ■ UVes. 32. b fikins agnins* Macklish, * Fry and Farter, 1 Mod. A rub!, lb-3. SI 3. XXII PREPACEc cerning it, I should have held myself bound by the opinion of the Judges as a matter within their conuzance, in like manner, as if I had sent this to be tried at Law, in which ease, the Court always decrees con- sequentially to the Trial c ." A plain proof this of the binding effect of the decisions of Courts of Common Law upon the Chan- cellor. To introduce questions of pure Law in a treatise on Equity, renders the work inca- pable of system, confused, and irnmetho- dical, and is an amalgamation which serves- only to embarrass the reader. It is, I believe, one of the principal causes that has obstructed the reduction of Equity Principles to system and method. I have therefore, as much as possible avoided any notice of Common Law doctrines in the ensuing work, and must refer my readers to Common Law writers, for such learning. My original design was to prefix to this work, An historical View, of the Rise and Progress of the Chancellor's Authority ; con- ceiving it be a natural and proper introduc- tion. The enquiry, cost me great Labour,, and much antiquarian research; but as I e See Chesterfield v. Janson, Eldon says in Dashwood v* 2 Ves. 15^. and what Lord Peyton, 18 Vea. 97. PREFACE. XXlii bad mixed with it, the characters of the Chancellors ; the anecdotes concerning them connected with the administration of Jus- tice ; the various disputes respecting the Chancery ; the progress from arbitrary dis- cretion to fixed Rules ; a vindication of the Jurisdiction from the cavils of various Writers ; a suggestion of possible improve- ments ; and other matters incidentally re- lating to it ; my materials extended so much beyond what I originally intended, a short dissertation, that they amounted to a volume ; and as inquiries of this description are suit- able only to the taste of a few, and the pub- lication would have very considerably encreased the size and price of the Work, without contributing much to its utility, I dropped this part of my design, though not without some reluctance, as the subject was a favourite one. Many persons have conceived a prejudice against the Court of Chancery, and have con- sidered it, as an huge overgrown excrescence, which called for the pruning knife of the Legislature ; but this is the lan^ua^e of presuming ignorance. Some defects it has; the machinery of the great System has, till lately, been too slow in its motions ; but after contemplating the System in all its XXIV PREFACE. parts, visiting its foundations, and \\ itnessing its benefits, it is in my humble apprehension, a most beneficent system, and of unpar- ralleled wisdom and utility ; exhibiting, occasionally, all the subtlety of the dis- ciples of Loyo-la, but employing it to aid the sacred cause of Justice, To some, the numerous citations of cases may seem like an ostentation of reading; but every professional Man is fully aware, that the greatest merit in a legal Writer will not compensate for the want of cases in support of his positions. In an English Court of Justice, the veriest dolt that ever stammered a sentence, would be more at- tended to with a case in point, than Cicero with all his eloquence, unsupported by au- thorities ; and it is fit it should be so, for how, otherwise, can Law be, what it ought to be, a certain Rule of Conduct. Old Buildings, Lincoln 's Inn, Nor. 1.1814. TABLE OF COxNTEXTS. VOL. I CHAP. I. COMMON LAW JURISDICTION OF THE CHANCELLOR. P ge. J (1 mission of the Officers of the Court . 3 Proceedings in the Petty Bag Office . ib. etc. Ordering Writs to be made out by the Cursitors 6 Original Writs returnable into the King's Bench or Common Pleas . . 7 Writ de Ventre inspiciendo . . 9 Supplicavit . . . 10 Writ of Certiorari . , .11 Writs of Prohibition . 12 Writs of Error . . 14 Quashing and superseding of Writs , 15, etc. Writ of Replevin . . .18 Writ de Cautione admiltanda . . 18 Writ de homine replegiando - • 19 Writ of Melius inquirendo . . ib. Teste of Original Writs . 14 Patents . . - .It Removal of Coroners . - l§ CHAP. II. EQUITY JURISDICTION OF THE CHANCELLOR 221 ACCIDENT AND MISTAKE, /. Accidents, relieved against . . 22 Lost Bonds and Deeds . . 82, eh VOL. I. & XXVI TABLE OF CONTENTS. Page, Undistinguished Boundaries 26 Penalties and Forfeitures . 26, etc. II. Mistake, relievable 41 In Fines ib. In Becoveries ib. In execution of Deeds . 41 etc. In execution of Powers 44 In Settlements 50 In not surrendering Copyholds 55 In Bonds . » 59 In Law 60 In Judgment 61 In pleading 64 In Arbitrators 65 In settled Accounts 66 In Wills 66, 443 ACCOUNT. Jurisdiction in matters of 60 in cases of Mines 71 of Timber ib. Factor ib. Conusor ib. Heir at Law 76 Shares in Water Works ib. Pa rtnersh ip Dea I in gs ib. when slated Account opened 81 Tuthes . 84 FRAUD. 'ention of Fraud in the cases of Purchases by Trustees and others in fiduciary Situations of Trust Property 91 Transactions between Attorney and Client 94 Sales by expectant Heirs . 97 Guardian and Ward 101 Injunctions . .103 To slay Proceedings in oilier Courts 106 TABLE OF CONTENTS. \\\\i Page. prevention of praud. — Continued. To restrain the infringement of Patents 113 To stay Waste . . 115 To restrain .sale of Books and printed Music or Prints 123 To restrain Assignment of negotiable Securities . 127 To restrain in other Miscellaneous Cases 129 hy Bills of Peace 135 Bf/ Bills of Interpleader . 142 By Bills of Certiorari . 148 By Bills to perpetuate Testimony 152 By Bills of Discovery 160 By Bills Quia Timet 178 By Bills for the delivery up of Deeds, or for securing them, or t/ie delivering up of specific Chattels . 184 By Bills to enforce Contribution . 190 By Bills for Dower, or a Partition 195 By Bills to establish a Modus 202 By Bills to marshal Securities ib. Fraud. Defined . 204 Rules as to . 208 Suppressio vert 208, 209 ,210 Suggest io falsi 209, 211 ,253 Pine obtained by 211 Letters patent obtained by 212 Inadequacy of Price ib. Voluntary Settlement 216 L T nderhand Agreements . 226 between Debtor and Creditor ib, Marriage Brocage Bonds lb. Office Brocage Bonds 228 on Marriage 230, 235 By Executors in alienations . 228 1 -i Awards 234 a 2 XXVlii TABLE OF CONTENT^. Page. FRA CD. — Coiii in ued. In Insurances . . 234 In Verdict . ■ 236 In Judgment . • ib. In Decree . . • 237 In Probate - . ib. //? Assignment of Dower . 238 Cto Me Zaa? . . 240, etc. On Covenants . . 243, 4 Undue influence . 244 i? t V illusory appointments under Powers 247 On Power to Jointure . 251 0>z Custom of' London . . 252 By prevention of execut ion of Deeds i b . Fraudulent Devises . 253 Enabling another to commit a Fraud 256 By destroying or concealing Deeds 257 Employing Puffers at Sales . 257 Purchasing with notice of an unregistered Conveyance . . 260 Form of Relief in Cases of 261 INFANTS. Authority of Chancellor over . . 262 Custody of when taken from Parent 262, 263 Guardianship of . . 263, 264 Maintenance of . . . 271 Marriages of Infant Wards of Chancery 282 Agreements of, before Marriage . ib. Infant Trustees . vol. ii. 558 SPECIFIC PERFORMANCE OF AGREEMENTS. Origin of the Jurisdiction in these Cases 286 Effect of a Contract in Equity . 288 Vhen specific performance decreed . 287 Specific performance of Contracts for Chattels, in general refused, 295 Stat. 29 Car. 2. c. 3. 8, 4. 298 What a signing under this Statute ib, TABLE OF CONTEXTS. XXiX Pag.. specific performance of AGREEMENT. — Continued. Parol Agreement respecting Lands enforced, where /here has been a pari performance . 299, 300 What is considered a pari performance 303 Whether Agreement for a separate mainten- ance is enforceable . 305 Parol Agreement for a Partition . 309 Specific Performance of Covenants . 312 to renew a Li . 309 to procure Wife to acknowledge a Fine 310 to purchase Lands . 313 to settle a particular Estate . ib. Specific Performance of Direction by IVillto lay out Money in the purchase of Land 316 When specific Performance refused . 319 Agreement to build . . 320 to refer to Arbitration 321 Fraud, Surprise, Mistake, Concealment, Misrepresentation, or other unfairness, a ground to resist a specific Performance 321 So, a parol waiver of the Agreement 323 Illegal Agreement . . 325 Voluntary Agreement r . ib. Because Agreement a breach of Trust 328 Where there are Laches . 328 Because Plaintiff" has failed to perform his part of (he Agreement . 331 Where Felony or Misconduct in party with whom Agreement has been made for a Lease . . 332 Or Insolvency . . 333 Because of Elopement or Adultery of Wife, seeking a specific Performance of Arti- cles for a Jointure . 332 Public Policy a ground to resist a sped' fie Performance , XXX TABLE OFCONTENTS. Page. SPECIFIC PERFORMANCE OF AGREEMENT. — Continued. Agreement signed by one Party 335 Inadequacy of Price . 336 Want of Certainty . . ib. Want of Title . . 341 Of Compensation . 342 Incidents to a specific Performance 356 Reference of Bill for 208, 212,282 TRUSTS. Trusts described . , 353, 359 Construction of . . 360 Articles before Marriage * 50, 360 Fine affecting . . 361 Recovery . . ib. Power of Cestui que Trust over Trust Estate 362 Potcer of Trustee over Trust Estate 363 Express, created by Deed . 365 in Marriage Settlement , 366 in Conveyances to Purchasers 406 in Conveyances by way of Mortgage or otherwise for Payment of Debts 412 in Assignments of Choses in Action 433 Created by Will , . 437 Rules in the Construction of Wills 441 Devises on, for payment of Debts and Le- gacies Vol. ii. 480, etc. Executory - . 440, 445 Vindication of Lord Hardwicke's Doctrine in Bagshaw and Spencer . 451 , etc. Implied . . 466 Arising out of Office of Executor or Administrator . . 466 Administration of Assets . 466, etc. t or personal, legal or equi- 473 1 . Payment of Debts . 474 2. P of Legacies ii- 1 TABLE OF CONTENTS. XVXi VOL. II. TRUSTS. — Contin ued. Page. Jurisdiction in cases of Legaoie* 1 Donatio Causti mortis . 4 Specific ■ • 7 Vested • • .12 Lapsed . - 19 Conditional . - 24 When Legacy satisfaction ,. 33 When Legatee put to an election . 40 To Charity ■ 49 Interest on . .64 Accumulative . • '* Ademption of . .74 Of Residue ■ • 81 Abatement of 93 By purchases in name of another 97 By purchases with notice of a Trust 103 Lien of Vendor • 1 0i> Resulting 97, 107 Breaches of . • 1 1 3 J3?/ Trustees or Executors • ib. etc. J3?/ Governors and others of a Charity 129, etc. Allowances to Trustees . • 131 Removal of Trustee . 133 CHANCERY PRACTICE. Suit how commenced • . . 135 Frame of Bills . . ib. etc. Parties to Bills . ■ ' l - Letter missive and Subpoena . l ot> Appearance % . . l bJ XXXH TABLE OF CONTENTS, Page- chancery practice. — Continued. Motions after Bitt filed and before Answer 170 For an Injunction . . 172 a Writ of Xe Exeat . 182 a Guardian . . 187,223 a Receiver . . 187 To amend Bitt . . 199 To take Bill pro confesso . 199 To examine Witnesses de bene esse . 202 For payment of Money into Court 206 For a reference of Title . 208 For time to answer . . ib. To refer a Bill of Foreclosure, or a Bill for a specific Performance 212 For a reference to see if two Suits are for the same purpose . . 213 That a Defendant a Feme Covert may an- swer separately . 215 For leave to defend in formd pauperis 216 For security for Costs . ib. To amend Flea . . 220 To slay Proceedings till cross bill answered 221 To refer Bill for Scandal or Impertinence 221 For leave to withdraw a Demurrer ib„ For a liefer ence to see if Suit is for the benefit of an Infant . 224 That Answer may be taken without Signature ib. Demurrer . . ib. Plea . . ' . 235 Answer , . 259 Replication and- Rejoinder . 275 Motions after Demurrer ; Plea or Answer, and before Decree . . 273 such as, to refer Answer for Scandal or Imperti- nence . 277 TABLE OF CONTENTS. XX\..i Page. chancery PRACTICE. — Continued. Thai Plaintiff may elect to sue at Law or in Equity . • 280 For a Reference as to Title, on a Rill for a specific performance . 282 To dissolve an Injunction . 282 For amendment of Pleadings . 286 To dismiss Bill . . 295 For product ion of Deeds, /' Bankrupt joint and separate . 461 superseding of . 467 second . . 475 Petitioning Creditor's Debt 454, 476 Act of Bankruptcy . 481 Provisional Assignment . 483 Effect of Commission upon the Property of the Bankrupt . . 485 Proof of Debts . . 498 Of Lien and Set-off * , 510 Election of Creditors . 515 Stoppages in Transitu . 518 Svrrender and Examination of Bankrupt 51P Assignees . . 524 duty of . . 527 Dividend . . 531 Certificate . . 535 effect of . . 543 Bankrupt" s Allowance . . 547 Surplus . . .548 Charitable Uses . . 549 City of London Tithes . 552 Habeas Corpus Act , . 553 Arbitration Act . . 554 Jews . . 557 Infant Trustees . . 558 Marriage Act . .561 friendly Society Act . . 561 Private Acts . . 562 Justices of the Peace . ih. XXXVi TABLE OF CONTENTS. CHAP. IV. SPECIALLY DELEGATED JURISDICTION. Page; Ideots and Lunatics 565 Jurisdiction of Chancellor as to 566 Ideots 567 Lunatics 568 Proceedings to obtain Commission of Lunacy 569 Commission in Nature of a Writ de Luna- tico Inquirendo 572 Traverse of Commission 576 Superseding Commission 578 Committee 58Q his Power and Duly 583, etc, Lunatic Mortgagee 588 Suits on behalf of a Non Compos 592 Petitions of Right . 595 NAMES OF CASES. ABEL v. Heathcote ii. 391 v. Nodes . ii. 390 Abell exparte . ii. 404 Abergaveny v. Abergaveny ii. 201,2:21,396 Abinsjdon, Lord, v. Butter ii. 287 Abrahall r. Bub . i. 115 Abraham v. Dodgson ii. 228 Ackrovd v. Suiithson ii. 110 Acton v. Market . ii. 179 Adair v. JVew River Company ii. 147, 148 Adair v. Shaw i. 460, ii. 103, 113, 424 ii. 540 ii. 204 i. 518 ii. 117 i. 476 i. 385 i. 324 . ii.592 Adams, exparte Adams v. Bohun ■ v. Buckland v. Gale v. Merrick v. Pierce v. Weare Addison v. Dawson v. Hindmarsh ii. 437, 4 10 - v. Walker . ii. 30 3 Adlington v, Cann . i. 240 Agar v. Fairfax i. 199,201 Aiscough, exparte . i. 9, 10 Akerman, exparte . ii. 403 Akers v. Chancey . ii. 205 Alam v. Jourdan . ii. 338 Albans, St. Duke of v. Beauclerk ii. 72, 73 Alardes v. Cambel ii. 556 Alcock, exparte ii. 463 Alder jou v, Temple i, 4 : i2 Aldrich v. Cooper i. 203, 407, 499 Aldridgev. Mesner i. 147, 148 — v. Thompson i. 148 i. 155, 158 i.300, ii. 346 ii. 542 i. 290 ii. 73 Allan v. Allan v. Bower Allen, exparte Allen, v. Allen v. Callow v. Downes ii. 467 v. Hancoru ii. 121 v. Harding i. 337 v. Pendlebury ii. 391 v. Poulton i. 57 Aller v. Jones i. 105 Allerton v. Knowell i. 391 Alexander v. Alexander i. 250 v. M'Cullock i. :j91 v. Lady Gresham i. 493 Alley v. Deschamps i. 28(5,329, 342, 343 Alleyne v. Alleyne Alpha v. Payman i. 177, ii. 290 Alsager v. Johnson ii. 279 v. Rowley ii. 152 Alston \. Alston * i. 136 A mas v. Korner ii. 27 Amrsbury v. Browne i. 193 Amhurst v. Dowling i. 413 Ainler v. Amler Amsinck v. Barclay Ancaster v. Mayer rson, exparte ■ — \. Dwyer — v. i 318 ii.184, ls; i. 475 ii.560 i. 489, 490 ii. 159j 327 xxxvm NAMES OF CASES, Vol. Page. Anderson v. Maltby ii. 402 ■ — v. Palmer ii. 296 Andree v. ' ii. 270 Andrew v. Clarke ii. 89 v. Trinity Hall Col. ii.4l » against Wrigley i. 230, 362 Andrews v. Eminerson ii. 384 . v. Eminot i. 442 v. Palmer ii. 204 _ . v. Partington i. 272, ii. 17 Androvin v. Poilblanc ii. 85, 88 An«iel, exparte ii. 152 —- v. Smith ii. 197 Angier v. Angier i. 307 Angerstein v. Clarke ii. 154, 287 v. Hunt ii. 181 Annaud v. Honeywood i. 509 Annandale s, Lord, Case ii. 590 . Marchioness of, exparte ii. 585, 588 Annesley v. Ashurst i. 321 Ansliev. Medlycott i. 209,282, ii. 216 Antrobus v. East India Company i. 86 v. Smith i. 327 Appleyard v. Seton ii. 177 Apreece v. Apreece ii. 11,64 Archer v. Mosse i. 206 v.Pope . i. 369 . v. Snatt i. 424 Arcot, Nabob of, v. East India Company . ii- 220 Ardglasse v. Muschamp i. 214 Armitage, exparte i. 16 Arm iter v. Swanton ii. 317 Armstrong, exparte ii. 591 Arnold v. Arnold ii. 8 v. Chapman i. 502 < v. Kempstead ii. 48 Arrowsmith, exparte ii. 474 Arthington v. I'awkes i. 132 Artis, exparte . ii. 509 Arundell, Lady, v. Phipps i. 109, 130 Lord, v. Pitt ii. 313 v. Trevilieu i. 227 Ascough v. Johnson i. 42-3 Ash v. Rode . i. 41 Vol. Pagp.i Ashburnerv. M'Guire ii. 8, lO, 11, 75, 77 Ashburnham v. Kirkhall ii. 367 — — — v. Thompson ii. 115,398,421 Ashly v. Bailie Ashley, exparte Ashe's Case Ashley v. Pococke Ashton v. Ashton ii.257 ii. 503 ii. 591 i.46& ii. 8, 10, 11, 75, 255 Ashurst v. Eyre ii. 148 Askenhurst v. James i. 436 Askew v. Poulterer's Com- pany . ii. 336 Astell v. Montgomery ii. 40 Astley v. Weldon i. 33 Aston v. Aston i. 193, 392. ii. 300 Aston v. Lord Exeter i. 166. ii. 30O Astrey's case *- i. 80 Atherton v. Worth i. 433 Atkins v. Fan* . i. 260 v. Hiccocks ii. 18 v. Hill . ii. 2 v. Wright ii. 6, 299, 300 Atkinson v. Hutchinson i. 439 . v. Leonard i. 23. ii. 185 v. Turner ii. 12 v. Webb ii. 36 Attorney General v. Andrew ii. 55, 57 v. Backhouse ii. 130, 255 » ■ ■ ■ v. Corporation of Bedford . ii. 59, 62 v. Berryman ii. 53 v. Black ii. 59 v. Bishop of Chester ii. 53 ■ v. Boultbee ii. 58 ■ v. Bower ii. 112 v. Bowles ii. 51, 52, 54 ■ v. Bowyer ii. 58, 112 — — — v. Breeton ii. 139 v. Brewer's Company ii. 425 v. Bucknall ii. 140, 148 v. Butler i. 364. ii. 105 v. Caldwell i. 502 ■ ■ ■■ v. Lord Clarendon i. 91, ii. (54 - v. Clarke ii. 56 NAMES OF i • Vol. Paee. Attorney General v. Cooke ii. 56 ■ v. Crispin ii. 13 v. Davis i. 53 v. Day i. 288, 289, 291. ii. 51, '294, 298, 803, 305 v. Dixie ii. 129, 551,589 v. Doughty ii. 174 ■ v. Downing i. 55, 474 ■ v. Finch ' ii. 295, '297 v. Foundling Hospital ii. 62 - v. Fowler - v. Goulding ■ ■ v. i I reaves - — — v. Green v. Griffith -— v. Gubu ii. 56 ii. 57 i. 502 ii. 58, 130 ii. 130 ii. 57 v. Haberdasher's: Com- pany v i v V — v ii. 63, 421 Harrow School ii. (U Hartley Heath Herrick - v. Hooper - v. Hudson - v. Hutchinson n. 5o ii. 242,390 ii. 63 ii. 89 ii. 94 ii. 54 v. Jackson ii. 139,147,234 v. Janes v. Johnson v. Johnstone Leigh Lock Mayor Merrick Middleton Milner Minshall Mountnorris . v. Nash - v. Newcombe - v. Nichol - v. Oglander - v. Owen - v. Packhurst - v. Parker Parkin Parnthei Parsons — v — V — V — V ii. 139 ii. 59 i. 82. ii. 106, 108 ii. 62 ii. 62 ii. 59 ii. 51, 52 ii. 59, 00 i. 316 ii. 57, 58 i. 502 ii. 53 ii. 289 ii. ITS ii. 58 ii. 130 ii. 592 ii. 139 11,77 . P ii. 580, 584 ii. 53, 54 ii. 63 Vol Attorney General v. Pyle ii. 5s v. Rigbj ii. 62 \ . Robins ii. 91 ii. 56 i. 40S ii. 139, 441 ii. ii. 139 ii. 59 ii. 61 ii. 53 ii. 592 — -— ~ v. Kuper — — v. Sandys v. Scott v. Siderfin V. Smart ■ v. Sparkes v.Talbot — — — v. 'Fancied ■ v. Tiler — v. Tomkyns i. 502. ii. 52 — v. Tonna ii. 59. ii. 427 — v. Turner ii. 412 — v. Tyndal i. Pref. viii. 497, 502. ii. 53, 54 — v. Vernon i. 212 — v. Vigors i; 261,439. ii. 198, 583 — v. Wansay ii. 58 — v. Ward i. 487 — v. Weymouth ii. 50, 51 ~ v. Whitehurst ii. 53, 54, 58 — v. Whiteley ii. 57, 58, 139, 396 — v. Whorewood i. 312, 387. ii. 137 — v. Williams ii. 53 — v. Winchelsea ii. 49, 58 — v. Wyburgh ii. 145, 343 - v. Youne ii. 201 i. I!) i. 96 ii. 586 i. 499. ii. 106 ii. 10, 77, 105 i. 233 ii. 180 ii. 319 ii. 59, 428 i. 91,475. v. Trice ii, 50, 59, 60, 01 o Atwood v. Atwood Aubrey v. Popkin Audley v. Audley Austen v. Halsey Avelyn v. Ward Awbrey v. King Axe v. Clarke Ay let v. Easy v. Dodd Ayliffv. Murray ii. 131, 330 Aynsworth v. Pratchett i. 274 Ayres v. Willis ii. 43, 47 B. Babbington v. Greenwood i. 370 ii. 46 Buck v. Andrews ii. 99, 101 xl NAMES OF CASES. Vol. Page. Bad-well's Case ii. 457, 4(H), 469 Bacon v. Bacon ii. 1 "2*2 Baden v. Countess of Pembroke i. 291 Badger, ex parte Badrtck v. Stephens Bagnal v. Bagnal Baeot v. Ouditon Bagwell v. Dry Bagshaw v. Butson v. Spencer Bailey v. Elkins /. Hammond -. Sibbald Baillie Bainbridge, ex parte Baio.es v. Dixon Bainton v. Ward Baker, ex parte v. Athil v. Bird v. Child ■ v. Duinaresque v. Harris v. Hart i. 112. ii. 366, 367, 368 v. Hall v. Holmes v. Mellish ii. 508 ii. 75 ii. 405 i. 472 ii. 86 ii. 287 i. 357, 433 i. 481, 482. . 372 ii. 341 ii. 246 ii. 533 i. 485 i. 495 ii. 585 i. 85 ii. 250 i. 310 ii. 220 i. 423 • v. Payne • v. Pritchard . v. White ii. 81 ii. 158 ii. 227, 206, 268, 207 i. 322 ii. 232, 273 i. 236 Balcli v. Wastall Baldwin v. Billiiigsley . v. Johnson v. IVluck.nvn ii. 149 i. 436 ii. 85 ii. 405 i. 360 Bale v. Coleman - — . v. Newton i. 325 Ball v. Coutts i.278, 280. ii. 160 v. Montgomery i. 308, 390, 301 ii. 13 ii. 208 ii. 133 Balmaine v. Snore Balmanno v. Lumley Balsh v. Hyam Banbury's, I ord, Case i. 217, 218 Banbury v. ■ » i. 177 Banbury Claim i. 153 Bancroft v. Warden ii. 227 Baadier, ex parte ii. 405 Vol. Vug*. Bang-ley, ex parte ii. 536, 538° Bank v. Farquis ii. 32 Bank of England v. Lunn ii. 12 v. Morris i. 273 Banks, ex parte ii. 465 v. Den sham i. 50 v. Sutton i. 360, 363 Barbone v. Trent i. 04, 172 Barclay v. Russell ii. 85,167 v. Wainwright ii. 37, 73 Barfit, exparte ii. 526 Barring v. Nash i. 199, 201, 202 Bark v. Harris ii. 234 Dacie i. 161. ii. 227 Duinaresque ii. 282 Barker v. v v Goodair i. 112, 113 ii. 464, 487 i. 241 ii. 275 i. 394, 395 i. 37 v. Lin good i. 97, 98, 336. ii. 329 v. Soane ii. 113 Barnes v. Allen i. 437. ii. 13 v. Vansomar v. Wyld Barnard v. Large Barnardiston v. Fane v. Baker v. Saxby i. 128 ii. 278 i. 256 i. 100 Bar-net v. Weston Barney v. Blake Barnsley, ex parte ii. 569, 575, 576 v. Powell i. 212, 237, 238, 261. ii. 206,321,435 ii. 34 i. 138 ii. 337 i. 310 i. 406 ii. 404 ii. 272 Barret v. Beckford v. Blagrave v. Gore Banington v. Home — ~— — — v. O'Brien v. Tristran ii. 9, 17,64, 420 Barrough v. Greenough i. 253 Barrow, ex parte ii. 480 Bartholomew v. May i. 477 Bartlett v. Hawker i. 158 Barton v. Barton ii. 28 v. Coke i. 285, ii. 426 Barwell v. Parker i. 433, 488 Barwis, ex parte ii. 469 VUIJ'S OF CASES. xh Vol. Page. B«sk v. Dal way i. 51, 289 Baskerville v. Buskerville i. 160 B ni ■■>■*. v. Clapham i. 303 v. Nos worthy 1. 409 Bassevi v. Sena ii. 4 19 Bustard v. Clarke ii. 213 Batch v. Andrews ii. 1 1 Bate, ex parte ii. 547 Hate v. Scales ii. 121 Bateman v. Murray i. 34 v. W'.llue i. 04, 236 Bates v. l'a\ Icy i. -'5' 2 v. Dandy i. 383,384,387 v. Graves i. 141,20(5, 207, 261. ii. 381 V. Heard I. 258 Bath's, Earl of, Case i. 141 Hat 1 1 v. Montague i. S9 Lord v. Lord Bradford i. 4S8 Lord v. Sherwin i. 130, 141 Bathurst, Earl, v. Bar den i. 132 279, 281 ii. 13 i. 481,49 4 i. 181 i. 215 ii. 420 ii. 389 ii. 57 i. 299 ii. 246 ii. 13 ii. 224 i. 494 v. Murray i Batsford v. Kehbel Batson v. Lingreeii Batten v. Earnley Batty v. Lloyd Baugh v. Reed Bax, ex parte Baxter's Case Bawdes v. Am hurst Buy ley v. Adams ■- v. Bishop v. De Walkeirs ■ v. El kins « v. Corporation of Leo- minster i. 34. ii. 417 v. Powell ii. 89 Baylisv. Attorney General i. 08 Baynes v. Baynes i. 319 v. Dixon ii. 07 Bavuhain v. Guv's Hospital i. 34 i. 11 i. 40, 248 i. 201 )i. 373 i. 405 i. 69 ii 473 i- 320 ii. 403 i. 277 ii. 470 . 211,200 Baynum v. Bay num. Bax v. Wliitbread Baxter v. Knollys v. Wilson Beale v. Beale Beamonl v. Fell Bean, expa.te Beard v. Nuthall v. Earl Powia v. Travera Beaseiey v. Beasley BeatrifTv. Smith \QL. I. Vol. Pa • Beaufort, Duke or, v. Berty i. 21 ;{ ats. v. Read v. Walker Bellamy v. Jones Bellassis v. Erwin v. Uthwaite Bellew v. Russell ii. 378 i. 85 i. 120 ii. 202, 203 ii. 25 ii. 34 i. 95* ii. 310, 342 Belton, exparte ii. 509 Bempde v. Johnstone i. 517 Bencraft v. Rich ii.30(> Benfield, exparte ii. 407 v. Solomons ii. 487, 501 Benger v. Drew ii. 9S Bengough v. Walker ii. 34, 35 Bennett, exparte i. 27, 92 ii. 531 ii. 87 i. 363, 376 i.428 i. 411 ii 253, 261 v. Vade ii. 139, 147, 5(8 v. Whitehead "I Coll.v. Carey ii. 298,115, 41S Benson v. Baldwin )• 20 e — v. Ratchelor •- v. Davis — v. Edwards ■- v. Lee xlii NAMES OF CASES. Vol. Pajre. Benson v. Bellasis i. 310 v. Benson k 310 v. Gibson L 33 v. Vernon ii. 358 Benyon v. Benyon ii. 73, 74 v. Collins i. 400 v. Maddisou ii. 13 Berk hainpstead free school ii. 550 Berks v. Wigau ii. 277 Berney v. Fitt Berkley v. Bryraer ■ v. Daugh v.. Rvder L98 ii, 283 i. 348 ii. 329 Bernal v. Marquis of Donnegal ii. 185 Berrisford v. Mrlward i. 257 Berry v. Ask ham i. 485 v. Usher ii. 108, 110 v. Wade i. 310 Bertie v. Lord Falkland i. 35, 262, 374 Best v. Stamford L 202 Bethuen v. Bateman ii. -04 Bettesworth v. Dean and Chapter of St. Paul's i. 288,308 Bevan, exparte ji. 403, 4<>5 Bevant v. Pope i. 303 Beverley's Case ii. 5G8, 502 Bevershain v. Thringhold i. 135 Bias v. Bias i. 57 Biekhatn v. Cross i. 480 Bicknell v. Cough, i.205 ' v. Page u 470 Biddlev. Biddle iL40 Biddulph v. Biddulph ii. 100 Bigghton v. Grubb ii. 417 Bigglestou v. Grubb ii. 79 Bignol v. Bignol i. 432 Bill v. Kynaston i. 182 ■ — v. Price i. 99 Billinghurst, exparte ii.5M v. Walker i. 179 Billingslev v. Crickett i. 273 Billon v. Hyde ii. 486, 5J3 Bindon, Lord, v. Earl of Suffolk ii. 83 Binford v. Bowdeu i. 317 v. Domnutt i. 79. ii. 330 Bingham v. Bingham i. 02 Binstead v, Bearfoot ii. 431 — ■ v. Coleman i. 298 Birch v. Blagrave i. 242 v. Ellames i. 420 Birch v. Holt Birchill, ex parte Bird v. Harrison v. Lefevre v. Hardwieke Biscoe v. Perkins i. Bishop v. Church Vol. Page-. i. 130 i. 207 ii. 302 ii. 81,574 i. 173 345, 304, 300 i. 1, 428. ii. 331,512, 514,515 v. Webster v. Willis v. Axtell Combs Ed-hy i. Bissell Black hall v. Black born v. Blackburn v. Gregsons Blackborough v. Davis Blaeket v. l-an^lands Blackshaw v. Rogers Blackwell v. Harper v. Nash i. Blackwood, ats. Blacoe v. Wilkinson Blades v. Blades Blagden v. Bradbear Blake v. Blake v. Buubury 338 ii. 442 i.468 i. 65 i. 240 i. 409 i. 13 ii. 237 ii. 10 i. 126 331, 333 176 110 260 208 305 ii. 40, 44 East IndiaCompany i. 33 v. Lei«;h i. 2G7 Blakeway v.^Strafford i. 482, B lam ire v. Gildart ii. 13 Blauchard v. Hill i. 134 Bland, ex parte ii. 476 Blanford v. Tliackerell ii. 51 Blatch v. Wilder i. 493. ii. 354 Blewit's ca«e ii. 589 Bligh v. ii. 296 v. Lord Darnlev i. 501. ii. 355, 303 Blinkhorn v. Feast ii. 79,88,89,90 Bl it he's Case i. 236 Blois v. Lady Hereford i. 283 v. Martin .371 ii. 2 i. 350, 351. ii. 380 ii.423 ii. 397 ii. 435 Morrettik 93,94,399, 40O Bluck v. Fawcett ii. 372 Bine v. Marshall ii. 129 Blundell v. Buttargh i. 338 Blunden v. Barker i. 370 Blount v. Bestland — v. Blount v. Burrow v. Doughty Blower v. Meyrick v NAMES OF CASES. xliii Vol. Pag». Vol. P • Itlunt v. Clitherow ii. 198, 58'i Bowersbank v. Collassnu ii. 192 Blyth v. Elmhirst ii. 283 Bowes, ex parte ii. 47!, 17 Boardman v. Mostyn i. 300,304, v. Strathmore i. 235. ."340. ii. 128 ii. 170 Bodicoate v. St. era i. 200 Bowlcer v. Hunter ii. 90, 92 Boehm v. De Tastet ii.444 Bowles v. Rogers Boeve v. Shipwith ii. 405 v. Stewart i. 180, 200, Bold v. Corbett i. :*•"> 259 Bolger v, Maekell ii. 12,429 Bowman v. Lygon ii. 330 Bolton School, ex parte ii. 563 Bowyer v. M c Evoy ii. 207, , Duke of, v. Williams Boycott v. Cotton i. 405. ii. 21 i. 486. ii. 441 Boyd v. Wills ii.273 Bonbonus, ex parte ii. 462, 464 Boyle v. Bishop of Peterborough Bond& Hill, ex parte ii. 465,466 i. 3 4, 247, 2 .9 v. Hopkins i. Pref. vii. 421 v. Lysaght i. 34 v. Kent ii. 107 Boyntou v. Pack hurst i. 4."0 . v. Duke of Newcastle ii. 158 Bow hee v. Grills ii. 101 v. Simmons i. 390, 391 Bowlter v. Hunter ii. 85 I Bonham v. Newcombe i. 41. Bracken v. Bent ley i. iS-_: ii. 4 10 Brace v. Duchess of Marlborough Bonithonv. Hack more i. 427 i. 421, 434 Bonner v. Bonner i. 4S0, 4S7, 502 Bradish v. Gee i. Bonney v. Ridgard i. 302 ii. 248, 138 Booth v. Booth s ii. 12, IS Bradley v. Bradley i. 59 v. Dick ii. 352 v. Prixoto ii. 31 v. Rich ii. 354 Brad.->haw v. Out ram ii. 1 !'J Boraine's Case i. 17 Bradwinv. Harper ii. 146 Borretv. Good ere i. 488 Bramley v. Alt i. 257 Bosanquet v. Dashwood i. 242 Brandlyn v. Order. 159. ii.248, Bostock v. Blakeney ii. 120, 127 258 Bosville v. Brander i. 384 Brasbridge v.WopdrofJe ii. !'(>,'>;: Boswell v. Corant i. 493 Brasskigton v. Brassington-ii. 2 I Bosworth School, ex parte ii. 589 Bray v. i. 30 Botteler v. Allingham i. 361. Braybrooke v. Inskip i. 345, 364. ii. 231, 2-32 ii. 164 Botterill, ex parte ii. 517 Brecton v. Da; kin i. : >i\> Botts v. Verelest ii 202 Brend v. Brend ii. 410 Boughton v. Boughtoo i. 223. ii. Brereton v. Game! ii. 255 47 Brett v. Fercer i. 38, 384, :JS7 Boulbee v. Stubbs i. 191 Brettell, ex parte ii. 105 Bourdillon v. Alleyne ii. 205 Brewett v. Mitchell I 93 Bourke v. Bothwell ii. 304 Brian v. Acton L 328 v. Bridgman i. 82 Brice v. Stokes ii. 119, 123 v. Lord Macdonald ii. 158 Brickly »\ Doninngton i. 229 ■ v. llicketts ii. 00, 08,70 Bridgev. Abbott ii. 20 Bourne, ex parte i. 4ol Bridges v. Hitchcox i. 309 v. Dodson ii. 495,496 —v. Mitchell i. 79 Bovey v. Smith ii. 101 v. Wood ii. 19 l>oweii, e\ parte ii. 473 Bridgman v. Dove i. 474, 482 Bower v. Carter i. 245 v. Green i. 242 Bowers v. Cator i. 302 Bridgwater, Duke of, v, Edwards v. Litile.\ood i. 519 ». 25 e 2 xliv NAMES OF CASES'. Bright v. Eynon v. Woodward Vol. ?a?p. i. 206 . i. 4(8 Briscoe v. Cartwright i. 58 Bristol, Earl of, v. Hungerford i. 422 Bristowe v. Ward i. 249, 250 Broderick v. Broderick i. 208 ii. 228 ii. 574 i. 300 i. 401 Broderip v. Phillips Brodie v. Barry v. St. Paul Brome v. Berkley v . Monk i. 283. ii. 41 Bromfield, ex parte ii. 580 ■ v. Chichester ii. 419 Bromhead v. Smith ii. 102 Bromley ats. 'ii. 149 v. Goodere ii. 459, 499, 540, 548 v. Jeffereys i.337 v. Holland i. 23, 184, 186. ii. 423 Bromsdonv. Winter ii. 77 Brooke v. Galley i. 97, 99 j Lord, v. Lord Hertford i. 200. ii. 353 v. Hewitt ii. 225 Brookes v. Reynolds ii. 377 Broughton v. Errington ii. 34 Brown v. Allen ii. 93, 95 Browne, ex parte ii. 457, 400, 408, 473, 502 v. Barkham i. 2S, 427 ■ • v. Browne i. 00 v. Bullen ii. 528 v. Byne ii. 295 — v. Carter i. 246 — — — v. Chapman ii. 401 v. Clarke i. 385 • ' v. Dawson ii. 30 ■ ■ v. He Laet i. 451 v. Elton i. 385 — v. Harris ii. 145 v, Heathcote i. 434, 487, 490, 497 ■ ■■ ' v. Higgs i. 46. ii.81,371, 436 — v. Higden — v. Lee — v. Litton _ v. O'Dea v. Parry - v. Pring ii. 406 ii. 402 117, 123 i. 241 ii. 47 i. 62 Browne v. Quilter v. Raindall ' v. Rhabau v. Selwyn v. Williamson Vol. Fag*. i. 31,33 i. 292 i. 346 i. 471 ii. 252 i. 19 i. 393 Browneil v. Browuell Browning v. Barton Brownsword v. Edwards i. 373. ii. 228, 239, 254 Brudenel v. Boughton i. 482, 48(3 Brudenel 1 v. Elwes i. 49, 50, 53 Bruen v. Bruen ii. 23 Brummell v. Prothero i. 475 v. M'Pherson ii. 107 Brunker, ex parte ii. 183 Brnyere v. Pemberton ii. 121,441 Bryant, ex parte ii. 455,458,468, 503, 518 v. Spike ii. 05 Brydges v. Phillips i. 475 v. Landen i. 483 Buchannan v. Buchannan i. 332 Buck v. Draper v. Fawcett Buckeridge v. I u grain i. 208 ii. 439 i. 486 of, V. i.369 i. 323 i. 333 i. 408 Buckinghamshire, Earl Drury Buckhouse v. Crosby Bucklandv. Hajl Buckle v. A ties v. Mitchell i. 216,287,326 Buckley v. Williams i. 493 Buckmaster v. Harropi. 291,302 Bucks, Duchess of, v. Sheffield ii.357 BufTar v. Bred ford ii. 90 Bufford v. Bradford ii. 87 Bulley v. Ovey ii. 180 Bullock, ex parte ii. 242,409,474 i. 495 i. 391 ii. 137 ii. 259 ii. 471 ii. 349 i. 174 v. Fladgate v. Menzies v. Richardson v. Sadliere — 's Case Bulstrode v. Bradley v. Litchmere Burden v. Burden i. 91. ii. 390 Burdett v. Rockley ii. 105, 363 Burdou v. Dean i. 375, 386 v. Kennedy i. 418 Burford, Corporat. of,v. Lenthall ii. 415,429, 551,566 NWMES OF CASES. \U v. Wheate i. 304. ii. 230 Burgh v. Francis Bink v. Brov 11 Burke v. Vicars Vol P.iro. Vol. Burgensv. Lamb i. 117 Calcot, exparte ii. >17 Calcraft v. Roebuck i. 342,361 i. 42 Callaghan v. Roehefort ii. 321, ii. 242,243 322,323 ii. 159 Callow, exparte ii. 517, 518 Uurlton v. Humphrey ii. 25,28,29 v. Mince ii. 393 Calma.lv v. Calmady i. 199,201 Cambridge v. Rous i. 307, ii.81 Camden v. iMoreton i. 33 Cam part v. ('ami. art ii. 44*2 Campbell, exparte ii. 505 v. Campbell ii. N3 Burn v. Burnaby v. Griffin Burueli v. Martin Burnett v. Burnett - v. Kinnaston v. Theobald Burridge v. Bradyl Burrow 's case v. Lock v. la inereau Burt v. Barlow Burton, ex parte ■ v/Hastinga - v. Know I ton » v. Afalvon — — — v. Matton ■ v. Pierpont Bush v. Western Bushnan v. Pell i. 517 L 361, 362 ii.2*l i. 275 i.383 ii. 357 in 94 n. 459 ii. 4-27 ii. 337 i.42 ii. 559 i. 45 i. 475 ii. 200 ii. 109 i. 501, 506 i. 140 i. 386 Bnsshell v. Bnsshell ii. 257 Butcher v.IJutcherji. 248,240,251 v. Churchill ii. 509, 5 !s > • v. Easts i. 432 v. S'tapeley i. 303 Butler, es parte ii. 403, 494 v. Buileri. 273,478. ii. 71 v. Cooke i. 322 v. Duncombe i. 401,402, 404 v. Every ii. 251 v. Freeman i. 262 Butt, exparte ii, 5 13 Butterfield v. Butter6eld i. 307 Butterworth v. Bailey ii. 288,333 • v. Robinson i. 126 Bntriche v. Broadliurst ii. 46 Buxton v. Lister ii. 427 Byne v. Potter i. ISO > v. Vivian il>. B} ties, exparte ii. 478 Cad man v. Homer i. '>21 Caft're\ v. Darby ii. 121,421, 493 Cagev Russi II i. 27 Cahill v. Shepherd i:. 20 1 v. French i. 07, ii. 270 v. Leach i. 48, 50 v. Earl Radnor ii. 73 Campion, exparte i. 427 v. Cotton i. 219 v. Walker i. 94 Cann v. Cann i. 152, 209, 324, 431 Cannell v. Buckle i. 282, 283, 288 Canning v. Hickes i. 4 Li Cant, exparte ii. 500, 501 Capel v. Gi idler i. 411 (upper v. Harris i. 296 Cardwell v. Mackrill i. 51 Carey v. Askew i. 181, ii. 47,71, 72 v. Goodinge ii. 90 Carleton v. Brightwell i. 85, ii.326 v. Menzies ii. 287 v. Smith ii. 304 Carlisle, Countess of, v. Lord Berkley ii. 194 Earl of, v. Globe ii. 409 Corporation of v. Wilson i. 69 Carlos v. Brooke ii. 321 Carnan v. Bowles i. 126, ii.2H(> Carnatic, Nabob of, v. East India Company ii. 220, 240 Carr v. Carr ii. 46 ■ v. Eastabrooke i.391, ii. 38 v. Ellison i. 35, 57,318 v . 'Lay lor i . 37 2 Carrington v. Holly ii. 298 Cairou, Heir of, v. Bark i. 425 Carruthers v. Carruthcrs i. 282, 283, 369 Carte v. Ball ii. 149 xlvl NAMES OF CASES. Carte v. Carte Carter, ex parte v. Blctsoe v. Crawley v. De Bruuc Vol. PA^e. 1. 343 i. 425, 55S ii. -21 i. 507 ii. 158 Carteret, Lord, v. Paschall i. 383, 387, 434 Cartwright -v. Ellison i. 172 v. Green i. 173 - v. Hateley i. 172, 17(5 v. Pulteney i. 199, 212 I'uv v. Abbott ii. 57 1 v. Bertie i.440 — — v. Coodinge i. 471 v. Stafford ii. 428 Casborne v. lnglis i. 303 — v. Scarfe i. 192, 413 Cassleton, Lord, v. Fansliaw ii. 1 1 Cass v. Ruddle i. 330 Caswell, ex parte ii. 507 Cathcartv. Lewis ii. 148, 153 '■ itor, ex parte ii. 510 Cut ton, ex parte ii.583 ( ator v. Earl of Pembroke ii. 105, 107 C ivan, Lady, v. Pulteney ii. 43 Cave v. Cave ii. 21 v. Hoiibrd i.280 Challnor v. Murball ii. 378 Chambers v. Chambers i. 51 v. Goldwin i. 82, 275, 435, 430, ii. 71, 131, 151 ■ v. Minchin i. 08, ii. 11,119, 122 v. Thomson ii. 233 Chamberlaine, ex parte' i. 18 v. Chamberlaine i. 253 v. Dummer ii. 174 v. Knapp i. 189 Champ v. Mood ii. 348 Champion, e>: parte ii. 548 -, v. Wiuham i. 234, ii.252 Chanrey v. Graydon ii. 28 v. Tahourdin i. 155, 171, ii. 232 Chandler, ex parte v. Beard v. Gardiner Chandless v. Price Chandos, Duke of, v. ii. 404 i. 341 ii. 497 i. 387 Talbot Vol. Page. Chandos, Duchess of, ex parte ii. 585 Chaplin v. Chaplin i. 194, 243, 290, ii. 33, 34 — v. Cooper ii. 180 Chapman v. Ansell i. 488 v. Blissett i.440 v. Bond i. 497 ■ v. Browne ii. 53, 57 v. Gibson i. 45, 55, 56, 57,58 v. Koops i. 75 v. Landsdown ii. 242 v. Turner ii. 238 v. Tanner ii. 105 Chappeaurouge v. Carteaux ii. 184 Charitable Corporation v. Sutton, ii. 113 Charles, ex parte ii. 480, 544 v. Andrews i. 493, 499 Chasman v. Charman ii. 358 Chase v. Box i. 511, 514 Chassaing v. Parsonage i. 280 Chave v. Farrant ii. 38 Chaver v. Spurling ii. 25 Chaworth v. Beech ii. 9, 11,409 v. Hooper ii. 10 Chedworth, Lord, v. Edwards i. 128 Chesslyn v. Smith i. 378 Chester v. Painter ii. 18 Chesterfield v. Jansen i. Pref. xxii. 99, 101, 208, 226 Cheval v. Nicholls i. 2G0, ii. 257 Chicote v. Lequesne ii. 555 Child v. Lord Abingdon ii. 383 — v. Gibson ii. 115, 249 Chitty v. Chitty • v. Parker Sel wyn i. 309 i. 498, ii. 111,152 ii. 205 i. 115, ii. '.'.1,22,210 Cholmondeley, Lord, v. Earl of Oxford i. 152 Christie, ex parte ii. 514 . v. Attorney General i. 257 Chumley, ex parte ii. 583, 585 Church v. Browne i. 339, 340 Churchill v. lady Hobsonii. 123 Chute v. Lady Dacre ii. 287 Cicil v. Plaistow i. 22G Civil v. Kich i. 509, 511 NAMES <>K CASKS. xlvii Vol. Page. Clanrichard v. Burk ii. 237 Clapham v. White ii. 285 Clare v. Clare i. 307 v. Wordell ii. 401,403 Clarendon v. Hornby i. -J00 Claridge v. lloare ii. 254 Clarke, ex parte ii. 61, 466, ;">N3 . v. Lord Abingdon i. 490, 401 — v. Byne — v. Capron — v. Clerk — v. Grant — v. Guise — v. Jennings — v. Montgomery — v. Pinker — v. Perium — v. Seton — v. Sewell ii. 499 ii. 592 i. 322 ii. 40, 1 1 ii. 325 ii. 368 ii. 28 ii. 334 i. 491 i.484. v. Thorpe v. Turton v. Wilson Clarkson v. Hanway Clavering's Case v. Claverinj v. Hill ( lavton v. Gresham Cleaver v. Spurting i, Cleeve v. Gascoigne Clennell v. Lewthwaite ii. 84, 85 Clerkson v. Bowyer Clifton v. Burt Clinan v. Cooke Clinton v. Hooper -<- v. Seymour ii.38,66,93, 04 i. 115 ii. 334 ii. 300 i. 213 i. II i. 24, 115 i. 325 ii. 442 ill, ii. 31 ii. 3(>7 u. 150 i. 500, ii. 95 i. 299 i. 472 i. 400 i. 282, 283 i. 101 1.321,322 •dough v. Clough Clowe v. Ballard Clowes v. Higginson Clovne, Bishop of, v. Young ii 81, 85, 80, 87, 8S, 89,90,91, 92, 312 Clutterfouck v. Smith L 493 Cockayne, ex parte ii. 581 Cock v. Ravie ii.. 183 v. Richards i. 111,232 Cockburne v. Thompson ii. 146, 155 Cockel v. Phips i. G89, ii. 25 Cocking v. Pratt i. 02 Cockraine v. Blantire ii. 427 Vol. Pa • Cockroft v. Bl... t. ,. 170 Cocks v. Worthington ii. l 2*i.» Coekshott, ex parte i. 432 (odd v. Woden i. 109 CodringtoD v, 1 ord Foley i. 398, 402, ii. 21 . v. Parker ii. 190 Coffin v. Cooper ii. 277,278, 379 Coglar v. Coglar ii. 183 Cohen v. Cunningham ii. 480 Coke v. Fountain ii.338 Cuker v. Farewell i 141, ii. 308 Colchester v. Colchester ii. 371 .Mayor &c. of, v. ii. 310,310,317 v. Low ten i. 185, ii. 430 Cold v Cole v. Corbett Gibbons v. Gibson v. Robins V. Warden Colebrook v. Jones Coleman v. Coleman v. D nke of St. i. 41 i. 97, 101 i. 227 i. 239 i.497 ii, 217 ii. 9, 11 \lbans i. 42 's Case i. 303 v. Davenant i. 201 ~- v. Tottenham i. 208, 209 Vol. Pag*. Corbyn v. French ii. 19, 50, 52, 53, 58 Cordell v. Modeu it. 80 Conlvseil v Mackarill ii. 104 Corneforth v. Geer i. 05 Cornish v. Mew i. 505 Corser, ex parte ii. 502 Cornwallis's, Lord, Case i. 495 Cory v. Cory i. 239, 245 Cotterell v. Hampson i. 35;*, 496 v. Purchase i. 20?, ii. 439 Cotter v. Layer i. 45, 294 Cottiugton v, Fletcher ii. US Cotton v. Harvey ii. 302 v. King i. 236 v. Lutterell ii. 430 Couch v. Stratton ii. 48 Conrthope v. Mapplesden i. 121 Courtney, Lord, v. Godschall i. 70 Courtown, Lord, v. Ward i. 120 Cousins v. Smith ii. 145, 178, 233 Coutsv, Pickering ii. 311 Coventry, Lord, v. Burslem i. 202 --v. Coventry i. 47,312, 320 's, Lord, Case i.294 — , Ladv, v. Lord Coventry i. 31*2 , Lord, v. Lady Coventry i. 318 Mayor, &c. v. Attorney General ii, 05 Cowell v. Simpson ii. 511 Cow per, Lord, v. Baker i. 121 v. Lord Cow per i. 259, 441 v. Clarke i. 138, 140 v. Seott i. 514. ii. 23, 46 Cowsladev. Cornish ii. 392, 395, 390 Cowstad v. Coley ii. 144 Cowtanv. Williams i. 140, 148 Cox's Case i. 13, 490. ii. 377 v. Bassett i. 4SG, 487. ii. 63 v. Bateman ii. 114 v. Belitha i. 510 v. Col ley i. 159 v. Higford i. 37 v. Quantock ii. 82 Coysgarne v. Jones ii. 214 Crabtree v. Bramble i. 290, 294 NAMES OF CASES. xhx Vol. Pajre. Vo i.321 Crutwell v. Lye i. 1:1 Craig v. liohon ii. 217 Cud v. flutter i. 205, 290 Cranbornv. Dalraahoy ii. 307 Cull v. Showell ii. 10 Crane v. Drake i. 229 Cullen v. J)uke of Queensburj Cranmer, ex parte ii. 508, 571, ii. 145 573,575 Culley v. Hickling ii. 179 Cranmer's Case ii. 37 Cutne, exparte ii. 545 Craiibtown, Lord, v. Johnston Cundall, exparte ii. 518 i. 237, ii. 302 Cunningham v. Cunuingham ii. Craven v. Wright ii. 280 373,440 Crawle v. Crawle i. 14 v. Moody i. 317 C awley v. Clarke ii. 165 Currie v. Pj «• ' ii. 95, 428 Crawshaw v. Collins i. 77, 78, Curtis v. Curtis i. 187, 10S, ii. 49-2 ii. 351 Cray v. Mansfield i. 95, 102 v. Hatton ii. 50 -v.Willis ii. 82 v.Perry i. 42, 43, ii. 102 Creagh, exparte ii. 589 v. Price i. 222, 253 v. Wilson ii. 25 * v. Smallbridge ii. 409 Creswick v. Creswick ii. 221 Curry v. Pile ii. 73 Creuze v. Hunter i. 489, ii. 378, Cusac y. Cusac i. 51 396 Cutlet v. Smith ii. 17(> v. Lowth i. 489, ii. 441 Cutt's, Sir John, Case ii. 57G Cr..'w, exparte ii. 462,476 Cutter v. Power i. 33 Cressett v. Milton i. 157 Creswell v. Byron ii. 433 D. Crickett v. Dolby i. 55. ii. 71, 72 Da Costa v. Da Costa ii. 224, 388 Crinsoz, exparte ii. 517 Dagley v. Crump ii. 290, 202 Cripps v. Tee i. 42 Dalbiac v. Dalbiac i. L77, b78. Crisp, exparte ii. 4G2, 474, 507 472 Crisp v. Perrit ii. 402 Dale v. Smithwicke i. 43 Crockat v. Croekat ii. 75, 77 Daley, exparte i. 17 Crockford v. Alexander i. 121 Daley v. Desbouverie ii. 24 Croft v. Linsey and another i. 40 Dalston v. Coatsworth i. 258 V.Powell i. 413 Dalton, exparte ii. 520 v. Pyke i. 77, 471, ii. 342 v. Carr ii. 319 Crommelin v, Crommelin ii, 29 Daniels v. Davison i. 300,363, Croinpe v. Barrow i. 49,50 ii. 10 J, 255 Cromptou v. S ; ile ii, 30 v. Ship with i. 419 Crooke v. De Vaudes ii. 83, 85 Dann v. Spurrier i. 216 Crosby v. Murray ii. 43 . exparte ii. 00 v. Wadsworth i. 207 Dauvers \. Manning i. < 7 Cross v. Andrews ii. 592 Darcey v. Hall i. 423, ii. 127 Crossing v. Scudamore i. 44 Darkin v. Marye ii. 363 Crosly v. Carrington ii. 555 Darlpy v. Darley i. 273,376 Crouch v. Martin i. 437 Darling v. Stamford ii. 315 Crowder v. Clowes ii. 74 Darlington, Earl of, v. Pulteney Crowe v. Ballard i, 213 i. 48, ii. 43, 34? Croyston v. B;ines i. '305 Darnel v. Rayney ii. 27:! Cruise v. Bishop of London Darrell v. Molesworth ii. 20 ii. 1!)2 Darwent v, VValtou ii. I 12 Cruse v. Barley ii. 110 Darwin v, Clarke ii. 299 VtOrby Hunter i. 203 Daughbigny v. Davallon ii,243 i NAMES OF CASES Vo'. Pago. Darston v. Earl of Oxford i. 468 ii. 341 Darwent v. Walton ii. 142 Dashwood v. Lord Bulkley ii. 440 v. Blythway i. 421 v. Peyton i. Pref. wit Davenhill v. Fletcher ii. 94 v. Lord Bulkeley ii. 30 Davers v. Davers 1) ewey Davidson v. Foley v. Russell ii. 301 518, 519, ii. 82, 89 ii. 3£9 i. 208 Davies v. Austen i. 435, ii. 12S Davis v. Lord Brownlow ii. 421 Davis v. Edward* ii. 90, 201 ii. 49 i. 483, 501 i. 312 ii. 170 ii. 258 i. 474, 402 ii. 520, 521 i. 27, 31 v. Gardiner v. Jones v. Lee v. St rat h more ■ v. Topp — v. Trotter v. West Davison v. Attorney Genera) ii. 263, 272 Daw v. Barber i. 324, 350 Daw" v. Lord Chatham i. 307 Dawson v. Clarke ii. 80 v. Dawson i. 82, ii. 183, 185 v. Killett «. 14 v. Parratt ii. 421 Day v. Merry j. 117 v. Newman I. 330 . v. Tri " " "• 4 Deacon v. Smith i. 312,313,481 Deaue v. Test i. 443,445, ii. 10,16 D*an of Dublin v. Dowgate i. 10 D*an v. Dal ton ii. 87 DeWenham v. Ox i. 227, ii. 430 Debese v. Mann ii. 80 De Carriere v. De Calonne ii.182, 183 Decosta v. De Pas Decosta v. S'candrett they, exparte Decks v. Strutt Decze, exparte Degge, Simon, exparte Vol. Va^e. De Golls v. Ward ii. 146 De Graves v. Lane ii. 295 Deiancy v. Wallis ii. 159 Deli Hi n v- Gale ii. 423 Delmare v.RobeHo i. 08 De Manneville v. Crompton i. 209, ii. 124 . v. De Manneville i. 202, 204, 391 De Mazar v. Pybus ii. 87 De Minckuitz v. Udney ii. 211 ii. 51,57 i. 235 ii. 540 ii. 2 ii. 511 ii. 500 Deggv.Degg i. 494, ii. 124 Dench v. Bamptoa Denn v. Russell Dennison, exparte v. IWkliu'jrton i. 122 ii. 429 i. 475 ii. 15 i. 81 i. 350 Dc-'ggs v. Colebrook ii. 288 Denton v. Skellard Denton v. Stewart. Derby, Earl of, v. Duke of Athoil i. 101, 171, ii. 240 Denvent v. White ii. 144 Desanthuns, exparte ii. 471 Desbody v. Boyville ii. 2!) Descartet v. Dennett i. 27, 32 Deschamps v. Vanneck i. 492 Detastet, exparte ii. 403 De Til Ion v. Sidney ii. 157 Deth'uk v. Carravan i. 493 Devese v. Pountet ii. 39 Devism v. Millo ii. 17, 18 Devon v. Walls i. 432 Devonshire, Duke of, v. Caven- dish i.49 Dewduey, exparte ii. 479, 503, 510 Dick v. Milligan ii. 550 v. Swinton ii. 185 Dickinson v. Lockyer i. 229 Dickes v. Lambert ii. 85, 88, 00 Digby v. Craggs i. 428 Dighton v. Green vil i. 411 Dikes, exparte ii. 588 Dillon v. Alvarez ii. 250 v. Francis ii. 130 Ditty v. Doig i. 114,125 Diramock v. Atkinson i. 389 Dinwiddie v. Bailey i. 70 Dixon, exparte ii. 485 v. Dixon ii. 340 v. Parker ii. 297, 310 Dobbins v. Bowman i. 442 Doble v. Cridland ii. 251 D'Obree, exparte ii. 487 Dobsoa v. Leadbeater ib. NAMES OF (ASKS. Vol. Patre. Docker v. Horner ii. '*54, 442 Draper v. Borlan Dodsley v. Kinuersley i. 113, 126, Drewe v. Corp 287 Dodson v. .ludd i. 177, ii. 400 Doc v. Guy ii. 2 Doe Oil dein. of Bristow, v. Pegg i. 412 of Dacosta v. Whar- ton ib. Doe v. Routledge i. 185 v. Wilier i. 48 on dim. White v. Simpson i.357 Doiley v. Sparrat i. 367 Doleraine v. Browne i. 79„ 80, 206 Dolderv.Bank ofEnglaud ii. 290 v. Lord Huntingfield ii. '227, 200, 290 — v. Hanson Drew v. Power v. Vernon Vol. J'. .'.'.■• i. 211 i. 342, 343 i. 343 l. 82, 211 n. 314 Dolman, exparte . v. Weston Donev. Peacocke Donlevy, exparte Donne's Case Donne v. Lewis i. 319 i. 470 ii.211 ii. 530, 531 ii.185 i. 474, ii. :J->1 Drinkwater v. Falconer ii. 75, 77 Drohan v. Drohan i. 230 Druce v. Denison i. 310, '370 ii. 34, 43 Drurv v. Drury i. 283,309 . v.Hooke i. 227 v. Molius i. 120 v. Mann ii. 489 Duckworth, exparte u. 474 Dudley v. Dudlev i. 4U8 Duffv. Atkirisou i. 186, ii. 430 Dumas, exparte ii. 494, 511 Duminer v. Corporation of Chip- penham ii. 129, 147 Dun v. Cotes i. 17 L Dnnch v. Kent i. 352, 433 Dnncoinbe v. Hansley ii. 150 , exp:irte ii. Ib5 Dundass v. Duteus i. 221, 298, ii. 414 Dounegal, Marquis of, v. Stewart Dungev v. Angove i. 142, 143, i. 78 -'s, Lord, Case ii. 573 Dunn v. Allen ii. 549 Dunne v. barrel i. (>7 Dunny v. hi 1 more i. 55 Duplessis, exparte Donovan, exparte Door v. Geary Doran v. Ross v. Simpson i. 229, ii. 153 Durant v. Redman 's Case ii. 569, 581, 585 Durbaue v. Knight v. Fortescue i. 72, 73, Durnfordv. Lane Dormer Dormer 74, 102, 197,198,408, ii. 225, 227, 230, 281, 349, 405 Dornibid v. Dornford i. 491, ii. 115 ii. 10S ii. 377 ii.301 Doughty v. Bull Douglas v. Clay Dove v. Dove Dow ues v. Last India Company ii. 223 v.Thomas ii. 100 Downshire, Marquis of, v. Lady Saundys i. 118, ii. 181 Dowset \. Sweet l)<>\ ley v. Powis Drake v. Robinson Drakeford v. Wilks Draper's Case Durour v. 3Iotteux Dins ley, Lord, v. inge Durston v. Sandys Duttou v. Morrison Dwyer v. Lvsaght Dyer v. Lord Craven v. Dyer — « — v. llargrave V. Timewell Dyke v. Sylvester Dyose v, Dyose i. GS i. 3C2 i. 56, 57 ii. 32 i. 255, ii. 85 Draper's Companj v. Davis i. 90, Eagleton v. Kingston 4£S Ealesr. Englaud 144, 145 ii. 397 ii. 347 ii. 412 i. 19 ii. 228 ii. 390, 421 ii. 282 ii. SI Fitzhard- i. lo5, 158 i. 134 112,431. ii. 4C4 ii. 81 i. 413 ii. 99 310, 342 ii. 430 i. 24S ii. 95 Eacl es v E. England Lade v. Lingood ii. ii. 20 337, 338 ii. 451 i 304 lil NAMES OF CASES. Vo!. Pnye. Eames v. Hancock ii. 23 Earlom v. Saunders i. 310 East v. Cooke i. 443. ii. 45 Ka-t India Company v. Bodam i. 22,23. ii.37l v. Campbell ii. 232 v. Clavell i. S26 — — — v. Donald i. 64. ii. 338, 339 v. Evans i. 109, 173 -■■ ■ — v. Henchman ii. 225, v. Neave i. 227 60. ii. 143, 227 i. 173 i. 210 ii. 428 i. 173 — v. Saudys v. Vincent East v. Ryal v. Thoruberry Eastabrooke v. Scott i. 186, 220 Easthamv. Liddell ii. 280 Eastwood v. Vinke i. 39. ii. 30, 37 Eaton r. Lyon i. 30,31 Ebrand v. Dancer ii. 99 Echiift'v. Baldwin i. 294, ii. 258 Eden's Moreton Case ii, 125 v. Foster ii. 00 -, Sir John, v. Earl of Bute ii. 374 Edgell v. Haywood i. 241 Edmonds v. Bovey i. 421 « — v. Townshend i. 389 Edmund son v. Hartley ii. 252 Edwards, ex parte i. 204. ii. 471,479,514 . v. Applebee ii. 489 -■■■ - ■ - v. Carrol ii. 410 « v. Freeman i, 34, 507, 508, 509, 510, 511, 514, 517, 518. ii. 90 •~ v. Craves i. 493 - v. Moore ii. 98 » v. Countess of Warwick i. 290, 326, 327 Effingham, Lady, v. Sir John Napper ii. 353 , Lord, v. Lord Borts- mouth Ekius v. Dormer < v. Macklish Eld.idge v. Porter Ek-ock v, Glegg ii. 406 i. 202 i. Pref, xxi ii.283 ii. 353 Tol. Page. Ellibank, Lord, v. Montolieu i. 388. ii. 140 ,Lady, v. Montolieu i.388 Elliot v. Collier i. 400, 506, 511, 512,513,514 v. Davenport ii. 19, 20 v. Elliot v. Hele v. Merriman Ellis, ex parte v. Atkinson v. Ellis v. Walker Ellison v. Airey ii. 100 i. 337 i. 228, 470, 482 ii. 456, 494 i. 378 ii. 70, 71 ii. 89 I 484. ii. 10, 131 v. Burgess ii. 278 -■ — v. Cookson ii. 79,80 v. Ellison i. 327 Elmsliev. Macauley i. 183, 229 Elton, exparte ii. 463 v. Elton i. 55. ii. 18, 71 Elwin v. Elwin ii. 14 Ely, Dean and Chapter of, v. Warren ii. 340 Emery v. Wase i. 311, 337, ii. 537, 557 Emmerson v. Heelis i. 299 Emperor v. Rolfe i. 398 Englefield v. Englefield i. 212 Entwistle v. Markland n. 69 Errat v. Barlow i. 274 Errington v. Attorney Gen. ii. 203 v, Avnesly i. 29, 330 i. 274 ii. 71 n.360 i. 417, ii. 228 Essex v. Atkins i. 378, 380 Etches v. Lance ii. 184 Eton College v. Beauchamp i. 25 Evans v. Bicknell i. 209, 409, 410,412. ii. 338 i. 98 ii. 292 ii. 185 i. 209 Evelyn v. Evelyn i. 403, 404, 477, 478, 519. ii. 23 v. Foster ii. 559, 5iiQ v. Templar i. 216 . v. Chapman v. Ward Esdell v. Buchannan — v. Cheshire — v. Cogan • - v. Evans — v. Lewellvn NAMES OF CASES. 1)11 Vol. T't.'P. Everett V. Backhouse ii. 4i 4, 544 Ewelme Hospital v. Andover i. 141 Ewer v. Corbett i. 229 Exell v. Wallace i. 401, 464 Eylesv. Ward ii. 388 Eyre's Case i. 318 Evrev. Countess of Shrewsbury i. 263, 264, 265,278,282 v.Wake ii. 574 F.ytou v. Eyton i. 258, 259 Fabrics v. Rfoystyn l'airlainl v. Enever Fairly v. Freeman Fairman v. Green Falkland, Lord, v. Bertie i. 152 ii. 433 ii. 378 i. 274 i. 35, 444 Fallows v. Wilkinson ii. 308, 402 Fane v. Bench i. 515 Farewell v. Coker ii. 434 Farr v. Newman i. 467 Fanshaw v. Fanshaw ii. 241 Farnham v. Burroughs ii. 377 Farr, ex parte ii. 502,477 Farrant v. Lee i. 119, 120 v. Lovell i. 120 Farrar v. Lewis ii. 177 Farrington v. Knightly ii. 3 Faulconberg, Lord, v. Pierce ii. 3G9 Faulder v. Silk - ■ — v. Stuart Fawcet v. Fotheraill ■ v. Gee v. Lowther Fawell v. Heelis Fawkener v. Watts ii. 578 ii. 137, 270 ii. 165 i. 226 i. 303 ii. 105, 107 i. 511,512, ii. 291 Fearnsv. Young i. 68. ii. 422 Fearon, ex parte i. 206. ii. 451 Featherstone v. Cooper ii. 557 Featherstonehaugh v. Fenwick i. 78. ii.492 Feize v. Randall i. 220. ii. 543 Fell, ex parte i. 78 v. Browne ii. 144, 150 — — v. Lutwidge ii. 333 v. Master of Christ's Col- lege ii. 101 Vol. i'< .-. Fellows v. Mitchell ii. lis Fells v. Head i. 199 Fenhoulet v. Passavant i. 499. n. 221, 222 FentOD v. Browne ii. 306 v. Hughes i. 172 Feigns, executors of, v. Gore i. 4 2 Feme, ex parte ii. 57 S Ferrand v. Prentice i. 179 Ferrur v. Ferrer ii. 221 Ferrars v. C'berry ii. 258 Ferrers \. Ferrers i, 489, 4 v. Locke Gillet v. Wray Gil more v. Severn 249, 250 i. 328 i. 357 i. 269 ii. 164 i. 114 ii. 240 i. 191 i. 203. ii. 146, 370 ii. 114 ii. 585 ii. 17 -ii. 379 ii. 160 ii. 123 ii. 287 i. 291 ii. 32i 588, 590 i. 221 n. £•* Girling v. Lee Gladwin v. Hitchman Glaister v. Hewer Glanville v. Fenning v. Payne Glass v. Oxenham Gleuorchy, Lord, v. Glover v. Bates — — — v. Faulkener ..25 4 i. 43* . 388, 396. ii. 488 i. 227 i 51 ii. ;:>:, Bosville i- 447,450 i. SC9 ii. lvi NAMES OF CASES. Vol. P.'i-TP. Glover v. Portington ii.412 v. Strothorf i. 307 Clyde v. \\ right ii. 70 Glynue v. Bank of England i. 22. ii. 324, 332, 359 Goate v. Fryer ii. 377 Goddard v. Pritchard ii. 109 Godfrey v. Boucher ii. 550 - v. Davis ii. 17 — v. Turner i. 24, 1G2 v. Watson Godwin, exparte Gofton v. Mill -' v. Sedsrwick i.420, 427 ii. 474 i. 234, 482 ii. 4U i. 323 Goman v. Salisbury Gompertz v. "i. 348. ii. 283 Gong v. Radford i. 411 Good v. Blewit ii. 145 Gooday v. Butcher i. 44 Good fellow v.Burchetti. 4G8.ii.39 Good ha li v. Harris i. 278 Goodier v. Ashton ii. 352 Goodinge v. Goodinge i. 08 ■ v. Woodhamsii. 272,284 280 Goodman v. Purcell i. 490 Goodright v. Sales i. 408 Goodtitle v. Morgan i. 255 Goodwin v. Archer ii. 217 • ■ v. Goodwin i. 55. ii. 289 • ■ v. Spray i. 123 ii. 558 ii. 39a ii. 400 ii. 219 ii. 21 ii. 304 i. 175, Goodwyn v. 4.ister Good) ere v. Lake Goold v. Tankard Gordon v. Plunket • v. Ray nes v. Rothby v. Simpkinson 202. ii. 149 Gore v. Purdon ii. 370 Gorge's, Lady, Case ii. 100 Goring, ex parte ii. 527 v. Nash i. 41, 287, 327 Gosling v. Dorney i. 473 Gosfl v. Tracey i. 208, ii. 324 Gould v. Tancred i. 425,427, ii. 410, 412 Gourlay v. Duke of Somerset i. 134 Gowland v. De Faria i. 98, 99 Graydon v. LIU key ii. 25 Graham, exparte ii. 519 Vol. Page. Graham v. Graham ii. 30 v. Londonderry i. 377 Granard, Earl, v. Dunkin i. 125 Granger, exparte ii. 500,509,540 Grant V. Barber ii. 200 • v. Jackson i. 170 v.Stone i. 4 Granville v. Duchess of Beaufort ii. 90, 91,92 Grave v. Lord Salisbury ii. 79, 81 Gravenor v. Ilallum ii. 82 Graves v. Boyle ii. 44 v. Budgell ii. 320, 301, 444 v. White v. Powell i. 209 i. 493 ii. 355 i. 180 ii. 99 i. 30. ii. 29 ii. 47 ii. 547 Gray v. Chiswell v. Mathias 's, Lord, Case Graydon v. Hickes Greatorex v. Cary Green, exparte v.Belchier i. 403,485. ii.7l ■ v. Charnock ii. 217, 218 v. Ekins i. 53, 81, 90 v. Lowes i. 132 v. Pigot i. 179, 180. ii. 14 v. P ritzier i. 279 v. Rutherforth ii. 01, 239 v. Smith i. 289, 290, 291, 325 v. Stevens i. 450 i. 350. ii. 393 i. 302 ii. 497 ii. 509 ii. 548 Greenaway v. Adams Greenhill v. Greenhill Greening, ex parte Greenway, ex parte Gregg, ex parte Gregorv. Lord Arundell ii. 210 Gregory v. Molesworth ii. 353, 354 Grey, ex parte ii. 534 v. Cockerill ii. 434 v. Kentish i. 385, 387 v. Minnethorpe i. 470 Gricev. Goodwin ii. 358 Griegnier, ex parte ii. 534 Grid Is v. Gansall ii. 315 Grier, ex parte ii. 547 Grierson v. Eyre i. 113 Grieves v. Case ii. 54, 5G HA VIES t'i CASES. I\il \ ol. Griffin v I>. Vuiilt: i 102, 124 v Nansoii i. ■-', v. Taylor i. 319 Griffith v. Griffith ii. 194,197 \. Hamilton ii. 85,86,87, 89, 90 — v. Harrison v. Rogers \ . Sprat by v. \ ere ■ \. Wood II Vo\ Grignier, ex parte Grimes \ i ase v. French i. 49 ii. 00 i. 213 i 366 n. 293, 420 ii. 525 ii. 53 ii. 139 Grimmett \. Grimmett n ~>1 G rimstone, ex parte ii. 565, 566, 582, 586, 591 — — v. Lord Bruce i 20 Groom, ex parte ii. 505, 507, 514 v. Potts ii. 530, 547 Grosvenor, ex parte ii. 517 — Sir Richard, ex parte i. 11 ■ — v. Lane i. 389 ii. 517 ii. 513 i. 11 ii. 362 i 518 i. 330 Guidot v. Guidot i. 316.ii. 108 Grove, ex parte v. Dubois Grumbleton, ex parte Guavers v. Fountaine Gudgeon v. Ramsden finest v. Homphray (juillam Holland Guise v. Guise Gulatorr, ex parte v. Dale Guralej v. Fontleroy Gun v. Prior Gunter v. Halsej Gurish v. 1)oih)\ an Gurney v. Longman Guth v. Guth Gwillim v. Stone Gwinett v. Bannister Gwyne, ex parte Gwj nne v. Heaton v. Lethbridge GyrTord, ex parte Gyles v. Wilcox - — v. Hall VOL. I. i. 405. ii.65 i. 370 ii. 457 i,\ 458 ii. 269 104, -242 i. 301,2 ii. 419 i. 124 i. 307 i. 350 i. 113 in 519 i. 37 ii. 375 i. 191 i 126 i. 428 i. 32 ii. 183 i. ! 12 i. 129 ii. 287 ii.381 i. 470, 477 i. 39,40 ii. 15 ii, 165 ii. 158 n. 252 n. 165 Haberghara v. \ incenl i. 1 1,439, 18( I la«k v. Leonard Haffej v. HarTey Hague \ . Rolliston Haigh, ex parte Hail ( . ( amp Hairby v. Emmett Hale v. Cox v. Webb Hales v. Curratt v. Slial'to v. Sntton Halfhide v. Fenning Haley v. Shaftoe Hall, ex parte i. 220. ii. 473. 57 s v. Butler v. Carter v. Daniel! v. Hall v. Hardy v. Hewer ■ v. Noyes v. Potter v. Smith v. Terry v. Warren i. 287,338. ii. 578 Hallett v. Bousfield i. 102 Hallifax v. Hi-gins i. 28 Halsam, exparte ii. 215 Halsey v. Grant i. 342,343 Halston's Case i. 41 Hambling v. Lyster ii. 14, 74, 70 Hamerton v. Rogers i. 424 Hamilton v. Denny i. 427 , Duke of, v. Lady Ger- rard ii- 301 . , Duke of, v. Lord Mohun i. 103 v. Worley i. 470. 506 Hamley \. Fisher i. 503 Hamlyn v. Lee ii. 165, 363 Hammond v. Anderson ii. 5l!> v. Douglas i.70 v. Toulmin il. 546 Hamond v. Word-worth ii. 425 Hampden v. Hampden i. 258 Hamper, ex parte ii. 467 Hampton v. Hodges i. 120 Hanaj v.M'Entireii. 177,184,185 f i. 330, 337 i. 401,402 i. 100, 3:57 i. 270 i. 310 i. 54 ii. 2(17 i.227 ii. 300 ii. 21 lviii NAMES OF CASES. Vol. Pnge. Hanbury v. Hanburv ii. 33 Hanby v. Roberts i. 408,500,502, 503 Hancom v. Allen ii. 116 Hancox v. Abbey i. 475,470 Handeock, at;-. ii. 558, 500 Han key, ex parte — — — v. Hammond v. Simpson v. Vernon ii. 548 ii. 505 i. 81 ii. 515 ii. 141 i. 480 Hanne v. Stevens Hannis v. Packer Hanson v. Gardiner i. 104, 121, 132, 130. ii. 177, 285 — — — v. Graham Harcourt v. Sherrard ■■ ■■ — v. Weymouth Hardcastle v. Chettle v. Sinithson Hard ham v. Roberts Harding v. Cox » • - v. Edge — v. Glynn ■ v. Kardins ii. 12,13 ii. 287 ii. 108 ii. 370 ii. 149 i. 53 ii. 174 ri. 354 i. 40. ii 6 ii. 224 Ilardwicke v. Myud i. 52. 496. ii. 90 -,l.ord, v. Vernon i. 206 Hardy v. Reeves Hare v. Shearwood Harqrave v. Tindal Hurland v. Trigg Harman v. Camm I!. v. Fisher Haimerv. Plane Harmood v. Oglamler Harrison, exparte Kurt v. King Kartopp v. Hartopp — — —- v. Whi'ttnore Harrington v. Du Chattel v. Wheeler Harris v. Barnes v. Da u beney — v. Harris v. Jngledew — — — v. James v. Mitchel Pollard Harris v. Tremenhere 104 i. 302 481 , 494 ii.6 i. 60 i. 432 i. 113 i. 474. n.351 ii.5I4 i. 518 ii. 34, 79 ii. 79 i. 134 i. 329 ii. 53 ii. 290 i.428 i. 55. ii. 325 ii. 200 i. 234 ii. 403 i. 95. ii. 417 Vol. P.ige. ii. 1 ii. 13 ii. 258 ii. IIS ii. 235 ii. 21 ii. 400 ii. 356 v. Southcote i. 164, 173, ii. 255 Hart v. Middlehurst i. 54, 217. ii. 255 Hartford, Mayor of, v. Poor of Hartford ii. -301 Hartjm v. Bank of England ii. 12 Harrison v. Ruckle v. Foreman v. Forth v. Harrison v. Hogg •* v. iNaylor v. Ridley v. Rumsev Hartley v. Hobsou Harton v. Harton Hartop, ex parte Hartwell v. Chitters . v. Hartwell ii. 177 i. 357 ii. 70 i. 490 i. 470 i. 132 ii.26, 27 Harty v. Shrader Harvey v. Aston v. Ashley i. 283, 284, 285, 332 ■ v. Desbonverie i. 511. ii. 46 »— v. East India Company ii. 360 v. Harvey i. 275, 376. ii. 71,72 , Sir Thomas, v. Mounta- in 359 gue Harwood v. Toc.ke Hase v. Groves Haslewood v. Pope Hassel v. Simpson V. Smithers Haster v. Weston Hastings, exparte Hatch v. Hatch Haye's Case Hayter v. Rod Hathornwaite v. Russel Hatton v. Hatton Haughton v. Harrison Haws v. Haws v Warner Ilawes v. Wyatt Ilawkes v. Saunders i. 437 i. 33 i. 57, 500, 503 ii. 432 ii. 497 ii. 211 ii.58S i. 103 ii. 453. i. 407 i. 131. ii. 189 ii. 88 ii. 71 i. 442 i. 500. ii. 31 i. 264 ii. 2 RAMI ! 01 I . JiX Hawkins, ex parte Crook v. Day v -- V. — V. Holmes Leiffh Vol ii. :{50 ii. 201 ii. 388 «. ^;!), 304 334, 336 i. 55, 57, 58 Middleditch i. 152 — — — - v. Obeen i. -J8 1. ii. 558 - v. Penfold ii. 502 v. Taylor i. 422 Haws v. Hand ii. 224 Hay, exparte ii. 518 Hoyden, exparte ii. 403 Hayes v.Hayes i. 1S9 Hayford r. Benlpws ii. 110 Haynes v. Mico ii. 38 Hoyterv.-Stapilton i. 202 Haywood v. Diinsdale i. 185 v. Paget ii- 20 v. Stillingfleet i. 114 Head v. Egerton i 250. ii. 255 v. Head i. 300. ii. 342 Heames v. Bance i. 424,481 Heard v. Stamford i. Pref. viii. Hearle v. Greenbank i. 389 ii. 41, 47 Hearne v. Barber i. 511, 512, 513 ■ v.Ogilrie ii. 201 Heath, exparte ii. 541 v. Heath ii. 15, 83 v. Pereival ii. 144 v. Perry ii. 70, 71 Heathcote, Sir John, v. Sir John Fleet i. 107 v. Paignon i. 213, 214 Heatley v. Thomas i. 377, 370 Hebbletwaite v. Cartwright i. 402 Hedges v. Caxdonel ii. v 3S{), 4-10 Hell, in the matter of'ii. 500,508, 577 Hellier v. Tarrant Helston v. Robinson Hemming v. HnnkLey Henehman v. Aver Henderson, exparte — — v. Huy — - v. Meggs Vol Henkle v. Royal Exchange Assu- Hendy v. Stephenson Heneage v. Heneage v. Hnnloeke Henegal v. Kvance i. 56 ii.201 ii. 25 ii. 145 ii. 409 i. 340 ii. 402 i. 23 i.54 il>. ii. 310 ranee Company Henley v. Phillips Hepburn v. Durand Herbert's Case , exparte i. 42 373. ii.332 n.270 i. 279 i. 424. ii. 487, 501 v. Dean and Chapter of \\ estmiuster Hereford, Bishop of, Hercey v. Birch ■ v. Dinwoody Home v. Mcers v. Meyrick Heron v. Heron Hertford, Marquis of, Hervey v. Ilervey Hesketh v. Lee Hester v. Weston Hewart v. Semple Hewitt v. M'Cartney v. Hewitt i.. 299 v. Adams ii. 58 i. 328 i. 79, 60, 206 i.9l i. 500 i.240 v. Bone i. 330 i. 4G, 50 i.285 ii. 234 ii. 272 ii. 213 ii. 134 v.Wright i. 407.ii. Ill Hewson v. Tooky Hibbard v. Lambe Hibbert v. Rollestone Hibhlethwaite's Case Hickeu v. Hicken Hiek v. Phillips Hicks v. Con vers Hide v. Hetwood Hiern v. Mill Higdenv. "Williamson Higgins, exparte v. Crawford V. Dowler u. 1 1 1 gg Hia inson s case Jpn v. Sv'ddal — v. Crawford Higham, exparte Highway v. Banner Hilbert, exparte Hildersley v. Deviscber Hildyard v. Cres^y Hill, exparte v. Adams f2 n. 317 55. 134 i. 43 i. 220 i. 58 i. 326 ii. 329 ii. 424 i. 429 ii. 489 ii. 477, 535 ii. 306 ii. 245 i. 307 ii. 519 i.422 i. 79 i.389 i. 53. ii, 40 ii. 583, 586 ii. 311 ii. 279 ii. 500, 541 i. 408, 410. ii. 151 337 lx NAMES OF CASK?. Vol. Pace. 11 V. Barclay i. 27, 01 32,232, 320 ~ V. Bishop of Exeter i. 216 — V Buckley i. 342 — V Cuillord i. 101 — V Caillovel i. 435 ~ V Chapman i. 272. ii. 10 17, 441 — V Cock ii. 110,111 — V Dawson ii. 407 — V 1 lol lister ii. 252 — V .Simpson i. 228,229 — V Turner i. 12, 14, 109, 20:} 451 i. 502 35, 50 i. 1S4 i. 332 v. University of Oxford i. 113 Hillary v. Walter i. 412 Hilliard, exparte ii. 120,479,583 Hillier, exparte llilh ard v. Taylor Hills v. Downton Hilton v. Barrow . v. Bisco.e Hinchinbroke v. Seymour i. 247 Hinchliffe v. Hinchlitfe i. Pref. xi. ii. 33, 34, 30 Hindman v. Taylor i. 177 Hinev.Dodd * i. 200 Ilinks v. Nelthorpe i. 102. ii. 232 Hinton, exparte ii. 500 Hn.ton v. Hinton i. 240, 289,292 seal — v. Pinke — — v. Toye Hitchen v. Hiteheq Hitebensv. Hitchens v. Lander H:\on v. Oliver v. Witham Hoar< v. Parker Hoath v. Hoath Hobart v. Abbott rlobson v. Trevor Hoby v. Hitchcock - v. Hoby Hodges, exparte . v. Peacock Hodgson v. Rawson Hodgeson v. Bussey kin v. Longden Hodgson, exparte v. Hand v. Lloyd ■ v. Long 1 . 94 i, 495 i . 49 i. 485 ii. 247 ii. 14 i. 254, 473 i. 107 i . 14 ii. 151 i. 38, 437 n. 218 i. 238 i. 319 i .72 ii. 2 1,22 i. 188 ii 228 i. 499, 559 i. 178 i 374 ii 519 Vol. Tage. Hodgson v. Thornton ii.334 Hodte v. Healey i. 417,238 Hodsdenv. Staple i. 412 Hoffman v. Cooke i. 186 Hoggv. Kirbv i. 124 Ho'lbeckev. Sylvester ii. 390 Holder v. Chambnrgh i. 25 Holdsworthv. Holdsworth ii. 142 Hole v. Thomas i. 122 Hoi ford v. Burnell ii. 271 v.Wood ii. 72, 91 Holland v. Culliford ii. 507 Holies v.Vyse i 28 Hollingshead's case ii. 401, 403 Mollis v. Whiting i. 302 Hollouay v. Collins ii. 97 v. Holloway ii. 443 Holman v; Audley ii. 186 Holmes v. Coghill i. 45, 47, 495 v. Cradock i. 444 v. distance i. 68 Holtscombe v. Rivers i. 71 Holt v. Frederick i. 507 v.Holt i. 91,244, 320. ii. 127 Holtzapffel v. Baker i.33 Holworthy v. Allen ii. 419 Holylaud, exparte ii. 570, 580 Honeywood v. Selwyn ii. 227, 207 Honor v. Honor i. 50, 53 Kooley v. Hatton ii. 73 Hooper v. Goodwin i. 487. ii. 110 Hope v. Clifden i. 398, 399 Hopkins, exparte i. 203,200,208 v. Bond ii. 251 v. Hopkins i. 357,393,432 ii. 112 Hopkinson, exparte ii. 518 Hopton v. Dry den i. 471 Horn v. Horn ii. 362 Home v. Lanoy ii. 523 Horniblow v. Shirley i.342 Hornsby v. Finch ii. 84,87,80,92 Horrell v. Waldron ii. 4 Horsey's Case ii. 463, 405, 543 Horsley v. Chalonerii. 15,291,292 Horwood v. Schmedes ii. 401 Hoskins v. Featherstone i. 121 Hoste v. Pratt i. 272. ii. 17 Hotham v. East India Com pain i. 333 Hough v. Willia ii. 394 NAMES OF CASKS. Hotlghton, expnrte v. Geltey Vol. Pap . ii. 101 ii. '-'AT Houson \. Earl Wilmington ii. 300 Hovendon v. Lord .Anneslcv 1.302 Hovey v. Blakeman i. 400. ii. 122, L23 Hon \. Chapman i. 481. ii. 425 v. Wilden i. 213 Howard \. Brairhuaite ii. 'J4 1 ,36G Hunter v. M'Cray ii. 185 Husband v. Husband ii. 139 v. Pollard i. 320 Castle ! (arris v. Hopkins ■ ■ v. Howard ■ v, Jem molt I low den v. Rogers Howe v. Duppa i. 257 i. 414 i. 38, 323 i. 407 ii. 493 ii, 184 185 ii. 237 i. 51 ii. 53 i. 1:4 ii.4G4 Howell v. Howell I [owse \ . Chapman J|o\ le \ . Noyles Hubbard, ex parte Huddlestone v. Briscoe ii. 337, 339,440 Hudson's, Lady, Case i. 325 ■ v. Hudson i. 471,514,518 Hugginsv. York Buildings Com- pany ii. 230,249, 120 Hughes, exparte i. 91. ii. 527 v. l)oull>en , i. 482 » v. Trustees of Morden College i. 130 v.Hughes i. 272,508. ii. 17, 197 v. Kearney ii. 105, 107 ■ v. Williams i. 427. ii. 395 Huguenin v. Baselv i- 95, 208, 224,25:3. ii. 188,301, J 75 Hulme \ . Tenant i. 37 7 Humble v. Bill i. 228 Hume v.Edwards i. 509, 511, 513, 514. ii. 94, 95 Humphreys v. IJumphrej s ii. 95, 179 Humphry v. Bullen i. 407, 508, .Ms v. Morre v. Tu\ It-ur Humpheys v. Moore Hunsden \ . ( heney Hunt v, Matthew i v. Priest v. To ii. 4-21 ii. 19, 81 ii. 423, 124 i. 211 i. 230,259 ii. 199 ii 423 Husbands v. Husbands ii. 78 1 i uson v. 1 lewson ii. 2 13 Hutcheon v. Manning ii. 14 Hutchin v. Mannington ii. 14 Hutchinson v. Hammond ii. 29 — - * v. Lord Massareene ii. 190 Hyde v. Greenhill ii. 104', 303 — — v. Hyde i. 480 v. Parrat i. 182 v. Petit ii. 163 v. Price i. -'377 v. Skynner i. •';<>:» Hvlton v. Biscoe i. 219 — v. Hvln.n i. 102, 103 \. Morgan i. 105. ii. :J0O I. Ibbotson v. Rhodes' i. 211, 339 Iggulden v. May i. 309 llchester, Marl of, exparte i. 204, 205, 268. ii. 41, :J47 Inchiquin, Lord, v. French i. 475 v. O'Brien i. 480 I nekton v. Northcotei. 382,472, 506. ii. 70, 71 Inglet v. Vaughan ii. 360 Ingram v. .Mitchell ii. 315 Iuham v. Monice i. 410 Innes v.Jackson ii. 143 v. Johnson ii. 9 v. Mitchell ii. 14, 15 Inwood v. Twyne i. 20!) Inland v. Kittle i. 309 Irish V. Rooke ii, 280 Irnhani v. Child i. 60 Irod v. Hurst u. 79 l^aae v. De 1'riez ii. 50 v. Gompertz ii.443 v. Humpage i. 112. ii. 285 lth. 11 v. Beane ' i. 56, 327, 352 Ives \. Medea lfe i. 370 i .i v. Harris i. 12, 13, 104 Ivie \ i. 188 Ivy v. Gilbert i. 40;j, 40!, 485 — v. Kckew ich i. 100 J. Jackman v. Mitchell i. 185, 1^' ; . 226. ii. 124 Jxii vames of case?. Jackson, exparte v. Butler v. Cat or v. Eyre ■ v. Ferrand v. Jackson -- v, — V — V — V I evef Petrie Purnell Rawlins v. Saunders Hall Jacob v v. Shepherd Jacobs v. Amyatt ■ v. Ooodman Jacobson v. Williams Jaroinbv. Harwood James, exparte v. Dore v. Keymier v. Oades Janson, Sir Thos. ?. Kaney ii. 338 Jason's, Sir Robert i. 100 v.Jervia i. 219 Jebb v. Abbott i. 490 Jewries v. Harrison ii. 423 • v. Renons i. 398 Jeffreys v. Jeffreys i. 273. ii.75,/7 Jeffs v. Wood ii. 36, f>04 Jenkins v. Hvlesi. 344, 345,349. ii. 103 Vol. P.-12-r'. ii. 472, 509 i. 187 i. 211 ii. 429 ii. 21 i. 273, 48a. ii. 85,110 i. 291 ii. 184 ii. 295, 297 ii. 153 i. 33 ii. 272 i. 432 i. 307 ii. 209 i. 385. ii. 492 i. 229 ii. 478 ii. 402 ii. 512 i. 415 Jennings v. Looks i. Wi v. Merlon Coll. v. Seilick Jenour v. Jenour in 22 22 ii. 290 i. 210 ii. 439 Jern'mgharn v. Gla6S ii. 180 Jerrard v. Saunders i. 170, 409. ii. 137,250,200 Jervoise v. Duke Jervis v. Bruton v. Duke v. White ISO. n. 2o i. 187 i. 208 ii. 200 ii. 33 ii. 204 Bloom i. 71. 123. ii. 1 .'con v. Ru R h ii. 113 Jewson v. Moulson i. 380, 387 Johnson, exparte ii. 520,521,541, 559 Jesson v. Jesson Jessy p v. Duport Jesus Coll. v Johnson v. Browne v. Cnrtis - v. De la Craze - ■ - - v. Johnson v. Medlicott v. Northey v. Nott v. Ogilby v. Peck — i v. Twist Jolland, ats. Vol. Vipe. ii. 417 i. 82 i.180 ii. 96 i.238 ii. 408 i. 323 i. 325 ii. 399,400 ii, 90 ii. 193, 196 i.201 i. 471 ii. 426 ii. 473,477 ii. 175 ii. 184 ii. 451 i.444 ii. 48, 49 ii. 415 ii. 200 430. d.496 i. S80, 381. ii. 344 - v. Jones i. 3 10. ii. 142,143, 289, 405 v. Stainbridjre Jolley v. Cower Jolliffe v. East Jones, exparte _J v. ■ ■ — -- v. Alephsin — v. Bougett -- v. Colbeck — v. Collier — v. Coxeter — v. Davis — v. Cibbons • - v. Harris -- v. — v. - v. Juke? - v. Langhtori - v. Lewis .- v. Marsh - v. Martin Mitchell Morgan -v. Pawlett - v. Pengree -v. Pugh - v. Price - v. Roe - v.Sampson - v i. 408 i. 51 ii. 119 i. 219 i. 244 ii. 308 i. 01, 440 ii. 209 ii. 237 ii. 191 i. 330, 331 i. 437 ii. 184 Earl of Strafford i. 482. ii. 225,280 v. Suffolk ii. 25, 29 v. Thomas ii. 250 v. Tuberville ii. 3-30, 337, 340 v. Williams ii. 56 Jordan v. Saw kins ii. 235 Jortin, exparte ii. 59 Jury v. Cox i. 28, 413 Joseph v. Doubleday ii. 283 v. Mott i. 4C8 NAMES OF CASES. Ixiii Vol. Pa',". Vo'. r. Jos y, Campbell \\. 122, 123, 233 Kingston v. Clarke i. 180 Joynes v. Statham i. 321 v. Miller i. 86 Judd v. Pratt n. 43 Kinchant v. Kinchant i. 245 Kinder v, Jones i- 121 K. King, exparte i. 11. ii. 471, 478. Kaiu v. Hamilton i. 34 485, 510, 523, 53H, 563 Hampshire \ . Young i. 234 v. Brewer i. 308 Kaye v. Boulti n ii. 522 v. Cnvi-w ii. 447, 449 Kebble, ex parte i. &74 v. Del aval i. 379 Keeble v. Thompson ii. lis v*. Dennison ii. 84,88,111 Keeling v. Browne 1.483,500 v. Hake i. 308 Keenv. Stuckley i.329 v. Lord Huusdon i. 258 Keighley v. Browne ii. 21 1 v. King i. 57, 183, 425 Keiley v. Monk ii. 1, 20 r.Wightman ii. 372 Keith, exparte ii. 529 v. Manissal i. 418 Kellsall v. Ben net ii. 256 v. Martin i. 100, 169 Kelyway v. Kelyway i. 517 v. Smith i. 409 Kemp v. Mackrell ii. 305, 400 v. Wightman i. 309 v. Squire ii. 357 v. Withers ii. 22 Kempe v. Antill i.203 Kingeotev. Bainsley ii. 292 . v. Kempe i. 24S, 249, 250, Kingdon v. bridges ii. 101 251 Kinnersley v. Simpson ii. 242 v. Prior i. 180 Kinsey v. Kinsey ii. 329 v. Squire ii. 358 —v. Yardley ii. 170 v. Westbrooke i. 4li> Kinsman v. Barker i. 82 Kendall, exparte i. 203. ii. 532 Kinworthy v. Allen ii. 278 Kendarv. Milward ii. 125 Kir by v. Potter ii. 10, 11,04 Kenebel \. Scrafton ii. 424 Kircudbright, Lord, v. Lady Kir- Kennedy v. Daly ii. 103,104 cudbright i. 513 — v. Stainsby ii. 88 Kirk, ex parte ii- 409 Kennel v. Abbot ' ii. 110 v. Clarke ii. 141 Rennet, ex parte ii. 542 v. Kirk ii. 315 Kenrick v. Clayton ii. 211 v, Webb ii. 98 Kensington* ex parte ii. 403 Kirkby v. Ravensworth Hospital Kent, exparte L207,27l ii. 129, 550, 551 v. Bridgman i. ' •"> Kirkham v. Chadwick ii. 127 Kent ii. 401 — — . — v. Smith i. 302 Kentish v. Kentish i. 4S4 . v. Kirkinan i. 371 Kenyona v. Worthington ii.377 v. Milles ii. 109 Kerrick v. Barnsby i. 206 Kirkpatrickv. Love ii. 395 Kerry, ex parte ii. 478 Kitehin v. Bartsh ii. 406 Kettle v. Townsend i. 55 Kittear v. Raynes ' ii. 509 Kettleby v. Atwood >i Knapp v. Williams ii. 53 Key v. Brads haw i. 236 Knight \. Cameron ii. 29 Kidney v. Coussmaker i. 57, 50, v. Duplessia i. 117, 184, 220, 221, 473, 481, ii. 42, 111 ii. 191 Kightley v. Kightley i.55,500 v. Knight ii. 153 Kildare, Earl of, "v. Sir John v. Maclein i. 490 Eustace ii. 163 v.Jfoseley i. 120. 121 Countess of, v. Hobson v. Lord Plymouth ii. 1°0 1.433 198 Killiwrew v. Killigrew ii. 24l Knollys v. .Alcott n. 143 Kilmurry's, Lady, case ii. 27 Knott, exparte i. 422, 424. ii. 259 lxi V \ iMES OF CASK.-. Vo!. Page. Knowell, exparte ii. 51(> Kuoulesv. Broom ii. 170 . v. Haughton t 75 Knox v.Browne ii. 207 v. Si mm on ds ii. 204 Kock, ex [jaite ii. 548 Koningsby, Lord, v. Sir J. Jekyll ii. 100 Koops, ex parte i. 17 L. Lacon v. Briggs i. SO v. Mertinsi. 291. 301, 303, 30-1, 504 i. 01, 92 i.282 ii. 24'>, 24 (i i. 198 ii. 200 ii. 312 ii. 102 ii. 133 ii. 180 ii. 102 ii. 02 i. 417 i. 377, 385 ii. 11 i. 231,2 34 i. 433 Vol. Page. Langley v. Browne »• 42 : — - v. Lord Oxford i. 4:J0 Laugston, exparte i. 428 L v. Bovlston i. 142, 143, Lanoy v. Duke of Atholl i. 203, 275. 477 Lansdowne v. Elderton ii. 270 v. Lansdowne i. (il ii. 351 i. 495 Lathrop v. Marsh i. 133 Lasliley v. Hogg Lassels v. Cornwallis Lace} , ex parte v. Moore Lacon v. Briggs v. Mertms Lake ats-— v. Causefield v. Craddoek v. De Lambert v. Decon v.. Gibson v. Lake v. Thomas Lamb v. Milnes Lambert v. Lambert Lam lee v. Hannam Lampet's case Lampltighv. Lamplughii. 99,100 - v. Smith i. 89 Lancaster, Amicable Society of ii. 501 Lanchester, exparte 1 and v. Devaynes I u. down v. Elderton Lane, exparte v. Dighton v. Iloblis « ■ v. Newdigate v. Wiiliams ii. 457 ii. 78 ii. 383 ii. 473 ii. 125 ii. 374 i. 130 ii. 179 ii. 444 ii. 2<;8 ii. 119, 122 i. 291, 349 tiny i. 384 . v. Sandm.^ ii. 87, 81), 92 Lan^taffv. Fenwick i. 00, 427 v. Taylor ii. 432 Lane's Case Langdale v. Langdale Langford v, Gascoyne v. Pitt Latoueh v. Lord Dunsany i. 421 Laundy v. Williams ii. 18, 19 Lavender, exparte ii.472, 520 Law v. East India Company i. 191 v. Law i. 180, 227 Lawley v. Hooper i. 204, 208,214 241,410 Lawlor, Lessee of, v. Murray i. 15 Lawrence v. Blatchford i- 400 v. Butler i. 335 Lawson v. Barker ii. 152 v. Lawson ii. 4, 88, 89 v. Stitch ii.7, 75 Lay ton, exparte ii. 4G7, 409, 470 Leach v. Deane i. 320 Leacroft v. Maynard i.487 Lead better, ats, ii. 280 Leake v. Morris i. 304 Leaverland, exparte ii. 544 Lechmere v. Lord Carlisle i. 289, 290, 312, 327 i 397 i. 313 i. 320 ii. 509 ii. 382 ii. 275 ii. 479 i.70 ii. 128 i. 313 v. Charlton v. Lechmere V. Lewis Le Cornpte, exparte Ledwich, exparte Legard v. Sheffield Lee, exparte v. Alston — v. Brown v. Cox v. SirRobt. Henley i. 23,41 Lee Muggridge Pascoe Prieaux Wallwyu Warner Willock Leech v. Leech 392 i. 377 ii. 270 i. 370 i.412 ii. 402 ii. 340 ii. 70 \.\ MES OF f'ASKS. lxv Leeds, Duke of, \ Vol Pa ? e. l.onl Radnor i. 25. ii. 351 Lurl ofStraf- i. 26 ii. 504 ii. 507 ii. 475 ii. -LA i. 323 u 291,312,315 i. 309 i. 30:2 i. 52 ii. 455, 470 .. 22G i. 251 ii. 123 i. -){;-) w. 145 i. 17 i. it ford Leek, exparte Leers, exparte Lees, exparte L'Fit v. L'Batt Legal v. Miller Legard v, Hodges v. Joliusou Legate \. Sew ell Legg v. Goldwiae l.i icester, exparte v. Ixo^e Leife v. Saltinystone Leigh v. Barry v. LutkiQs v. Thomas Leighton's, Co!. Case . v. Leightoni. 72,141,142 Leman, exparte ii. 535 v. Newnham ii. 156,163 Lempster, Lord, v. Lord Porafret i. 168, 189 I.erich v. Lcnch i. 312. ii. 98, L25 LeNeve \. LeNevei. 2C0. ii. 338 Leonard v. Ansel! ii. ISO v. Leonard ii- 238, 252, 265, "207, 269 • v. Earl of Sussex i. 450. ii. 110 I.e Texier v. Margravine of Ln- ii. 147 ii. 33 i. 4. 485 Lin gen v. Sowray i. 290,291 ii. 382 ii.521, 523 i. (i(i. -r.A ii. 252 i.415 ii. 192 ii.528 i. 91, 1)3 ii. 533 .. 15 ii. 92 ii. 116 i.. 290 5, 508 — v. Baldwin i. 352,353,490 v Cardy ii. 18-3 v. Collett i. 329, 348 v. Griffith i. 339 v. Joluies ii. 140, 407, 408, v. Jones i. 353 v. Loaring i. 191 . ii. 145 v. v. V. V. Lingham v. Sturdy Lin good, exparte v. Croucher \ . Eade Linguet v. Sea wen Lindsey ats. — Linthwaite, exparte Lister v. Lister Litchfield, Earl of, in re. Lit! le, expaite Littlelmry v. Buckley Li ttle hales v. Gascoyue Livesey v. Wilson Lloyd, exparte i. 4 Maejcworth Makearn •el! Passinguain Posvis ' Rattray Read ui. 99, 100, l! Scott Spillett i. 191 ii. 317 i. -237 u. 188, ii. 400 ii. '1A Stoddart Tench i. 20 i. 355. ii. 98,108 i. 407 517. 510 Williams i. 488, 500. n. 65 Lobb, exparte Lock v. Bromley v. Lock Lockey '^ . Lockey Loci- yer v. Savage ii. 439 i. 195 i. 74,303 n. 50(i IXYI SAMES OF CASES, Vol. Page. Lodge and Fendall, Assignees of, exparte ii. 4<>7 Lokerv. Roke ii. 227 Lomax v. Lomax i. 274 London Assurance Company v. East India Company ii.273 v. Hankey ii. 4-3 1 London, Bishop of, v. Fyt< lii. 173 ,v. Webbi. 120 , Mayor of, v. Bolt ii. 301 ■ -, v. Levy i. 103,173 -,City of, v. Mitford i. 336 , v . Nash i. 320, 324 -• , v. Richmond i. 336 Lonergan v. Rokeby Longv. Burton ii. v. Lamina ii. 217 294, 316, 327 i. 435 ii. 70 ii. 8, 96 ii ii 120 270 v. Long • v. Short v. Steward Longman v. Ca Hi ford Lonsdale v. Church ii. 113, 117, 118 — -, Lord, v. Littledale i. 234. ii. 555 Lord, exparte ii. 175 Lothian, Marquis of, v. Garforth ii. 270 Love v. Lovedon v. Milford Lovel v. Lancaster Lowe v. Barchard v. Leesh v. Morgan Lo.wndes v. Collins v. Lowndes Lowson v. Copeland Lowther v. Andover V. Carlton i. 370 i. 153 i. 477 186,213 i. 334 i. 12') i. 491 ii. 71 ii. 123 n. 349 i. 171 ii. 104,27;, 1 v. Car rill v. Condon v. Hamper v. Lowther v. Ray Lowthian against Hassel Lloyd v. Mar — — - v, Spillett i.336 ii. 22 ii. 170 i. 91, - I i. 142 ■ ii. 421 Lubiere v. Geriam Lucas v. Cal croft v. Commerford v. Evans v. Lucas v. Temple v. Wilson Vol. P.iS". ii. 31)4 ii. 430 i. 320, 430 ii. 231 ii. 272 ii. 300 ii. 555 ii. 590 ii. 582 Ludlam's Case Ludlow, exparte i. 265 Luke, Parish of, v. Parish of St. Leonard, Shoreditch i. L39 Lund, exparte ii. 451, 477, 571 Lupton v. White i. 83. ii. 333, Lurgan v. Bowen Lush v. Wilkinson Lutkins v. Leigh Lutterell v. Reynell Lutwyche v. Lutwyche v. Win ford Luxton v. Stephens Lyclclel v. Weston Lydiat v. Sir John Foach Lyifard v. Coward Lyggon v. Strutt Lyne, exparte Lynn v. Willis Lyon v. Chandos v. Dmnbell Lyre v. Parnell Lyster v. Dolland Lyttleton, exparte Lytton v. Lytton 300 ii. 376 220, 221 i. 500,' 506 ii. 204 i. 514 i. 353 ii. 426 i. 347 ii. 02 i. 25 i. 85 ii. 582 ii. 353 398, 402 ii. 295 ii. 425 i.76, 418, 497 ii. 591 ii. 410 i. M. Mabank v. Metcalfe Maberly v. Turton Macclesfield, Earl of, v. Fitton ii. 342 i. 272 v. Blake ii. 383 i. 436 i. 380 i. 348 ii, 591 57, 58 Maccormic v. Boiler Macdonald v. Hanson Macdougal, exparte v v. Shurmer i Macher v. Foundling Hospital i. 34 Machin v. Salkeld Mackenzie v. Mackenzie v. Robinson Mackerness, ex parte ii. 574 i. 27 i. 419 ii. 472 NAMES OF CASKS. lxvil Vol. Paje. Mackintosh v. Townsend ii. 50 Macklin against Richardson i. 12"), 12G Macleod v. Drummond i. 229 Mackreth v. ^Iurlar . v. Swumon6 ii. 418 i. 180 ii. 100, 100 Macnamara v. Jones i. 57, 187, ii. 131 Macqueen v. Forquhar i. 240, 342 ii. 428 Macauley v. Philips i. 380, 388, 389, 390 Maekworth's, Sir Humphrey's, Case i. 5t85 — v. Brings ii. 222 v. Clifton ii. 240 • ■ v. Thomas i. 400 Macreth v. Symonds i. 409, ii. 257,418 Macwilliams, exparte ii. 504,530 Maddison v. Andrews i. 249,250. ii. 1:3 Madox v. Jackson ii. 153 v. Maddox ii. 257, 311, 340 Magrath v. Lord Muskerry i. 34 Maguire v. Allen "ii. 188 Maine v. Melbourne i. 304 Mai re, ex parte ii. 559 Maitland v. Wilson ii. 237 Makeham v. Hooper i. 502 Malcolm v. Martin ii. 66,69, 70 ii. i.50 ii. 353 ii. 417 ii. 332 i. 197,198 i. 470,483 Mansrlemaa v. Prosser ii. 290 Manlove v. Bale and Brnton i. 427 ii. 23 Maliu v. Keighley Mallabar v. Mallabar Mallach v. Galton Qfamel v. Bowles JMjiii v. Ward Manaton v. Squire Maugham v. Masson Vol. Pa?e. Markham v. Wilkinson ii. 170 Markland, exparte ii 504 Marlborough, Duke of, v. Lord Godolphin i. 439, 44:). ii. 19 v. Duch< Marlborough ii. 223 , Duchess of, v. Sir Thomas Wheat ii. 387 Marlow v.Smith i. 341,345, 364 Marriott v. Hampton Marryat v. Towuley Mursden v. Bound . v. Panshal .Marsh v. Evans exparte -- v. Howe — v Lee Maiming v. Herbert v. Lechmere v. Snootier — exparte I. 04 i. 459 ii. 203 i !..) ii. 92 ii. 312 i. 421 ii. 255 ii. 3 I 2 i. 55 ii. 465, 475 ii. 362 i. 4G9, 470, ii. mi ii. 583 ii. 37, 89 i. 214, 21 G i. 296, 2:51 ii. 329 ii.288 ii. 117 i. 378 i. 78 ii. 242 i. 480, t ii. 73,94 Matthews, ex parte ii. 517 v. Bishop of Bath and Bristol Well* i. 260 ■ v. Curtwright i. 423 v. Matthews ii. 37, 38, 39 v. Stockdale i. 120 v. Stubbs ii. 383 v. Wallwyn i. S2, 43G V. Warner ii. 451 Marshall v. Frank Marsh field v. Weston Marston v. Gowan Martin, ex parte v. Kerridge v. Martin Marton, ex parte Mascall v. Mascall Maskeen v. Cote Mason v. Armitage v. Gardiner Massareene v. London Massey v. Davis Master v. Fuller v. Kirton Masters v. Bl'liet v. Masters Mum ell v. Mensell i. March v. Head M.i re, e\| .arte Margerum v. Sandiford Margrave v. Lady Hooke i, 425 11. (M»2 i. 474 Maundrell v.Maundrell i.498,410 ii. 380 Maw v. Harding i. 519 393, 394 Mawer v. Mawer ii. 109 i. 388 Mawson, exparte ii. 543 ii. 500 Mawsou v. Stack i. 226 i. 4*9 Maxwell v. Phillips ii. 171 txviii NAMES OF CASE.v Vol. Pasrc. Maxwell r. Wettenall i. 488 ii. G5, 07 May v. Lewen ii. 89 ■ v. Wood ii. 18 Maybank v. ISiooks ii. 19 Maylin v. Hoper i. 473 Mayne v. Hochin ii. '294 Mead v. Lord Orrery i. 228, 42G ii. 193 v. Webb i. 21 1 Meudovvs v. Duchess of Kingston ii. 248 Meaghan, ex parte i. 220 Meal v. Meal i. ION Meastair v. Gillespie i. 43, 252, 253 Medlicott's Case ii. 479 v. O'Donncl i. 205, : ... Medly v. Martin i. 363 Meers, Sir Thomas, v. Lord Stuur- ton ii. 261 Meeres v. Ainsell i. 322 Meliorucchy v. Meliorucchy ii. 217 Mellish v. Da Costa i. 260, 267 v. Mellish i. GG, 272,443 — v. Williams ii. 410 Mellor v Lees i. 415 Mendes v. Mendes i.265 Mentii v. Payne ii. 313 Mentney v. Petty i. 517, 519 Menzeyv. Walker i. 47, 250 Mercer v. Hall ii. 26, 30 Meredith v. Wynn . i. 331 Merevvether v. Mellish ii. 220, 239,406,434 Mertins v. Joliffe ii. 257 Metcalfe v. Beckwith i. 202 v. Harvey i. 114, 145, 14o, 148, 170 _ v. Ives i. 65, 405 v. Pulvertoft i.21G ii.188 Meymot, exparte ii. 363, 524 Michell, exparte ii. 505 Micklethwaite v.Calverly ii. 236 Middlecorribe v. Marlow i. 220 Middleton v. Cator ii. 55 , v. Clitherow ii. 5(5 v. Dodswell u. 188 v. Messenger ii. 17 . v. Suiter ii. £5 Vol. Pag;*; Middleton v. Lord Onslow i. 226 Mi I bourne v. Fisher Mildmay, ex parte v. Hungerford v. Mildmay Miles v. Lingham Mill v. Mill ' Millard v. Eyre Miller v. Miller ■ ■ v. fteare ■ v. Warren Millet v. Rouse Milligan v. Cnoke Millner v. Colrner 31 ills, exparte Mills, ats. v. Banks i. 70 ii. 583 i. 611 i. 392 ii. 1G7 ii. 320, 321 ii. 133 ii. 45 ii. 4G0, 523 ii. 19 i. 281 i. 342 i.384 ii.5-18 ii. 555 i. 404 ii. 305 ii. 280 — - — v. Handson Milner v. Golding v. Lord liarewood ii. 320 v. Milner i. 00 Milnes v. Busk i. 377 v. Gery i. 337,338 v. Slater i. 444, 474, 475 Milsington,Lord, v. Earl of Port- more ii. 156 Milward v. Earl Thauet i. 330 Minor, ex parte ii. 380 Minshull v. Lord Mohun ii. 401 Mitchell, ex parte ii. 537, 538 's, 31 . Justice Case i.278 v. Bower ii. 70 v. Dors i. 121 — > v. Draper ii. 165 v. Harris i. 237. ii. 252 Mitford, exparte ii. 505 v. Mitford i. 372, 382, 383,385,387. ii. 487,489 Mithwold v. Walbank L334 M'Mahon v. Sisson ii. 295 Moccato v. Lonsada v. Murgatroyd Moeber v. llec(\ Moffat v. Farquharson Mogg v. Hodges v. Mogg i. 2-18 i. 256 ii 423 ii. 280 ii. 145 i. 502, 505 i. 120 Moggridge v. Thackwell ii. 20> 57, G3, 73, 42o Mole v. .Mole ii. 71 Molesworth v. Molesvorth ii^ 13, 14 NAMES OF CASES. lxhc Melineux v. Luard v. Powell Molloy v. Irvin Mondrey v. Mondrey Vol. Pn-p. ii. 285 I. 122 i. 241 I!. •'■/I ii. 231 Monuins v. Monnins Montford, Lord, v. Lord Cado- S»fi ii. 1 13, !27 Monk v. Lord Monk ii. 79,80 Monkhouse v. Corporation of Bedford ii, ;>75, 876, 877,437 ' — \. Holmes ii. 12, 13, 14 Montacute v. Maxwell i. 297,8 Monteith v. Taylor ii. 290 Montgomerie v. the Marquis of Bath i. 4-20 Moody v. Steele ii. 'in.') - v. Walters i. 395, 396 Moor v. -V\ elsh Copper Company ii. 250 Moore v.Aylet ii. 331 v. Bennet ii. '2.">7 v. Foley i. 309 • v. Macoamara ii. 151 v. Meynell ii. 186 v. Moore i. 2~8, 392. ii. 45, 64,406,410 Morecock v. Dickens i. 200. Mordaunt v. Hooper v. Hnssey v. Thorold More, Sir Richard, v Scarborough Mores v. Huish Moreton v. Tmville Morgan, exparte v. Scudamore ii. 25? ii. 192 ii. S7 i. 107 Earl of i. 392 i. -178 ii. 291 i. 4-0 i. 135. -- v. Hani — v. Mather — v. Slaughter ii. 388, 399, 400 ii. 228 ii. 506 i. 340 i. 299 ii. 57 8 Morison v. Tumour Morley, exparte Morouey v. O'Dea i. 420. ii. 423 Morrei v. Paslce i. 422, 423 Morrice v. Bank of England i. 50">. ii. 355 v . Burrough i. 326 v. Hankey ii. 181 Morris, exparte ii. 54S Vol. P.u'c. Morris v. Lessees of Lord [;. ley i. 129 - v. Bishop of Durham ii. 57, SO ■ v. Burroughs i. 390. 405, 513. ii. 31, 40,46 v. Dillingham ii. 490 v. Elme ii. 107,198 v. LeNeve ii. 409,411 ■ v. M c Cullo( k i.228 v. Stephenson i. 310,311 Morse v. Beck with i. l<>8 ■ v. Faulkener i. 12 v. Roach ii. 312 v. Royal i. 94. ii. 336 Mortimer v. Capper i. 03, '215, 324 v. Davis ii. 101 v. Orchard ii. 339 Mortlockev. Buller i. 188,204. 321, 328, 342, 349 Morton, ex parte ii. 510 Mosely v. Virgin — v. Ward Mossop v. Eadoa Moth v. Atwood v. I'rouie 1.320 ii. 116 i. 22 i.213 ii. 489, 492 Motteux v. Mackreth ii. 317 Moule, exparte ii. 4( S, 473 Mounstuart v. Mounstuart i.264 Mountague, Lord, v. Dudman i. 161 — v. Lord Sandwich i. 221 i. 44, 207, 272. ii. 188 i. 108 ii. 102 i. 333 Monntford, exparte v. Tavlor Moj st- v. (Jiles Moyses v. Little Mucklestone v. Browne i. 175. 240. ii. 89, 137,139,227 Mulvauy v. Dillon ii. ol7, 342 Mumma v. Mumma ii. 99 Munday against Earl Ilow i. 272 Munday i. l!>7 Murat v. Gorden i. 437 Murphy, exparte i. 220. ii. 502 Murray v. Lord Ellibank i. 3S8, 389, 390 v.Shadwell ii. 214 Muscottv. Halhead ii, 222 Musgrovev. Dashwood i. 292 ixx STAMES 01' CASES. .Mussel v. Morgan N. Vol. Page. i.237 Nairn v. Prowse Nandick v, Wilkes Nan nock v. Hoi ton Nantes v. Coi'roek Napier ii. 100 i. 51 i. 480 i. 377 v. Lady Efhngham ii. 354 T-'aylor v. Taylor Neale, exparte v. Nonis v. Wadeson ii. 295, 296 ii. 582 ii. 200 ii. 222 Neave v. Nottingham ii. 487 Need ham v. .Smith ii. 323, 440 Needier v. Deeble i. 428 Neil so n v. Cord ell ii. 294 Nelson v. Old held i. 207 Nelthorpe v. Pennyman ii. 384 Nerott v. Wallace Nesbit v. Tredennick Nevarre v. Rutton Neve v. Weston Neville v. Saunders • v. Wilkinson H.522 ii, 120 i. 75 ii. 250 i. 357 i. 209, 233 Newburgh v. Uickerstafi i. 74 -, Earl of, v. Wre»i. 100. ii. 250 Newcastle., Duchess of, exparte ii. 563 N< wcom.be v. Ronham Newhouse v. MilbanE r- v. M it ford Newland v. Champion Newman v. Barton v. Cartooy *~" v. Godfrey r ' ■ v. v. i. 415 i. 12 ii. 374 i. 229. ii. 153 ii. 90 i..'!8l ii. 207 ii. :<7S i. 483 ii. 45 94, 90 i.330 i. 104 Hodgson Johnson " v. Newman » ■ v. Payne - 1 ■ ■ ■ ■ v. Rogers v. Wallis New River Company v. Graves i. 138 Newsham v. Gray i. 113. ii. 418 Newstead v. Johnston ii. 85,80,88, 89,90 ■ — v. Searles i. '222 Newton, exparte ii. 534 , v. Bennett i. 494. ii. 120 Vol. Pa^e. i. 39 ii. 270 ii. 391 06. ii. 555 i. 215 i.409 ii. 174 ii. 71 ii. 38 i. 63 i. 28 i. 24 ii. 310 i. 196 89,91,183 i. 191 Nobkissen v. Hastings ii. 220,236 Nockhold, exparte ii. 532 Noel v. Iveson i. 303 v. Robinson i. 230. ii. 96 Norcott v. Norcott ii. 438 Norfolk's, Duke of, Case i. 360, 393 — — ~— , — .— -, v. Browne ii.113 Normanby, Marquiss of, v. Duke Newton v. Rowse Niceol v, Wiseman Nicholls, exparte — v. Chalie i. v. Gould --- v. Howe v. Kearsley " v. Osborn - — v. Judson v. Leeson v. Maynard Nicholson v. Pattison Nightingale v. Dodd ■• ■■■ ■ v. Law son Nisbet v. Murray ii. v. Smith of Devonshire Norris v. Bacon v. Kennedy ii. v. Neve v. Wilkinson Noseworthy v. Bassett North v. Ansel! v. Champernon , Lord, v. Purdon v. Far! of Strafford v. Way Northcote v. Duke Northltiirh v. Luscombe i. 287 ii. 434 177,211 i. 26 i. 429 ii. 275 i. 216 i. 361 ii. 87 i. 25 i. 361 i. 37 ii. 206 ii. 582 ii. 21 Northlike, exparte Nortlieyv. Strange Northumberland, Earl of, v. Earl ii. 31 i»74 i. 338, 440 i.513 of Aylesford Norton v. Frecker v. Mascall v. Norton v. Turville i. 378. ii. 208 Nott v. Hill i. 89, 98, 100 Nourse v. Finch ii. 88, 90 Novosielski v. Wakefield ii. 377 Now Ian, exparte ii. 523, 524 JL-VMF.S OF CASES. ixxi \ .1. Page. Noysoialioad Ship, Case of, i 13, 14 Nugent v. (I y fiord i. 2*28 Nurse v. Groom ii. 2 Nutbrowne v. Thornton i. 131, 199, 296 0. Oates v. Chapman Li. 417, 430 O'Brien v. O'Brien i. 119 .O'Connor it. 410 O'Calagl an i . ( looper ii. 30 Ockenden, exparte ii.-">ll O'Connor v. Cooke ii. 304 ■ — v. Spaight i. 69 <)'[), a v. O'Dea ii. 434 Odell, exparte i. 208 Ogilvie v. Hearne ii. 218, 351, 409, 444 Ogle, exparte ii. 572 's Case ii. 530 Ogverv. Haywood i. 15 O'llara v. O'Neal ii. 98 O'Herlily v. Hedges i. 300, 333 Oke v. Heath ii. 19, 20 Okeden v. Okeden i. 404 O'Keefev. Calthorpe ii. 134 v. Casay i. 207, 209 Oldfield v. Round i. 321 Oldham v. Carleton ii. 204 v. Casey i. 2<>9 v. Hands i. 95 v.Hughs i. 317 — v. Oldham ii. 183, 184 Oliphant v. Hendrie ii. 50 Oliver v. Frew en ii . 00 v. Hamilton ii. 189 Omerod v. Hard-man i. 345, 347 ii. 103, 430, 437 O'Neal v. Mead i. 50G Onions v. Tyrer i. G{) Only v. Walker ii. 339 Onslow v i. j.38 Ord v. Wilkinson i. 105. ii. 2 l_> Order. Heming i. 417 v. Huddlebtoue ii. 238,289, 242 O'Reiley, exparte i. 19 Ormond v. Ihitcliinson i. 91. ii. 332,330 Or me v. Smith ii. 75 Onnsby, in re. ii. 131, 197 Vol. Pa.-e Orr v. Kaines ji. 9G Osborne v. Browne ii. 29 v. Denne ii. 410,428 v. Duke of Leeds ii. 73, 71 v. Tenant ii. 183 v. Usher h. 430, 138 Osbrey v. Bury i. 393 Osgoodev. Strode i. 327. ii. 371 Osman v. Fitzroy ii. 310 Osmell v. Probert i. 38i Osmond v. Fitzroy i. 2 - 2l Osmyn v. Duke of Cleveland i. 233 Otley v. Manning i. 21G Otway v. Hudson i. 200, 302 Oughterlony v. Lord Powisii. 245 Out read v. Round Owen v. Curzon — v. Davis v, Foulkes v. Griffith v. Jones v. Owen — — v. Williams Oxburgh v. Fine-ham Oxenden, exparte i. 310 ii. 399 i. 294 ii. 384 i. 72. ii. 4:59 ii. 335 ii. 84 ii. 120 ii. 403 ii.512 v. Lord Compton ii. 505,500 ,585,5SG v. Oxenden i. 391 Oxford and Cambridge Univer- sities v. Richardson i. 17,113 , Lord, v. Ladv Rodney i. 478 Oxley v. Lee i. 185 P. Pack v. Bathurst Packer v. Wyndham Page, exparte v. Cooke v. Lever v. Neal v. Page Paice v. Archbishop bury Paine v. Miller ■■ - v. Sydney -'s Case Palk v. Lord Clinton Palmer v, Alicot* i. 495 i. 371 ii. 523 i. 519 ii. 251 ii. 232 ii. 82,83 of Cunter- ii. 03, S(} i. 289, 290 i.7 ii. 302 i. 433. ii. 150, 289 i. 518 Lxxii NAMES OP CASES. Vol. Pn Palmer v. T ord Aylesbury ii. 305 v. Elliot v. Jones • \. Mason - v. Neve v. Palmer v.Price Panquet, exparte Pupil Ion v. Voice Paradice v. Sheppard Pai ker s exparte Appleton i. 507 ii. L21, 131 i. 180. ii. 71 i. 2:30 i. 55 ii. 188 ii. 516 l. ■>!, 417 ii. 207 ii. 530 ii. 184 ii. 215 ii. 158 ii. 230 104 . \. Asm — ~— ~. v. Blackburne - v. Blythmore - v. Brookes i. 473 ii . v. Gerrard i. 190, 201 . v. Hutchinson i. 491 . — v. Parker i. 50. ii. 27 v. Prout ii. 390 Parkes v. White i. 375, 473 Parkinson v. Ingram ii. 392 Parnell v. Lyon ii. 29 Parr, exparte ii. 520 Farry v. Owen ii. 230, 434 v. Rogers i. 159 Parsons, exparte ii. 457,458,478 v. Freeman i. 478 v. Parsons i. 68 Parrot v. Bowden ii. 241 Parteriche v. Powlett i. 292, 298, 472 Partridge v. Haycraft ii. 137,273, 294 ■ v. Partridge ii. 75, 77 Patterson v. Slaughter ii. 220, 290,328, 411 Patonv. Rogers i. 342. ii. 283 Patrick v. Harrison ii. 170 Paul v. Compton ii. Paw let v. Attorney General i. 416 v. Delaval i. 378 v. Ingrey i. 138, 156 — - v. Bishop of London ii. 143 Paxton, exparte ■ 's Case v. Douglas ii. 460,461 ii. 207 ii. 312, 370, 377, 395 ii. 50S ii. 507 Payler, exparte Payley v. Field Payne v. Collier i. 55. ii. 1 19,443 v. Payne ii, 73 Vol. Page. Peace v. Chamberlaine i. 76 Peachy, Sir Henry, v. Duke of Somerset i. 26, 37 Peacocke v. Duke of Bedford ii.293 v. Evans i. 98, 99, 213 v. Monk i. 217, 228, 320, 373, 375, 377 ■ v. Peacocke i. 78. ii. 189, 300 Pearce v. Baron ii. 307 v. Cratchfield ii. 379 v. Grove ii. 292 v. Piper ii. 145 Pearnev. Lisle i. 190. ii. 190 Pearsal v. Simpson ii. 33 Pearson v. Belsher ii. 207, 429 i. 317 ii. 36, 39 i. 173. ii. 48, 05, 67, 426 — v. Brereton -- v. Morgan — v. Pearson Peril ey, exparte 's Case Pelliam v. Anderson v. Gregory I 'el lew v. > Pel ling v. Armitage Pember v. Mathers ii. 524 ib. ii. 53 i. 368 ii. 279 i. 209,210 i. 322. i. 339 Pemberton v. Pemberton i. 73, 188. ii. 364, 308, 396 Pembroke, Earl of, v. Bowden i. 289 Pendergrast v. Sanbergue ii. 202 Pendleton v. Mackrory ii. 187 Pengall, Lord, v. Ross i. 304 Penhryn, Lord, v. Hughes i. 192, 194, 419 Penn v. Lord Baltimore i. 287, S22. ii. 239 i. 212 ii. 286 ii. 370 i. 208 ii. 582 ii. 120 ii. 523 i. 332 i. 117 i. 421 i. 417 v. Peacocke Penny v. Edgar Pentland v. Stokes Peploe, exparte Pereira, exparte Perkins v. Baynton v. Proctor v. Thornton Perrot v. Perrot Perry v. Barker — — v. Murston NAMES OF CASES. lxxiii Vol. P.»ge. Ferry v. Phillips ii. 125,355,372, 374,410,413 \. Whitehead i. 55. ii. 70,71, 410 Pett'sCase i. 517 Pettat v. Ellis i. 413 Ptttiwood v. Prescott ii. 41 Petfr v. Russell i. 256 Peterborough v. Mortlocke ii. 10 Peters v. Robinson n 314 Petit v.Smith i. 87,80, 91,92 i. 189 i. -27.") i. 74 ii. 342 ii. 212 ii. 100 Petre v. Petre , Lord, exparte Pettiward v. Preecott Peyton v. Green Philips v. Gibbons Phillips v. Atkinson • v. Duke of Bucks i. 3-21. ii. ICG v. Carey ii. 205 v. Carew i. 150 v. Chainberlaine i. 06, 442, 443 v. Crawford v. Gibbons v. Paget v. Phillips i. 180 ii. 211,241 ii. 07 i. 471, 475. ii. 128, 175 ii. 4S3 i. 422 ■ v. Shaw v. Vaughan Phippsv. Earl of Anglesea i. 282 v. Bishop of Bath ii. 100 Pickard v. Muttheson ii. 374 Pickering v. Keeling i. 2-3, 41 ■■■ v. Lord Stamford i. 70, 80,205. ii. 40, 52, 31 S v. Vowler ii. 126 Pickett v. Loggan i. 20G,212,214, 339. ii. 210, 24*, 358 Piddock v. Browne Pierce v. Taylor v. Waving Pierpoint v. Lord Cheney Piers \. Piers Pierson v. Garnett v. Shore Pietj \. Ktace ii. 310 1.180 i. 103 i. 403 i.472 ii. i. 271 ii. 120 i. Pref. viii i. 58 ii. 338 Pike v. Home v. White Piling v. Armitage Pilkington's,Sir Lionel, Case i. 138 * v Stanhope* ii, 211 VOL. I. Vol. Pa«e. Pinckev. Cnrteis i 331 v. Thornyeroft ii. 251 Pipon v. Pipon i. 517 Pitcairne v. Ogbourne i 231 Pitcher v. Helliar ii. Ins Pitt's Case i.520 v. Benyon ii. 84 — v. Lord Carnelford ii.7 — v. Cholmondeley i. 83 v. Fellows ii. 72 — v. Hunt i. 235,386 v. .lack -on i. 40 — v. Mackreth ii. 289 — v. Duke of Richmond ii. 399 — v. Snowden ii. 48, 107 — v. Willis ii. 337 Pitts v. Page ii. 425 v. Short ii. 228 Piatt v. Sprigg i. 395 Plunknet v. Kirk i. 40G Plumbe v.Fluit i. 250, 429 Plummer v. May i. 172. ii. 147 Plunkct v. Pensou i. 404, 400. ii. 148,230,253 ■ v. Pierson i. 494 Plymouth, Countess of, v. Bladou ii. 282 Plyston v. Berrv ii. 29 Pock ley v. Pock ley i. 470, 505 Pocockv. Riddingtonii. 120,585 Pole v. Pole ii. 100 v. Lord Somers ii. 01, 92 Polexfen v. Moore i. 280, 400. ii. 107 Pollen v. Husband i. 431 Pomfret v. Lord Windsor i. 405. ii. 320 Pond foot, exparte ii. 480 Poole v. Poole i. 44(5 v. Rudd i. 352 Pool v. Shergold i. 200, 343 Pooley v. Ray i. 03 Pone v. Bish ii. 252 v. Crashaw i. 380 v. Curl i. 125 v. Onslow i. 425 v. Simpson i. 348 Popham v. Bam field i. 35, 86 v. Horner ii. 375 Portier v. Dela Cour ii. 210 Portington v. Tarbock ii. 437 Portmore v. Morris i. 00 Jxxiv NAMES OF CASES. Vol. Page. Portsmouth, Lord, v. Lord Effing- ham ii. 411, 412 Portvne v. Roberts i. 52 Potter v. Chapman i. 104. ii. '285 v. Keene i. 227 v. Potter i. 289, 291. il. 301,335 Potts v. Leighton ▼. Reynolds Poulett's Case Poulc < v. Poulet Powell v. Arderne v. Cleaver ii. 190 ii. 270 ii. 70 ii. 21 ii. 234 i. 200. ii. 79 v. Evans ii. 114. 123, 537 i. 325 i. 351 ii. 31 i. 54 i. 483, 493 — v. Knowler — v. Marty n — v. Morgan --- v. Price •— v. Robins Powis v. Andrews i.200, ii. 191 v. Burdett i. 398 v. Corbett i. 424 Powlet, Earl, v. Herbert ii. 118 Pownal v. King ii. 555 Pratt v. Sladon it. 85, SO v. Taylor .240,242 v. Tessier ii. 275 Prescott, exparte ii.514 v. Long ii. 12, 17 Preston r. Parker ii. 380 v. Wasey i. 330 Prettyman v. Prettyman ii. 247 Pri< e, exparte ii. 434 • v. Rridgman ii. 204 v. Dyer i. 328 ■ v. Fastnedge i. 424 v. Gaultier ii. 184 v. James i. 175. ii. 227 v. Hundreds of, &c. i. 14 v. Seys i. 282 v. Shaw ii. 280, 389, 391 v.Williams ii. 556 Priddey, exparte ii. 409 Prideaux v. Prideaux ii. 385 Pridgeon's Case ii. 550, 553 Priestley v. Lamb i. 281 v. Wilkinson ii. 418 Prime v. Stebbing i. 315 Primrose v. Bromley ii. 390, 533, 534 Prince v. FTeyliu ii. 244 v. Loman ii. 21 — — -'s Case i, 4 Vol. Page. Pringle v. Hodgson i. 385, 388 Prior v. Hill i. 387, 390 Pritchardv. Quinchant i. 51. ii. 289 Probert v. Clifford i. 506 v. Morgan i. 46. ii. 40,506 i.417 i. <'17 ii.507 i. 214 ii. 500 i. 82 i. 512 ii. 475 i. 494. ii. 21, 22 ii. 46 ii. 470 ii. 38 61. ii. 29 ii. 307 Pulsford v. Hunter ii. 17, 77 Pulteney v. Darlington i. 316 ii. 109 v. Shelton i. 133 v. Warren i. 40, 71, 72 Pulvertoft v. Pulvertoft i. 320 Purcel v. Macnamara i. 205. ii. 320, 321, 322, 382, 387, 389, 394 Procter v. Cowper v. Oates Prodgers v. Phrazier Proof v. Hines Prosser, exparte Proud v. Combs v. Turner Proudfoot, exparte Prowse v. Abingdon Pugh v. Smith Pulestou, exparte Pullen v. Cressy v. Ready v. Smith Purefoy v. Purefoy Purse v. Snaplin Pusejr v. Desbouverie v. Pusey i. 433 ii. 7,10 i. 61 ib. ii.6 Pushman v. Felliter Pybus v. Smith i. 357, 377, 378, 380 Py e v. Daubuz i. 420, 430 ii. 489- — v. George i. 303, 393 , exparte i. 327. ii. 78, 79, 80: Fyke v. Pvke i. 332 v. Williams i. 303 Pvlev. Pyle ii. 234 Pyncentv. Pyncent i. 189. ii. 314 Py ne v. Dor i. 115 Q. Quarrel! v. Beck ford ii. 190,304, 305 Quick v. Staines f. 467 Quilter v. Mussendine ii. 246 Quintin, exparte ii. 513., 514 NAMES OF CASES. lxxv R. Vol. Pa-re. Richefield v. Careless ii. 80 Kadclifl'e v. Warrington i. 328, 32!), 348 Radford v. Wilson ii. H56 Radnor v. Vandebendy i. 410 Rainsford v. Taynton ii. J 44 Rakestraw v. Brewer ii. 127 Raymond v. Broadbelt ii. 09 Ramkissensent v. Barker ii. 221, 243,319 Ramsbottom v. Gosden i. 322 Ramsdenv. Hylton i. 211, 294 Randall v. Bookey i. 483. ii. 110 v. Head ii. 266 Randal v. Morgan i. 222, 297 v. Randall i. 320, 328 v. Willis i.50 Ranelagh v. Hayes i. 183, 192 v, Thornehill ii. 434 Raphael v. Boehm ii. 114, 115, Rashley v. Masters Rattray v. Darlev v. George Ravenhill v. Dansey Raw v. Chichester Rawlins v. Goldfrap 421 ii. 422 ii. 327 ii. 429 i. 399, 403 ii. 120 i. 27-") — v. Powell ii. 37.290,371 Rawson, exparte ii. 102,405,471 Rawstonev. Bentley i. 34 Raj \. Fenwick ii. 153 Raymond's, Lord, Case i.277 Raymond v. Broadbelt ii. 00 Rayner v. Julien ii. 235 Read v. Bowers i. 132 • v. Brook man i. 23. ii. 13S v. Devuynes ii. 93 ' ■•— v. Litchfield i. 475 v. Phillips ii. lt»7 v. Reade i. 73,304. ii. 183 v. Snell i. 370, 1 v. Truelove ii. 122 Reay v. Hopper i. 487 Redding v. Wilks i. 298, 3U4 Redington v. Redington i. 191, " 10-3. ii. 99 Redman v. Redman i. 230 K< es v. Parkinson ii. 2S2 Reeve, exparte ii. 466,548 Reeves v. Brymer i. 272 v. Reeve* i. 188 Vol. Pa ire. Regina v. Ballivos de Bewdley i i. 23. ii. 368 Rennesey v. Parrot Rennison v. Ashley Reresby v. Farrer v. New land i. ii. 70 i. 166 ii. 130 400, 401, 402 i. 110 Revet v. Braham Reynish v. Martin ii. 25, 20, 29 Reynolds, exparte i. 91. ii.53l Reynoldsonv. Perkins ii. 110 Rex v. Blatch i. 16 v. Burrard i. 15 v. Fowler i. 15 v. Penot ii. 521 v. Sneller i. 10 v. WhitstapleCompany i.75 Rhodes, exparte ii. 475 i. 379. ii. 40 i. 323 Rich v. Coekell ■ v. Jackson Richards Chambers i. 377, 379, 380 v. Noble i. 122 v. Symes ii. 364,368, 369 Richardson v. Chapman ii. 7, 120 v. Greese ii. 22, 36, • :, 38 Richmond v. Tayleur i. 237. ii. 261, 352 Ricketts, exparte ii. 520 Ricov. Gaultier ii. 184 Rider v. Bayley ii. 425 v.Kidder ii.98,101 v. Wager ii. 75 Ridges v. Morrison ii. 73, 75 Ridgeway v. Darwin ii. 293, 573 Ridout v. Dowding i.dO v. Lewis i. 473 v. Payne i. 05 . v. Lord Plymouth i. 485, 500 Rigby v. Macnamara ii. 380,383, 384 Rigg v. Sykes Rigge \ . Bowater Rightson v. Overton l. Rimene, exparte Riotter's Case Ripley v. Waterworth 11 .560 11. , 190 i. 413, 414. ii.25 ii . 472 i. U i i. 466. ii. 103, 110 Ixxvf NAMES OF CASES, Vol. I'ajrc. i. 374 i.3rt n. 235- i. OS Rippon v. Dawuincr ■ v. Rowley Ritchie v. Aylw\ n Rivers's Case , Earl, v. Earl Derby i. 404. ii. 23 Rivet v. Brahara ii. 177 Roach v. Garvan i 203, 205, 275, 277 v. Ilavnps ii. 0:} Roake v. K dd i. 347 Roberdeau v. Rous i. 74. ii. 225, 240, 301 Robert v. Milehamp ii. 313 Roberts, exparte ii. 575, 578,582 — 's Case ii. 570 ii.226 ii. 82 i. 357,447, 449, 450 ii. 211 i. 52 i. 83. ii. 415 i. 352 ii. 9 i. 227, 233, ii. 90,291, 292 v. St. John i. 301 v. Wilkie ii. 185 v. Bavasor i. 434 v. Lord Byron i. 129 v. Cummings i. 301, 426. ii. 114,342 v. Davison i. 409,410 v. Gee i. 477, 499 v. Hardcastle ii. 44 v. Litton i. 114, 115, 119 v. Pett ii. 131 v. Lord Rokebv ii.156 v. Taylor ii. 108, 110 v. Stevenson v. Tickell v. Tonge v. Wardell Calze Cranwell Clayton . Cook - Dixwell , TIartrey Kingsley Kuffin * IMassey . Pocork Roberts Robe Robinson RbbsOn v. Roddam v Hetheriugton Roche v. Hart Roden v. Snrth Roel>uck v. Dean i. 14 ii. 97 i. 499 ii. 284 ii. 530 ii. 358 ii. 183, 186 ii. 120 ii. 14, 18, 19 ii. 13, 14 Rogers v. Gore v. Mackenzie v. Skillicorne Rolfe v. Patterson Rosewell v. Bennett Rolt v. Rolt Romuev ats. Rondeau v. Wyatt Rooke, exparte Roome v. Roome Rose v. Calland v. Cunninjjhame Vol. Pj?c. n. 270, 340 ii. 484 i. 490 i. 33 ii. 78,80 i.402 ii. 204, 210 i. 103 ii. 475, 504 i. 55 i. 487 i. 122 ii. 79 i.27 ii. 522, 502 i. 373 Rosewell's Case ' v. Bennett Rose v. Rose Ross, exparte v. Ewer Rotheram v. Fanshaw i. 107, 108 Rougemont v. Royal Exchange Assurance Company ii. 204 Roundell v. Currer Rous v. North Routledge v. Burrell v. Derriel Row v. Dawson Rowe v. — v. Gudy,eon ii. 378 i. 181 i.23 48, 249 i. 434 ii. 2 3 ii. 274 v. Jackson i. '390 v.Teed ii. 238, 209 Rowlandson, exparte ii. 518 Rowley v. Ridley ii. 315 Rowth v. Howell ii. 119, 121 Roy v. Dnkfcor'Beauforti. 33,240 Royal Bank of Scotland, exparte ii.541 Ruck v. Kennegal i. 253 Rudge v. Hopkins ii. 149 Rnfiin, exparte i. 77, 78 Rumbold v. Rumbold i. 50 Rush v. Higgs ii. 370 Rush forth, exparte ii. 507 Russell v. Ashby ii. 184,185 • — v. Atkinson ii. 321 v. Hammond i. 217 v. Long ii. 83 v. Russell i. 428, ii. 547 v. Smithies n , exparte Runt v. Cooper v. Whittle Rutherford v. Dawson v. Miller i. 420 ii. 483 i.432 i. 310 ii. 305 ii. 297 NA.MES OF C X X \ 1 1 Vol. Page. Rutland, Duke of, v. Duchess of Rutland i.4(i7. ii. 88, 89, 01 Rutter v. Gutter i. 515 Ryall v. Rowlesi.256. ii. 495,012 v. Ryall i. 490. ii. 98, 124, 125 Ryan v. Macmarth Ryder v. Bentham Rye v. Danbuz Ryves v. Coleman — — - v. Ryvea 8. Sabberton v. Sabberton i. 367 Sackvijle v. Ayleworth i. 155 Saddington v. Kinsman i. 390 ISadler, ex parte ii. 543 v. Hobbsii. 118, 122, 123 v. Jackson i. 226 Sadler's Commonalty of, Case ii.57G Saggittarv v, Hyde O T, • Vljl - ''' oansuaa v. Bragington i, 192 Sant v. Wilson ii. 4r,{) Saumarez, Jolm De, exparte ii. 119, 541,042 i. 1H4 i. 129 i. 420 ii. 348 ii. "227 Sawyer v. Bowyer Serjeson v. Cruise Sarth v. Blanfry Saul v. Wilson Saunders v. Dehew Saunderson v. Class ii. 393 i. 194 i.47 ii. 549 i.3G3, 409 i. 90 Savage v. Carroll i. 300. ii. 201 — v. Foster i.394 — v. Smiillbroke ii. '220 v.Taylor i. 321,323 SavilJe's Case, Mr. ■ v. Blackett > — V. Saville i. Salkeldv. Salkeld v. Science i. 217, 500 ii. 252 ii. 237 i. 279 Sullis v. Savignon Salmon, Dr. v. Hamburgh Coin pany ii. 300 Salter, exparte i. 2G7, 208, 271 v. Hite ii. 309 Saltern v. Melruish i. 258 Salt's Case ii. 524 Salvadore v. Thornton ii. 102 Salway v. Salway i. 272 Samines v. Rickman i. 489. ii. 390, 421 Samudo v. Furtado ii. 403 Samwell v. Wake i. 474 Sanders v. Pope i. 27, 31 Sanderson v. Walker i. 92, 93, 94. ii. 421, 422 San ford v. ii. 321, 322, 324 v. Biddulph ii. 392 Sand ford v. Paul ii. 314,315 -^— - v. Remington ii. 312, 313 Sandon, exparte ii. 456,465 Sands v. Sands ii. 309 Sandys v. Sandys i. 401, 402 Sangossa v. Watson ii. 424 » v. East India Company ii, 143 Sansbury v. Read ii. 13 i, 120 ii.77 193. ii. 383 ii. 173,272 ii. 537 ii. 13 i. 254 ii.248 ii. 513 ii. 400 ii. 511 ii. 422 Savory v. Dyer Saumarez, exparte Saunders v. Earle Sawley v. Cower Sawyer v. Bletsoe Sax ton v. Davis Say and Sele, Ford Sayer, exparte Scarborough v. Burton — Fail of, v. Parker i. 187 Scarth, exparte ii. 460,526 ScheHinger v. Bluckerby ii. 493 Schenck v. Legh i. 398, 299 Scholefield v. Whitehead i. 320 Schoole v. Wall i. 421 Schrieber v. Fateward i. 281 Scott, exparte ii. 470 — v. Fawcett i. 199, 201 v. Hough ii. 158 v. Mackintosh ii. 285 v. Murray i. 322 v. Nesbit ii. 385 v. Scholey i. 40(j v. Scott i.20f) v. Tyler i. 229. ii. 25, 28 v. Vernon ii. 25 Scrafton v. Quincey i, 201 Scriven v. Tapley i. :j^!> Scroope v. Scroope ii. Of) Scudamore, exparte ii. 497 v. Wlhte i. 79 Seurfield v. Howes ii. 1 18 Seagood v. Meale i. 304 lxxviii NAMES OF CASES. Vol. Page. Seagrave v. Edwards ii. 201 v. Seagrave i. 2C0, 333 Seal v. Brownton i. 477 Seaman, ex parte ii. 479, 581 ■ ■ — v. Vawdry i. 342 Seamer v. Bingham i. 282,284 Searle v. Lane ii. 354 Sedgwicke v. Hargrave i, 311, v. Wat kins Seely v. Jago Seers v. Hi nd Seilez v. Greathead Selby v. Alston v. Selby Seley v. Wood Sellack v. Harris Sellers v. Dawson Sellon v. Lewen Selwin v. Thornton Selwood v. Mild may Selwyn v. * . v. Brid^man 345 ii.186 i. 317 ii. 421 ii. 218 i. 305 ii. 267 ii. 89, 91 i. 25: J ii. -107 ii. 237 i. 361 i. G7, G8 ii. 314 ii. 369 Semphill v. Bayley ii. 26 Senhouse v. Earl i. 168, 171, 189. ii. 104 Sergison v. Sealey i. 47, ii. 587 Serle v. St. Eloy ii. 353 Setcole v. Healey ii. 407 Seton v. Slade i. 28, 289, 291, 329, 343, 415. ii. 293, 428 Sewell v. Masson i. 27 Sliaftoe v. Shaftoe ii. 183, 185 Shaftsbury, Lord, v. Arrowsmith i. 165. ii. 148 . v. Shaftshury ii. 78 Shakeshaft, ex parte ii. 117, 504 Shalcross v. Finden i. 484 Shank, ex parte ii. 512 Shanley v. Baker ii. 81 Shannon v. Bradstreet i. 46,47, 292, 293, 334,412 •■ v. Shannon i. 18 Shapland v. Smith i. 357, 361 Sliarpe, ex parte ii. 517 v. Carter ii. 1 88, 232 — v. Gamon ii. 117 • v. Earl of Scarborough i. 418, 491 Shaw v. Chine ii. 266 - - . v. Cunliffe ii. 81 i • v. Weigh i. 446 Vol. Page, Shaw v. Wright i. 341. ii. 165 Sheberry v. Briggs ii. 398 Sneddon v. Goodiich ii. 40, 47 Sheffield v. Lord Mulgravei.346 . -- v. Lord Orrery i. 367 Shelburne v. Inchiquin i. 42, 60 Sheldon v. Cox i. 260. ii. 257 v. Dormer i. 403 — v. Forteseue ii. 567 i. 202, 203 Shelly v. Shelton ats. * Shepherd v. Roberts v. Wright v. Tilley Sheppard v. Kent Shelborne v. Clarke Sherman v. Collins v. Sherman Sherwood v. Smith v. White 208 ii. 260 i. 192 i. 423 ii. 376 i. 171 ii. 22 i. 79 i. 272 ii. 179 ii. 156 ii. 359 Shine v. Gough Ship v. Harwood Shipbrooke, Lord, v. Lord Hin- chinbrookei.277.ii. 122,128, 396, 441 Shiphard v. Lutwidge i. 494 Shirley v. Lord Ferrers i. 152, 186 . ■ v. Martin . v. Stratton . v. Watts Shirt v. West by Sholbread v. Macmaster Shore, Lady, v. Billingsly Short v. Wood Shudal v. Jekyll ii. 78,79 ShuttlewoTth v. Laycock i, 424, i. 227 i. 321 i. 418 ii. 67 ii. 179 ii. 82 i. 318 Shrewsbury, Countess Earl of Shrewsbury Sibley v. Cooke Sibley v. Perry i. 486. Sibthorpe v. Moxon Sidgier v. Birch v. Tyte Sidney v. Hetherington . v. Perry v. Sidney i. Silvester v. Wilson Silway v. Compton 425 of, v. i. 192 ii. 20 ii. 8, 11, 68 ii. 20 ii. 382 ii. 201 ii. 181 ii. 249 308, 333. ii. 334 i. 357 i. 25 NAMES OF CASES. Jxx.x Vol. Page. Silk v. Prime i. 255, 494 Simmonds v. Lord Kinnaird i. 166, 170. ii. 107 Simmons v. Vallance ii. 7, 8, 10, 77 Simpson, exparte ii. 175, 404, 525 v. Vaughan i. 59. ii. 152 — v. Yickars i. 30 i. 442 ii. 590 ii. 335 i. 272. ii. 71 Skeffington v. Skip, exparte Skipp v. Harwood ■ v. Huey v. Warner Sims v. Doughty v. Naylor Sinclair v. Hone Sisson v. Shaw Sitwell v. Bernard ii. 05, 08, 69 ii. 287 ii. 501 ii. 182 i. 23, 191 ii. 298 ii. 30 i. 161 i. 390. ii.10, 95 ii. 334 i. 181 i. 27 i. 22G i, 33 i. 403 i. 71 Hamilton Slanoy v. Styles Shinning v. Style Sleech v. Thorington Sleeman v. Sleeman Slocombe v. (irubb Sloman v. Walter Small v. Beachley v. Fitzwilliams v. Wing Smulley v. Small ey Small man v. Lord ii. 245, 340 v. Onions i. 122 Smart v. Prujean i. 487. ii. 51 v. Wolfe ii. 447 Smith, exparte i. 77. ii. 407, 502, 532, 559 v. Althns ii. 393 v. Aykvvell i. 227. ii* 170 v. Baker i. 58. ii- 98,1(4 v. Barnes ii. 199 v. Bate i. 209. ii. 583 v. Broeklesby ii. 433 v, Broomhead ii. 472 ■ v. Bra nning i. 227 v. Lord Camelford i. 473 v. Cave ii. 372 . v. Clarke i. 257. ii. 334 v. Clay i. 80. ii. 347, 410, 437 Vol. P3£<\ i. 123, 188 n. 35 i. 401 i 327 ii. 559 Company ii.144, 158 v. Hoskins i. 4G7. ii.350 Smith v. Cooke v. Duffield ~- • v. Evans ■ v. French ■ v. Hibbard v. Hibernia v. Kempson v. Low v. Marshall v. Moon v. Morris V. Partridge v. Ktade v. Serle i. 118 i. 285 ii. 158 i. 102 i.35 ii. 22 i. 173 ii. 270 v. Smith i.27G, 283, 309, 514. ii. 21,103 v. Turner ii. 350 ■' v. Wilmer i. 16 , expaite ii. 4S3 Smitherv. Willock ii. 13 Smithey v. Kdmoudson ii. 472 Smithier v. Lewis i. 109 Smithson v. Thompson i. 424 Snelley v. Flatman i. 11 Snellgrove v. Bailey i. 23. ii. 5 Snellsou v. Corbet i. 507 Siieyd v. Snevd i. 238 Sockett v. Wray i. 377, 37S, 381 Solley v. Cower i. 473, 490 Somerset, Duke of, v. Cook-on i. 190 v. Fotherby i. 150 Somerville v. Chapman i. 309 v. Mackay ii. 269 v. Mackler ii. 285 Sommerville v. Sommerville i. 517 Souley v. blaster i. 365 Southcote, expaite ii. 571, 572, 578 v. Watson i. 444. ii. 80, 88, 90, 91 Southwell v. Abdey i. 337 South Sea Company v. Bumstead ii. 252 v. Wymonds 1 i. 205 Southby v. Stonehouae i. 374 Sou den v. Sowden i. 313. ii. 125 Spalding v. Shalmer i. 352 ixxx NAMES OF CASES. Yo!. Pa?>. Sparkes v. Cator ii. 33 Sparks v. Company of Liverpool Water Works i. 38 Sparret v. Spiller ii. 543 Sparrow v. Hardcastle i. Pref. x. 354, 412 Speake v. Speake i. 314 Spearing v. Lynn ii. 294 Speed v. Phillips i. 213 Speldt v. Lechmere i. 43, 253 Spence v. Allen ii. 314 Spencer's Case ii. 487 -• v. Bryan ii.210 v. Bryant ii.216 v. Bullock ii. 15 v. Earl of Chesterfield i. 267 ■ 1 v. Spencer i. 240 ■ v. Wray ii. 397 S purling v. Toll i. 447 Spe'.tigue v. Carpenter ii. 555 Spink v. Lewis ii. 13 Spragg v. Binkes ii. 549 Sprigg v-, Sprigg ii. 81 Spurret v. Spill er i. 22G Spurrier v. Fitzgerald i. 305. ii. 287, 290 v. Hancock i. 329,348 Spurway v. Glynne i. 470. ii. 07 Squib v. VV'ynn i. 434 Squire v. Baker i. 330 v. Compton i. 408 ■ v. Dean i. 473 Squirrel v. Squirrell ii. 219 St. John, Lord v. Ladv, St. John i. 308. ii. 278 Stace v, Mabbot ii. 31 9 Sjackpole's C;tse i. 279 Stackpoole v. Beaumont ii. 20 . v. Howell ii. 93 . v. O'Callighan ii. 217 Stack house v. Barnston i. 73. ii. 244 Stafford v. City of London ii. 142 Staines v. Morris i. 341, 348. ii. 410 v. Plank i. 220 Stamford Friendly Society ii. 501 v. Hobart i. 447, 450 . v. Marshall i. 378 Vol. Pafrf. Standisb v. Radley ii. 400, 410, 411 Stanhope v. Cope . v. Roberts v. Earl Verney Stanley, exparte v, Lee ■ v. Potter ■ v. Stanley Stanton v. Piatt ■ v. Sadler Stanyford v. Tudor 'Standen v. Edwards ii. 381 i. 224 i. 170. ii. 3(»0 i. 434 ii. 579 i. 307 ii. 75 i. 400, 401, 517, 519 Stanfield v. Habergham i. 397 ii. 110 i. 509 i. 422 ii. 395 Stapilton v. Scott i. 343, 344, 346 v. Stapilton i. 62, 324, 327. ii. 139 Stapleton v. Cheales ii. 12 v. Colville i. 475, 470 v. Conway i.490. ii.09 . v. Palmer ii. 14 v. Shenard i. 171 515 ii. 357 i.67 i.310 ii. 474, 480 ii. 82 ii. ISO i. 33 ii, 71 ii. 512,514 v. Lord Viscount Bate- i. 215 v. Cini ii. 159 v. Olive i. 220, 308 i. 327 i. 200, ii. 211 i. 151 i. 04 i. 308 i. 380, 381 389 i. 319 ii. 435 i. 400 i. 161 Staunton v. Oldham Stebbing v. Walkey Steed v. Cragh Steel, exparte Stevens v. Bagwell Stewart v. Stewart Steele v. Wright Stent v. Robinson Stephens, ex parte — v. Trueinan Stephenson v. Gardener Stt v. FIoul ditch v. Wilson . Crawley v Roehefort Sterne, ex parte Stevens v. Avery v. Dethick v. Praed NAMES OF CASES. lxxxi Vol. Paae. Stevens v. Savage i. 279 Stewart v. East India Company ii. 1*47 v. Rowe ii. 327 v. Worral i. 420 Rtileman v. Ashdown. i. 217, 21!). ii. 99, 100 Si iles, ex parte ii. f>47 — v. Attorney General i. 221 i. 290 i. 01, 239, 324 ii. 425 ii. 473 ii. 323 ii. 20 i. 331, 437. ii. 493 ii. 180 JStonehenge v. Evelyn ii. 07, 110 Stouehouse v. Stouehouse i. 108 Stone's Case ii. 570 Storke v. Storke i. 272 Story v. Lord Windsor i. 71, ii. 104,237,251,255 Stoughton's Case ii. 570 Stowell, Lord, v. Cole ii. 401 Strachey v. Francis i. 120 Strahan v. Sutton ii. 47, 49 Strange v. Harris ii. 304 Stratford v. Hogan ii. 2(8 Strathmore v. Howes ii. 285, 280 Stratton v. Best ii. 43 v. Grymes ii. 25 Streatfield v. Streatfield i. 51. ii. 40, 41 Strange v. Harris ii. 3 , Lord, v. Smith ii. 30 Stint v. Bailey Stockley v. Stockley Stoekwtll v. Terry Stokes, exparte . . v. M'Kerrel Stone v. Evans ■ v. Lidderdale ■ v. Tnffin Street v. Rigby i. 33, 321. ii. 252 Stribblcliill v.*Brett S:ribley v. Hawkie Strickland v. Aldridtre Strode v. Blackburne v. Little v. Parker Stroud v. Deacon v. Marshall Strutt v. Baker Stuart v. Tavlor Stubba v. — — Stud holme v. Hodgson i. 231 ii. 301 i. 240, 253 i. 109 ii. 240 i. 28 i. 166 ii. 592 i. 80 ii. 5!) I ii. 348 i. 180 V. I. Pan Study v. TingcomLe ii. l v !> Sturgis v. (oil. i. 379 Sturt v. Mellish i. 79, 309 Styles v. Cowper i. '293 Sutfolk, Earl of, v. Green i. 155 ii.229, 232 v. Howard i. I(i5 Sumner v. Brady ii. 543 ■ ■ — v. Thorpe i. 80 Supple v. Lowson ii. (i3 Surrey v. Stnalley i. 408 Surtees, exparte ii. 525,535 Sutton, exparte ii. 480 v.Jones i. 358. ii. 193 Sutton Coldtield, Hospital of. Case ii. 02 , Corporation of, v. Wilson ii. 324 Sutton v. Earl of Scarborough i. 147, 175. ii. 23S tv. Stone i. 420. ii. 105, 418 Swannock v. Lyfford i. 408, 410 Sweet v. Anderson l. 35 v. Partridge ii. 354, 443 — v. Southcote i. 171. ii. 258 v. Young ii. 205 Sweetapple v. Bindon i. 290 Swift v. Swift ii. 182, 1>3 v. Sydebotham ii. 468 Sykes v. Hastings ii, 193 Sylva v. Da Costa ii. 587 Syniance v. Tattam i. 394 Symes, exparte i. 173. ii. 501, 524 Symonds v. The Countess de Burre ii. 2<»1 Symondons v. Tweed i. 305 T. Tabor v. Grover i. 414 Taggartv, Taggart i. 52, 54 Tait, exparte ii. 4(:4 v. Lord Northwiek i. 475, 470, 488. ii. 384 Tamworth v. Lord Ferrers ii. 119 Taner v. hie ii. 419 Tanfield v. Davenport i. 385 Tankerville, Lord, v. Fawcet i. 478 Tanner v, Wise i. 104 Tappen v. Norman ii. 223, 317 Tarbuck v. Marbury i. 431 Ixxxii NAMES OF CASES. Tate v. Austin v. Hilhert Tat ton v. Molineux Tawney v. Crowther Taylor's Case '■ v. Allen v. Atwood — ~ — v. Beech ' v. Bouchier « v. Field ii. ■ v. Haylin « v. Hawlins — — — v. Johnson • — v. Jones . v. Knight . v. Leitch v. Lewis . „ v. Milner Neville Pophatn 11. Vol. Pase. i. 472 i. 403 i. 307 i. 298 522, 524 i. 131 ii. 345 i. 208 ii. 438 i. 77, 112. 4C2, 462, 464 i. 82 i. 228 ii. 71 i. 218, 221 i. 31 ii. 186 ii. 435 ii. 211, 26(5, 267 i. 290 i. 35. ii. 347, 433 409 ii. 99 i. 43 ii 272 ii. 38 Thomas v. ■ ■ v. Bennet •■' v. Britwell 1 v. Davis v. Daw kins — — — v. Freeman — v. Hodson ■ v. Ketteriche v. Llewellyn v. Oakley v. Thomas Thompson's Case exparte v. Attfield v. Harrison v. Jones v. Stanhope Vol. Pas*. ii. 279 i. 292. ii.37 i.483 ii. 378 ii. 192, 379 i. 434, 435 i. 518 i. 519 ii.271 i. 121 i. 251 ii. 205 ii. 459 i. 41 i. 208 ii. 158 i. 125 — v. Lambe ii. 293, 394 — v. Thompson i. 325 ii. 437 v. Sharpe v v. Taylor ■ • . — v. Wheeler ■ v. Wrench Teacoek v. Falkener Temple v. Bank of England ii. 152, 174 ■ — v. Rouse ii. 400 Tenham, Lady, v. Barret i. 267 tm ■ - Lord, v. Herbert i, 136, 140, 267 Tennet v. Bishop Tenniliteaw, exparte Teneur v. Tenour Terresey v. Gory Terry v. Terry Tewv. Earl of Winterton i. 472, 489, 490, 491. ii. 291 Texier v. Margravine of Anspach i. 172 "lhanet v. Paterson Tharpe v. Tharpe Tlu obald v. Dt fay ThelluMjn v. Woodford 437 ii. 560 ii. 426 i. 24 i, 268 Til ley v. Bridges Thomond, Earl of, Suffolk Thomas, ex parte 442. i. 143 ii. 192 i.284 i. 366, n. 41 i. 198 Earl of ii. 76 i. 272 » v. Towne v. Tooke v. Waller — exparte Thorn v. Watkins Thome v. Pitt Thornhill v. Evans Thornton v. Dallas v. Dixon v. Hawley Thorpe, ex parte - v. Goodhall Thurston v. De Chair Thyne v. Thyne Til lot* on v. Ganson Tinney v. Tinney Tipping v. Tipping Tirrell's, Lady, Case Tittenson v. Peat Toby v. Molyns Todd v. Gee Toliett v. Fletcher v. Toilet Tolson v. Collins Tom kin v. Lethbridge ii. 270, 444 Tomkrns v. Tomkins i. 496 Tomkinson, exparte ii, 523 Tomlmson, exparte ii. 571, 572 v. Dighton i. 251, 374 i. 495, 496 ii, 314 ii. 440 ii. 470 i. 157 ii. 399, 401 i. 214, 427 ii. 544 ii. 103 ii. 109 ii. 459 ii. 490 ii. 275 i. 211 ii. 280 ii. 47 i, 501,506 i. 506 i. 82, 234, ii. 252 i. 115 i. 350. ii. 229 i. 362 i. 47, 56, 495 ii. 33, 38 NAMES OF CASES. Vol. Page. Tomliiison v. Gill ii. 1 v. Harrison ii, 184 Tongsma v. Pfiel ii. 223 Took v. Took ii. 242 Tookev. Hastings i. 313 Topi in v. Stuart Topping v. Pi^ott Totson v. Collins Totty v. Nesbit Touke v. Lewen Toulinin v. Price n. .';->± i. 394 ii. 37 i. 23 i. 515 i. 22, 43. ii. 138 Tourle v. Rand i. 420 Tourton v. Flower ii. 228 Tourville v. Naish i. 434 Tower v. Lord Rous i. 475 Towkes v. Chadd ji. 307 Towle v. Rand i. 250 Townley v. Bedwell ii. Ill v. Challoner ii. 118 Townshend v. Ash i. 74, 75 v. Barber ii. 122 .. v. Lowheld i. 208 ■ - , Maiquis of, v. Stan- groom i. 42, 301, 321, 323 ■ — — v. Townsend i. 352, 362 , Lord, v. Wvndham i. 218, ii. 490 Tracey, Vise*, v. Hereford i. 115, 194 Trafford v. Ash ton i. 403 v. Boehm i. 317, 318. ii. 109, 114, 119, 124 Tranmer, exparte ii. 583 Trap, exparte ii. 547 Travell v. Travell i. 374 Travers v. Buckley ii. 144, 101 v. Lord Stafford i. 374 Trebec v. Keith i. 15 Treblecock's Case i. 19 Trefusis v. Clinton ii. 383 Trelawney v. Williams ii. 239 Tremaine v. Tremaine ii. 307 Trenchard v. Wauley i. 208 Trender, exparte i. 348 Treney v. Hanning ii. 307 Trent v. Hanning i. 3-tO Trevannion v. Moss ii. 255 Treves v. Townshend ii. 05, 120 Trevor v. Trevor i. 50 Trig well, expaite ii. 409 Vol. Page. Trimblestown v. Colt ii. (i0 Trimmer v. Bayoe i. 497, 499 ii. 79, 80. 92 Trinity House v. Ryal ii. 427 Troughtorj v. Gittey ii. 491, 535 Tristham v. Melhuioh i. 33G Tritton v. Foote i. 309 Trou»liton v. Trouyhton i. 424 495 i. 258 i. 41G i. 419 i.20O i. 58 i. 380, 387 ii, 540, 542 i. 57 i. 45 ii. 120 ii.32 ii. 491 ii. 591 ii. 507, 52(5 Tucker v. Phipps v. Tim rstan v. Wilson Tucktield v. Buller Tudor v. Auson v. Samvne Tudway v. Bourne Tuffnel v. Page Tullit v. Tullit Tully v. Tally Tuck v. Houlditch Tupper, exparte Turing, exparte Turner, exparte 's, Sir Edward, Case i.38G . , — v. Burleigh ii, 319, 320 331 v, Morgan i. 200 ■ v. Richmond i. 422 v. Turner i. 3G8, 435. ii. 219, 352, 419 Turton v. Benson i. 231, 435 Turwin v, Gibson ii. 435 Tutton v. Molineux i. 187 Twiiitcs, exparte ii. 459 Tweddell v. Tweddell i. 478, 479 Twine's Case Twining v. Morrice Twig v. Fy field Twisden v. Lock ■ v. Twisden Twistleton v. Griffiths Twogood, exparte v. Swanston Twort v. Dayreli v. Twort Tynt v. Tynt Tyrconnel, Lord, Ancaster Tyrel v. Hope v. Tyrrel i. Ill i. 257,321 ii. 337 ii. 380 i. 450 ii. 34, 30 i.9S ii. 514 i. 82. ii. 5 IS ii. 434 i.121, 123 i. 191 Duke of i. 252,340 ii. 492,493 ii. 05, 71 Ixxxw NAMES OF CASES. Tyrrell's Case Vol. Page. i. 355 I Underbill v. Ilorwocd i. 59, 186, 213 Underwood v. Hitchcoxi,21 8,295 v. Morris n. 25 Unett v. Wilkes ii. 42 Universities of Oxford and Cam- bridge v. Richardson i. 17,113 University, Coll. Oxford, v. Fox- craft ii. 303 Unwinv. Oliver i. 432 Upham, exparte ii. 476 Upton v. Bassett i. 221 v. Lord Ferrers i. 491. ii. 384 Urqhart v. King ii. 87, 92 Urlin v. Hudson ii. 249. 250 Usbome v. Usborne i. 119 Utterson v. Mair i. 183, 229. ii. 152, 225 v. Vernon ii. 367, 566 Uvedale v. Halfpenny i. 54 v. Uvedale ii. 354. ii. 423, 424 Uxbridge, Lord, v. Staveland ii. 232 Vaillant v. Dodmead ii. 311 Tale v. Davenport ii. 380 Vancouver v. Bliss ii. 415, 416 Vandenanker v. Desborough ii. 490 Vanderzee v. Aclom i.247, 248 v. Willis i. 424, 429 Vane v. Lord Barnard i. 116 v.Fletcher i. 41 Vannison v. South Sea Company ii. 167 Vann v. Bttmett ii- 188, 206 1 v. Clarke ii. 21, 22 Varnee's Case i. 100 Vaughan v. Blake ii. 374 v. Farrar ii.55 v. Thomas i. 63, 321 Vennor, exparte i. 8, 16 Vere v. Loveden i. 140 Vernon, exparte ii. 560 ■ v. Vawdrey ii. 113, 1 14, Vol. Pace. Verney v. Macnamara ii. 290 — • — *- v. Verney i. 81 Vernon v. Vernon i. 47, 291, 314 Vez v. Emery ii. 128 Vicars v. Attorney General i. 243 Villareal v. Lord Galway ii. 40 Villers v. Beaumont i. 325 Villiers v. Villiers i. 51,408 Vincent, exparte — v. Fernandez Vizard v. Longdate Voguel, exparte Vowles v. Young ii. 461 ii. 558 ii. 47 ii. 464 ii. 373 W. Wade v.Paget i. 45, 314 Wadeson v. Calcroft i. 27 Wad ley v. North ii. 14 Wafer v. Moocato i. 27, 30 W&gstaffe, exparte ii. 514 — v. Wagstaffe i. Pref. viii. 44, 360 . v . Smith i. 377, 379 Waite v. Whorwood ii. 117 Wake v. Wake ii. 48 Wakefield v. Child i. 198 Wakeman v. Duchess of Rutland ii. 142 Wakerell v. Delight Wakelin v. Walthall Walcotv. Hall v. Walker Waldo v. Caley Waldron v. Forrester Walker v. Burroughs 287 - ii. 213 ii. 338 ii. 13, 504 i. 124 ii. 63, 375 i. 361 i. 221. ii. 491 v. Cooke i. 180 v. Denne i. 290. ii. 109 v. Easterby ii. 217,218 v. Fauderheide i. 12 v. Frobisher ii. 557 v. Jackson i. 474, 475 v. Meager i. 473 v. Nightingale i.257 v. Preswicke ii. 336, 350 v. Shore i. 275. ii. 14, 17 v. Small wood i. 353. ii. 151 v. Thomas ii. 316 v. Walker i. 302,362 v. Wcatherall i. 270 v. Wingrield ii, 317 NAMKS Or CASE* J X H i <•' Vol. Pape. Wall v. Busby ii. 291 Wallace v. Pomfret ii. 30, 37, :j8 Waller v. Childs i. 502 v. Cox i. 299 v. King ii. 557 W alley v.Walley ii. 12G Wall is v. Hoclson i. 518 v. Duke of Portland ii. 232 v. Thomas ii. 374 Walpole, Lord, v. Lord Oxford i.295. ii. L39 i. 394 ii. 189 i. 204. ii. 414 ii. 338 ii. 90 nton Walter v. Moody Walters v. Taj lot Waltham v. Brou Walton v. Hobbs V. Walton Walwyn v. Lee i. 190. ii. 255 Wankford v. Wankford i. 471 Warburton v. Warburton i. 404. ii. 410 Ward v. Bradley i. 54 Ward v. Kepple ii. 434 v. Duke of Northumber- land ■ v. Periam — , exparte v. St. Paul v. Turner Wardell v. Dent v. Morris ii. 234 ii. 555 ii. 517, 518 i. 2(14 ii. 4, 5 ii. 310 i. 202. ii. 304, 375 Warden and Minor Canons of St. Paul's v. Cricketti.80.ii.368 v. Morris i . 202. ii. 364,375 Warder, exparte ii. 510 Wardourv. Beresford i. 259 Ware v. Horwood i. 64 Waring v. Ward i.499. ii. 24 Warmistry v. Tanfield i. 437 Warner, exparte i. 200 v. Baynes i. 200 v. Conduit ii. 245 v. North ii. 549 v. Watkins i. 62. ii. 529 Warren, exparte ii. 581 v. Stawell ii. 153 ■ v. Warren ii. 33 Warrington, Lord, v. Booth i.4S4 Warter v. . i. 274 Warwick, exparte ii. 510 «, Countess of, v. Edwards i. 291 Vol Pa^. Warwick v. Warwick i. 51, 53. ii. 104 Waters v. Taylor ii. 252 Watkins v. Lea i. 3C8 Watkyns v. Watkynsi. 391. ii. 3;J4 Watson, exparte ii. 469 v. Birch ii. 385, 380 v. Duke of Northumber- land i. 201 v. Low ii. 350 Watt v. Grove i. 91 Watts v. Ball i. .-{()(> v. Bullas i. 41,45, 55,59 ■ • v. Thomas i. 220 Weatherall v. Geering i. 333. ii. 491 Weavers Company v. Hay ward i. 15, 10 Webb's, Mr. Case i. 12(i v. Claverden ii. 227 v. Conyers i. 140 v. Rorke i. 420 v. Earl of Shaft sbury ii. 134 v. Ward ii. 540 v. Webb i. 515. ii. 95 Webber v. Smith i. 33 Websterv. Birch more ii. 340 v. Bishop ii. 557 Webster v. Hale ii. 8,67, 68 -- v. Webster ii. 82, 85, 245 Weedon v. Fell Weeks v. Cole v. Gore v. Staker Welby v. Duke of Wei ford v. Beazely Wellings v. Cooper Wells v. Corbvn i v. Myddleton -- v. Price v. Wood ii. 22, 287 ii. 219 i. 58, 470 i. 132 Rutland i. 135, 140 i.298 i.70 ii. 312 i. 94, 90 i. 281 i). 290 ii. 571 Wenman's, Lord, Case Wentworth v. De Virginy i. 326 West, exparte ii. 10 v. Errissey i. 51, 52, 54 v. Skipp i. 70, 77. ii. 40S, 495 v. Vincent ii. 384 Westly v. Clarke ii. 123 Wetherell, exparte i. 429 Ixxxvi names of cases. Vol. Pa 1- ii. 532 i. 446 i. 215, 287 ii. 86 i. 343, 348. ii. 415 ii. 321, 440 ii. 218 ii. 297 ii. 399 ii. 302 i. 83 i. 216, 220 i. 216 ii. 290 ii. 205 ii. 56 384, 427 Whitelocke's Case Whitfield, exparte v. Faussi ft Vol. Paa<«. ii. 148 ii. 188 i. 23 ii. 176 i. 288 ii. 183 i. 99 v. Golding Wicks v. Marshall Widmore v. Woodroffe Wigg v. Tiler Wig- QT Whitley v. Whitley Whitmillv. Farrell Whit.nore, exparte Whittey v. Price Whittingharn v. Burgoyne i. 228 Whittonv. Russell i. 39, 253 Whitworth v. Davis i. 172, ii. 231 i. 24 ii. 143 ii. 50 ii. 566, 585 - v. wigg ii. 103, 105 Wikes'sCase i.364 Wilcox v. Drake i.263 v. Wilcox i. 312. ii. 165 Wild v. Wills i. 197 Wild man v. Wildman i. 382, 384, 388 Wiley v. Pistor Wilford v. Braseley Wilkes v.Wilkes Wilkie v. Holmes Wilkiiis v. Aikin v. Hunt ii. — v. Ternegan v. Williams . v. Willis Wmtelocke v. Baker ii. 310, 318 ii. 301, 193 ii. 328 i. 308 i. 45, 47 i. 124. 126 123. ii. 422 i. 81, 224 ii. 190,193 i.398. ii. 98 Wilkinson v. Belcher ii. 207 v. Braytitld i. 213 v. Coher ii. 170 . . — v. Stafford ii. 125,126 Willanv. Willan i. 188, 328. ii. 375,412 Willats v. Cay i. 380, 389 Williams, exparte i. 77, 78. ii. 479 — v. Duke of Bolton i. 114, 381 i. 282 i. 483, 500 ii.108, 110 ii. 401 ii. 267 ii. 312 v. Kinder ii. 406- v. Lam.be i.l7l.ii.258 v. Lane ii. 259 v. Longfellow ii. 420 v. Child v. Chitty v. Coade v. Cooke v. Farrington v. Floyer fc AMES OF CASKS- i.WWli Vol. Paee. Williams v. lord Lonsdale i. 869 v. Macuamara i. 119 v. Mellish ii. 411 v. Sorrel i. 436 v. Springfield i. 422 ■. — v. Williams i. 66, 115, 284 v. Winyates ii. 144 v. Wynne ii. 187 Williamson, exparte ii. 603, 538, 539, 540 v. Clarke i. 496 v. Oodrington i. 41, 217, 326 Willing v. Baine ii. 20 Willi ogham v. Joice i. 332, 333 v. Macintosh ii. 252 Willis, exparte i. 431 v. Shorral i. 301 Willoughby v. Willoughbv i. 406, 408, 409 Williams v. Thompson ii. 201 Wills v. Daw kins v. Pu»h v. Slade v. Stradling i Wilmot v. Woodhouse Wilson, exparte ■ ■ v. Bos well 1 v. Brownsmilh i. 377 ii. 295 i. 200 302,303 i.233. ii. 38, 468 i. 18. ii. 457 — v. Dabbs — v. Dennison — v. Fielding — v. Foreman — v. Ginger — v. Grace — « v. lvat — v. Pack — v. Pio-ott ii. 185 ii. 11 ii. 373 i. 196 i.254 i. 313 ii. 300 ii. 223 ii. 84,87 i. 500 i. 249 Vol. Page. \\ inchester,Bishop of, v. Foufriier — . v. Payne L421. ii. 150, 151 ■ v. Knight i. 71 Wind v. Jekyll Windham v. Windham Win&or v. Hilton v. Winsor ii. Winged v. I.ifebury Wingfield v. Atkinson , v. Whaley Wilmington v. Foley v.Spencer ii. 21, 22, 23 • — ' v. Lord John Townshend ii. 40, 42, 49 Wilton, Lord De Grey, v. Saxon " i. 120, 133 Win v. Fletcher ii. 242 Winch v. James i. 270 v. Winchester i. 343 Winchekea v. Earl of Norcliffe i. 209, 518 Winchester, Bishop of, v. Beavor ii. 151, 200 ii. 1 ii. 81, 353 ii. 550 142, 143 1 55 i. 291 ii. 91 i. 320 i. 394 i. 333 ii. 439 i. 390 ii. 317 Winter v. Blount WirdmarJ v. Kent Wiseman v. Mason Witts v. Campbell Wood, exparte ii. 472, 507, 520, 521, 531 W T ood v. Downes i. 96, 96, 102. ii. 378 v. Ilamerton ii. 320, 321 - ■■ v. Penoyre ii. 14, 15, 69, 70 v. Story ii. 261 Woodcock v. Duke of Dorset i. 398 ■- v. King i. 177. ii. 296 - v. May Woodcraft v. Kynastou — v. Burton Woodgate v. Fuller Woodhouse v. Hoskins v. Shipley Woodman v. Blake Woods v. Huntingford Woodward v. Gyles - — v. King Woolam v. Hearn i. Woolaston v. Wright Woolbridge v. Hilton Woollands v. Crowcher ii. 150 i 12 i. 258 ii. 200 i. 31)5 i. 23:J i. 35 i. 478, 47!) i. 33, 38 ii. 181 321, 322 i. 147 ii. 5-30 i. 380 r 389,390. ii. 289 v, oolley v. Drag i. 42t; Woolnough v. Woulnough i. 362 Wools v. Walley i. SS Woolstoncroft v. Long i. 254,256 Worgan v. Rvder ii. 430 Jjtxxviii NAMES OF CASES. Vol. P;.?-. Worge v. Bradley ii. 41-1 Worral v. Marlar i. 38G. ii. 489 Worsat v. Marr i. 385 Worseley v. De Mattosi. 20S,200, 433 Wortley v. Birkhead i. 422 Wras:g, exparte ii. 575, 577 Wrayv. Williams i. 408 Wrea v. Kirton ii. 196 Wren v. Kirton ii. 380 Wright, exparte ii. 500, 584 v. Atkins ii. 173 v. Bond ii. 282 v. Braine ii. 178 • v. Cadogan i. 373 v. Dannah i.335 . v. Englefield i. 374, 440 v. Hall ii. 81 ■ v. Hunter i. 161, 190 v. Mayer ii. 302 v. Morley i. 383, 385, 387.391 v. Nutt i.290. ii. 336 v. Pearson i. 357, 440 v. Felling ii. 440 v. Proud i. 102 v. Rutter i. 386, 389. ii. 2, 41 v. Simpson i. 191 v. Wright i. 434, 437. ii. Ill Wrightson v. Hudson i. 260 Wrottesley v. Bendish ii. 261, 262, 207 Wybourne v. Ross ii. 546 Vol. Page. Wych v. East India Company ii. 247 v. Meal i. 172 ii. 481 i. 406 i.249 i. 410 Wydown's Case Wynch v. Packington Wynn v. Morgan v. Williams Wynne, Dr. v. Bampton i. 294 v. Hawkins ii. 6 ■ v. Lord Newborough ii. 193,197 Y. Yallop, exparte ii. 102 — v. Yallop i. 74 Yate v. Bolland ii. 344 Yates v. Boen ii. 592 v. Fettiplace ii. 21 v. Hambly i. 72, 415, 417. ii. 151,305 Yea v. Fou raker ii.246" v. Frere ii. 390 v. Yea ii. 4-32 York, Archbishop of, v. i. 19 Buildings Company v. Mac- kenzie i. 91 Mayor of, v. Pilkington i. 136, 137, 160 Young v. Clarke i. 323 • v. Peachy i. 243, 245. ii. 98 — v. Keighly i. 77. ii. 410 _. v. Walter i. 65, 290 Zouch v. Woolston i. 45 A TREATISE, Sfc. \ LL matters determinable by the Chancellor, in the Court of Chancery, may be classed under one or other of the following heads : I. THE COMMON LAW JURISDICTION, II. THE EQUITY JURISDICTION. III. THE STATUTORY JURISDICTION. IV. THE SPECIALLY DELEGATED JURIS- DICTION. VOL. I. COMMON LAW JTT U ISB2CT SCN CHA COMMON LAW JURISDICTION OF TJH& CHANCELLOR. ^pHE Chancellor is, by the common law, in- vested with various powers. He is a privy counsellor and prolocutor of the Plouse of Lords;, as well as patron of the King's livings under the value of twenty marks per annum in the King's* books *. He is also, bv the common law, a con- 1 See 38 Edw T 3. 3. and 13Edw. 4.3. 11 Hen. 4. 80. F, N. B. 83 K. 4to ed. It ap- pears from the Rolls of Par- liament in the time of Edw. 3. that it had previously been the usage for the Chancel- lors to give all the King's livings, taxed (by the subsidy assessments) at twenty marks, or under, to the clerks, tcho were then actually cleri or clergymen, who had long la- boured in the court of Chan- cery ; but that the Bishop of Lincoln, when he was chan- cellor, had given such livings to his own and other clerks, contrary to the pleasure of the King and the ancient usage ; andthereforeit was recommend* ed to the King by the Coun- cil, to command the Chancel- lor to give such livings only to ihs clerks of Chanwy, the Exchequer, and the other two benches or courts at West minster- 1 Jail, 4 Edw. 3, No. 51. quot. Gibson's Co- dex, 704. But since the new valuation of benefices, or the King's books in the lime of Henry the Eighth, and the clerks ceased to be in or- ders, the Chancellor has had the absolute disposal of all the king's livings, even where the presentation devolves to the crown by lapse, of the value of twenty pounds a year, oj under, in the King's books. It does not appear how thi* eu> OF THE CHANCELLOR. pervator of the peace, and may award precepts and take recognizances for the peace. The Par- liament is summoned by writs issued by the Chancellor, and all the Acts passed, are enrolled and kept in Chancery^^But these matters, and the learning respectinsfufem. are not here intended to be treated of, but only. «p^p parts of his common law jurisdiction, as have been made the subject of discussion before the Chancellor in the court of Chancery. These consist, principally, of three kinds : I. The Admission of Officers of the Court; Such as the Cursitors and Masters in Chancery , who are nominated, admitted, and sworn by the Chancellor 1 *. Another part of the Chancellor's common law authority is in respect of, 2. Proceedings in the Petty Bag Office* In this court, the Chancellor has, by the com- mon law, jurisdiction to hold a plea of scire facias larked patronage was obtain- ed by the Chancellor, but it was probably by private grant of the Crown, from a consideration that the twenty marks in the time of Edward the third, were equivalent to twenty pounds in the time of Henry the Eighth, Gibs. 764. 1 Burn. Feci. Law, 129. quot. 3 vol.. Black. Com. p. 47. :n note by Mr. Christian. in Scot/and, too, at a very early period, the Chancellor of that country seems to have exercised a right of presenta- tion somewhat similar t the Chancellor of England; for in the year 1309, William de Becercoles, the Scottish Chancellor, presented a peti- tion to the Kinsj in Parliament, praying that he might have the gift of all the Kind's churches, us former Chancel* lurs used to have ; and this prayer was granted, as to those benefices which did not ex- ceed ten pounds per annum. Ryley's Placita, 613, 14. &c. See also Prynne, quo*. Chal- mers ( aledonia, Vol. I. p. im. b Vid. Judicial Authority^ &c. p. 00. B a 4 COMMON LAW JUKISDICTIOW to repeal the King's Utters patent*, of petition.?, monstrans dc droit*, traverses of office, scire facias upon recognizances*, executions upon statutes, &c. which being registered in this court, the process issued out of tlie same, and was re- turnable there, and entered in the office, called the Petti/ Bag*. All personal actions by- or against any officer or minister of the court, in re- spect of his service or attendance, may be brought in this court e . When, however, the parties proceed to issue, the Chancellor cannot try it, as he may do a demurrer ", but must deliver the record into the King's Bench, where judgment is given : and nojudgment can be given by the Chancellor, unless in term; and where it was given out of term it was ordered to be drawn up the next term \ When a writ of scire facias is issued out of the Petty Bag to repeal a charter, upon issue being joined, the record is transmitted into the Crown Officeof the King's Bench, and the cause is tried at the bar of that court 11 . The jurisdiction of the Chancellor in this Court being so very limited, is the reason, probably, that 4 Tnst. 79. As to pro- than by a scire facia* in cecdings on a scire J'ucias, and Chancery. [Grant v. Stone, 1 a judgment lor cancelling Vera. 213.] And see latch. ."J. letters patent, s>ee Prime's 1 Eq. Ca«. Abr„ 128. Cro. Car. case, 8 Co. 1, &c 1 13. 4 See the form ofajudgment ' 4 Inst. 80. upon a monstrans de droit, * 2 Bac. Abr.. 13G k 8 Co. 404. "Ibid. * Recognizances entered ' Ambl. 296. into in pursuance of an or- k As was the case in. Re* der of the court of Chan- gina v. Ballivos, 8cv. d« Beimi-- eery will not be allowed ley, 1 P. Wins. 207, to be sued upon, otherwise ©F THE CHANCELLOR. 6 V is seldom resorted to, and that so little is to be found in the hooks respecting it. It has been said to be nearly obsolete 1 . A very important part of the Chancellor's com- mon law authority respects, 3. The ordering or directing Writs to be made out by the Cursitors, All original wrks are awarded out of the Chancery by the Chancellor; and his power, in this respect, is defined by the common law ; and if he exceeds his authority, or does not pursue it in such order as the law has appointed, the party by exception may abate such writ m . The work entitled Register Brevium, contains the particulars of all the writs, nearly two hundred in number, issued by the Chancellor; and it has been most ably commented upon by litzherbert in his Natitra Brevium* which book, together with the commentary upon it, by Sir Matthew Hale, has completely exhausted the subject. On account of its thus issuing of writs, the court of Chancery in process of time was termed the forge and shop of all originals", officina justitice : writs issued from thence at all times, and the fountain of justice was always accessible to the king's subjects. The manner in which the business there was conducted seems to be thus : the party complaining to the justices of tlu* King's courl for relief, used to be referred to the Chancellor (in person, perhaps, originally) 1 1 Wood-es, Lett. 125. " UmUud's Archoon, p« 49. ■ Plowd. Rep. 74. O COMMON LAW JURISDICTION and related to him the nature of his injury, and prayed some method of redress, and thereupon the Chancellor framed a writ so as to obtain him the specific redress he wanted. When this had been Jong the practice, such a variety of forms had been devised, that there seldom arose a case in which it was required to exercise much judg- ment : the old forms were adhered to, and became precedents of established authority in the Chan- cellor's office. At length the making of writs grew to be a matter of course, and the business very much increasing, it was confided to the Chancellor's clerks, called clerici cancellaria, and since, cursitores cancellarice, A strict observance of the old forms rendered them so sacred, that in time any alteration of them was esteemed an alteration- of the law, and therefore could not be done but by the Great Council; nor was it unusual for a plaintiff, where no writ could be found in Chancery that suited his case, to apply to Parliament for a new one °, These applications were so inconvenient that the statute of Westminster the second was passed, (13 Edw. 1. c. 24.) by which it was provided that, " whensoever from thenceforth in one case a writ shall be found in the Chancery-, and in a Jike case, falling under the same right, and re- quiring like remedy, no precedent of a writ can be produced, the clerks of Chancery shall agree in forming a new one, and if they cannot • See Reeves's History of the English Law, 1 vol. p. 60. CK THE CHANCr.I.LOR. t*r;rec, it shall be adjourned to the next parlia- ment, where a writ shall be framed by consent of the learned in the law, lest it happen for the future that the court of our lord the kin:; be de- ficient in doing justice to the suitors". " This statute, sa\s Blachstonc (somewhat hastily) " with a little accuracy iut the clerks of the 'Chancers', and a lktle liberality in the judges, by extending rather than narrowing the remedial effects of the writ, miglit have effectually an- swered all the purposes of a court of equity, except that ofobtaining a discovery by the oath •of the defendants" New writs were afterwards framed in pur- suance of this statute, but always with great care and attention ; the Chancellor, sometimes, ask- ing the advice of the Chief Justices of both Benches, and the Chief fiaroa of the Exche- quer v . These original wits are returnable into the JCing's Bench or Common Bteas^ The writs re- turnable into the Common Picas, are generally all •original writs, as well in real as personal actions. The writs returnable into the King's Bench, are, 1. Assizes of novel disseisin, in the same county (where the bench sits; 2. Writs that suppose a personal wrong or force, as trespass vi et armis, tjectionc custodier, ravish latent of icard, ejection c I have quoted Sir William p Com. 3 vol. p. 51. lllachstoue's translation of the q See Paine- v. Sidney, Dv«r «tut. in preference to the corn- '208. noticed, ] Sch. and Lcfr. inon translations ; 6ee 3 vol. 77. Comment, p. 50,1. 8 COMMON LAW JUIUSDICTIOS" JirtiKB vi laicd; 3. All writs or suits for the king 1 , whether rcai, personal, or mixt, as writs of right ; 4. Writs ot quare impedit, quare non admissit, SfC though, saith Sir Matthew Hale, some books are contrary, and therefore this hath been ordinarily in the Common Pleas; 5. Writs of replevin; 6. Actions of conspiracy, actions upon the case, and regularly all writs in personal actions, ex- cept debt, detinue, covenant, account, and, in some instances, writs of annuity 1 . Some original writs pay a fine to the king ; as all writs in real actions, assizes, &c. and persona] actions, as in debt. Many of the writs above enumerated are not now employed ; for the proceeding in Ejectme7it y introduced in the reign of Henry the Seventh, has in a great degree occasioned the disuse of real ac- tions" : so much so, that the writ of quare impedit is almost the only real action that remains in common use 1 . Such writs, however, as relate to personal actions, are still resorted to. Appli- cations to the Chancellor relating to original writs, are, for the most part, executed by inferior officers, and are so much of course, that they sel- dom come before the Chancellor in Court for his consideration ; but when they do, the Court, as oj/icina brevium, judge according to the rules of law u . T Vid. " Discourse con- ll See Booth on Real Action^; cerning the Courts of* King's liar. Co. l.itt. 239. a. n. 1. Bench and Common Pleas, by l ii Black. Com. p. 251. Lord Chief Justice Hale." u St-e ex pa'rte Vennor t 3 Vol. I. Harg. Tracts, p. 3es mention- P. Wax. 592, S, C, Mos. tioned by Mr. Cox in note (It 3^1. to Aiscou nil's case. 10 COMMON LATV JURISDICTION of justice, and that it ought to issue whenever the justice of the case requires it z . The writ, it appears, has been issued in cases of personal estate*; but such an application of it has been considered as a stretch of power 1 '. If the widow marry again, yet still the writ may issue ; but instead of being placed in the cus- tody of the sheriff, she is permitted to remain with her husband, on his entering into a recognizance that she should not remove from his house, and that some of the women returned by the sheriff should see her every day, and three or more be present at her delivery . The first writ issued on these occasions is to see whether the widow be with child, and quwndo paritura; and if the jury find her with child, then she is (in strictness) removed by a second writ issuing out of the Common Pleas, (where the first is returnable,) to a castle (so are the old au- thorities), where the sheriff is to keep her safe- ly d ; but the court has held that there is no occasion to execute the writ in that strict man- ner, provided people of skill have, from time to time, free access to the widow, and might be present at the birth f . II. A supplicavit f has often been granted by the court, upon articles filed on oath, (an afrirma- J Ex parte Wallop, 4 Bro. d Cro. Jac. 685, C. C. C. 98. e See ex parte Aiscough, * See case cited in Mos. 2 P. Wnis. 594. p. 391. f As to this writ, see F. b Co. Lit. 8 b . n. 3. N. B. 183. c Cro. Jac. 685. Or THE CHANCELLOR. 11 tion will not do P ,) of assault and battery, and that the party goes in tear of his life ; but lat- terly, it seems, the writ has been refused, and the party grieved directed to apply to the justices of the peace h . In a very early case (in 1631) where exceptions were taken to the articles as being- too general, and production of a certificate of good behaviour, the Court referred it to two justices of the peace to examine the truth of the articles and certificate, and that the question of the suppli- cavit should be stayed in the mean time \ The Court, it seems, uses a discretion on thesubject k ; but in general, the Court of Chancery and also the King's Bench, in case of articles of the peace, at the end of a year, if nothing new happens, dis- charge a party committed for want of finding sure- ties'. Sometimes the security is lessened'", and the master is directed not to be strict as to the abilities of the sureties" ; but the court will not discharge a supplicavit on an affidavit denying the facts, for it will not try them on affidavit ; but where combination or contri- vance appear, the supplicavit will be discharg- ed . III. With respect to the Writ of Certiorari 1 ', it t Ex parte Crumblcton, ' Bat/num v. Lui/iuim, 2 At k. 70. Ambl. 64. h Wavering's csfce, 2 P. ■" Id. ibid. Wins. "i02. As to the uutli©- " Kx parte Sir R, Gros- rity of justices of the peact in venor, 3 P. Wms. 11-J. tlu-.-c cases, bec F. N. B. i&7. Ex parte Kiug a Ambl. ' Snelley v. fiatman, 1 2-10. S. C. 2 Vera. 57& Dick. 0. ' Fov the general doctrine k Ex parte King, Ambl. as to a writ of certiorari, see 334. F. N. 13.518. 12 COMMOK LAW JURISDICTION has been holden, that where a replevin is in a Court of record, it may be removed by a certiorari, issuing either out of the Court of King's Bench, or the Court of Chancery f An executrix, in custody under a Writ de ex- communicato capiendo x for not appearing to a citation by a creditor to exhibit an inventory, moved for a supersedeas, disputing the debt upon equitable grounds ; but the court refused to su- persede the writ, and said, it followed of course upon the significavit*. And a supersedeas to a writ De excommunicato capiendo has been denied, though the signiji- cavit was general and uncertain ; the method to proceed being by habeas corpus ; but where an appeal was brought, a supersedeas has been grant- ed ". Jfa cursitor alters the return of an original, the writ will be superseded a , unless it is only altered as to mistakes merely literal and verbal, and it is resealed b . A writ of error may be superseded by the Chancellor, quia improvide emanavit c . A writ of Ad quod damnum has been quashed for insufficiency in the equivalent required d , and has been set aside for surprize in the execu- tion of it '. According to Sir Edward Coke f , in all those cases where a man is excommunicated by the * See as to this writ, F. b Smith v. Wilmer, 3 Atk, \. B. 144. 505. y The Kinr; v . Blatch, c Dean of Dublin, &c. v. 5 Ves. 113. Dowgate, 1 P. W. 351. a Rex v. Sneller, 1 Vem. 24. d Exparte Armitajje, Atnbl, • Weaver's Company v. 294. Hay ward, 3 Atk. 302. and see e Exparte Vernier, 3 Atk. nbtd. p. 000. 700. f 12Co. 67. title « Prohibi- tion." OF THE CHANCELLOR. 17 Bishop against law, he shall have a writ out of Chancery directed to the Bishop, commanding him to assail him *'. X. With respect to patents, it has been holden that on an application to the Lord Chancellor to withhold the Great Seal from a patent, he will only consider whether it is legal or not, and not whe- ther the Crown ought or ousrht not to grant it '' ; but there are three stages in which it may be op- posed : 1st, While it is under the consideration of his Majesty; 2d, When it comes to the Privy Seal ;and 3d, When it comes to the Great Seal 1 , Since the union of Great Britain and Ireland the Great Seals are kept distinct for patents k . The Chancellor will not sign a patent for a theatre, which does not put the parties under some controiil, even though there should be no caveat against it 1 ; and the Court has expressed itself as cautious how it affixes the Great Seal to a patent for a grant of Warden of the Fleet, as it may occasion a general escape of the prisoners" 1 . It has been holden, also, that after a patent has passed the Great Seal, the time for enrolment cannot be enlarged without an act of parliament" : if, however, the enrolment was delayed by mistake, a new patent might be obtained, and \ \ g 7 EtUv. 4. 14. Boraine's ' Ex parte O'Reilev, 1 Ves. v Caae,16Ves.346. jun,113. " Ex parte Ualv, Vern. & m Col. Leighton's case, Scriv.499. 2 Vern. 174. 'lb. n Ex parte Koops, G Ve>. k Oxford and Cambridge 599. Universities v. Richardson, Ves. 70-). VOL. I, C IS COMMON LAW JURISDICTION" the officers, probably, induced to remit their fees °. XI. Coroners may be removed by the Chancel- lor, where they misbehave or live out of the county; but as theirs is an office of freehold, the court will not, when the Coroner goes out of the way, order a writ to issue De coronatore exone- rando, until there is an affidavit of service at the last place of his abode : nor does the authority of the court extend so far as to appoint another coroner ; but the choice of the new one must be by a majority of freeholders p . XII. A writ of R ep levin q may be obtained, not merely where there has been a distress, as is gene- rally imagined, but in all cases where a person takes goods out of the possession of the person who applies for the writ, upon his giving security, until it shall appear whether the goods are right- fully taken ; but if A. be in possession of goods in which B. claims a property, Replevin is not the proper writ to try that right r . The court will not, on motion, supersede a writ of Replevin, unless a fraudulent use is made of it s . XIIL A writ De caufione admittanda} , will not be allowed to issue, unless it appears upon affidavit, ° Ex parte Beck, 1 Bro. and Lefr. 321. n. Ex parte C. C. 578. Cham berlai ne, 1 Sch. and Lefr. * 3 Atk. 184. 320. Shannon v. Shannon, ib. q For the doctrine as to a 327. writ of Replevin, see F. N. B. s Anon. 2 Atk. 237. 155. l See as to this writ, F. I In re. Wilson, 1 Schoales JV. B. 144. OF TIIC CHANCELLOR. If) that the Bishop has refused to admit of cau- tion". XIV. The writ Dc homine replegiando is an original, suable of right, on petition or motion, and returnable in a court of law". Two persons may join in suing out this writ y . It is not supersedeable in Chancery ; but the party must plead fo it, in the court where it is returnable *. A wife, it has been determined, cannot obtain this writ against her husband a . XV. The writ of Melius inquirendo is another of the common law writs issued by the Chancellor, and noticed in Fitzherbert's Natura Brevium b . In regard to this writ, it has been holden that, if a person is found by office not to be an alien, this is not conclusive on the Crown, but a Melius inquirendum may issue ; upon which, if the party is again found not to be an alien, the Crown is bound c . XVI. Writs of Ne exeat regno, writs of Injunc- tion, writs of Certiorari, and by way of process, or for the enforcement of process, will be else- where considered. XVII. It has been observed in an able contro- versial work d , said to be composed by Mr. Yorke, (afterwards Earl of Hardwicke e ), that there is ■ Archbishop of York v. Edw. 3. c. 13. 2 & 3 Edw. 0. , I Vera. 119. c. 8. N Treblecock's case, 1 Atk. c Exparte Duplessis, 2 C33. Ves. 538. &c. and p. 555. y F. N. B. 66. F. * Judicial authority of the 1 1 Atk. 683. Master of the Rolls, p.* 83. * Atwood v. Atwood, Free. e See Bishop Hurd's Life Ch. 492. of Warburton, P. 572. ; and see 36 C 2 20 COMMON LAW JURISDICTION no one species of all the judicial acts performed on the common law side of the court of Chancery, of which there are not instances of their being also performed by the Master of the Rolls ; but this has been a matter of much controversy, and it has been as positively said, and it seems to be the better opinion, that the Master of the Rolls has no original jurisdiction respecting mat- ters arising on the common law side of the court of Chancery f . The view, thus taken, of the Chancellor's com- mon law jurisdiction is necessarily very limited ; being, as before observed, confined to such parts of it as have come into discussion in the court of Chancery. It would require a volume, to par- ticularize and describe it, in its full extent. f Lloyd v. Scott, 2 Dick. Chancery, and Legal Judica. 570. See also, History of the ture, &c. OF THE CHANCELLOR. 21 CHAP. II. EQUITY JURISDICTION OF THE CHANCELLOR. TJY the generality of the older writers, the Equity Jurisdiction of the Chancellor is de- scribed under three heads — Fraud, Trust and Ac- cident ; but by the word Accident, they usually mean, when a case is distinguished from others of the like nature by unusual circumstances \ It will, however, be more convenient to consi- der the Equity Jurisdiction of the Chancellor (except what relates to the Practice, which will be treated of hereafter) under the following heads : 1 . Accident and Mistake. 2. Account. 3. Fraud. 4. Infants. 5. Specific Performance of Agreements. 6. Trusts. According, even to this enlarged classification of the subject, it may not be very obvious how the great multiplicity of doctrines arising out of the Equity Jurisdiction, can be included; but on consulting the divisions and subdivisions of each head, it will be found, that, without any very arbitrary classification, they include every branch of Equity. I See Lucas, 1. 3. Prec. Ch. 2.1], EQUITY JURISDICTION. 1 . Accident and Mistake. I. It is not under the very extended signification of the term, Accident, before alluded to, that the subject is now intended to be treated of, but only according to its ordinary and more restrained sense. The Jurisdiction of the Chancellor in cases of Accidents has been long established 1 ': they appear to have been relieved against in the reign of Henry VI I. c and from St. Germain s Book, Doctor and Student, as well as from Sir George Cary's Re- ports' 1 , it appears, they continued to be relieved against in the succeeding reign, and now, cer- tainly, form an acknowledged branch of Equity Relief. Where a Bond is lost, (unless it be a voluntary Bond%) relief will be given in Equity' ;■ but no relief is given there., upon a lost note s : and the reason is, that at law, the party could not recover without a profert, and giving oyer of the bond h ; but profert and oyer was not necessary to recover at law upon a lost note': proving of the contents b East India Company v. 41.; but see what is said in Boddum, 9 Ves. 466. Toulmin v. Price, 5 Ves. 238. c Pasch. 7 Hen. VII. p. 12. and Walmesley and Child, 1 d P. 2. Ves. 34). By 9 and 10 Win. c Underwood v.Slaney, 1 Ch. 3. c. 17. s. 8. relief was given Cas, 77. at law in the case of a lost f Toulmin v. Price, 5 Ves. Bill of Exchange. 238. h See 1 Ves. 393. and 2 Ves. g Mobsop v. Eadon, 16 41. Ves. 430.; and see Glynn ' Walmesley v. Child, 1 Ves. v. Bank of England, 2 Ve>. 345. and see Glynn v. Bank ACCIDENT AND MISTAKE. being sufficient, and nothing standing in the plain- tiff's way. And though, of late years, Courts of Law, in the case of a lost Bond have dispensed with a profert and oycr k ,a doctrine, which when first broached, seems to have startled Lord Hard- wicke 1 , and has excited much surprize in subse- quent Judges m ; yet Courts of Equity having once had jurisdiction, they still insist on retaining it, though the original ground of the Jurisdiction, the inability to recover at Law, no longer exists". A Court of Equity will not only give relief againstthe Principal,, where a bond is lost , burnt, or cancelled by accident or mistake, but will also set it. up against a surety in such Bond p ; and this, though the Principal be out of the Ju- risdiction of the Court ^ So, where a Rent-charge is granted by deed, and the deed happens to be lost, a copy cannot be read in evidence at law ; because the party must declare with a profert hie in curia, as the defendant is entitled to oyer of the original : so that the plaintiff must either set up a prescriptive title to the Rent, from a con- of England, 2 Ves. 41. and n See what Lord Thurlow Snellgrove v. Bailey, 3 Atk. says in Atkinson and Leonard, 214. 3 Bro. 218. and see East India k See Read v. Brookman, 3 Company v. Hoddam, 9 Ves. T. R. 151. Hendy v. Stephen- 464. &c, Bromley v. Holland, son, 10 East 55. ^ee also, as to 7 Ves. 19. a burnt bond, Routledge v. "East India Company v. Barrel, 1 H. Black. 254. totty Boddam, 9 Ves. 464. the ease v. Nesbit, 3 T. R. 153. of* a lost bond ; see Fick- 1 See Whitfield v. Faussett, ering v. Keeling, 1 Ch. Rep. 1 Ves. 389. &c. and what he 78. Bonnain v. Newcombe, 2 had previously said in 2 Atk. Ventr. 305. Lee v. Sir Robert 61. Henley, 1 Vera. 37. m See what is said Exparte ''Skip v. Huey, 3 Atk. 93. Greenway, Ves. 812, S13. the case of a burnt bond, and in East India Company v. " East India Co. v. Boddam, Boddam, 9 Ves. 404. 9 Ves. 404. 21 EQUITY JURISDICTION. stant and uninterrupted payment, or he must brincr a bill to be relieved against the accident of the original's being lost \ The Court, however, to prevent fraud, has in the cases of lost securities, prescribed conditions, on which they administer relief. If a Deed or Instrument, upon which the de- mand arises, is lost, and only a discovery is sought, an affidavit of the loss is unnecessary 5 ; for it cannot be supposed a man would bring a Bill only for a discovery of a deed he was possessed of; but if relief is prayed beyond the discovery, e. g. to have payment of the debt 1 , or the re-execution of a lost deed ", an affidavit of the loss must be annexed ; and the want of it, would be a Q-round of demurrer w . If the deed lost con- cerns the title of lands, and possession is prayed to be established, such affidavit must be annexed. So, on the loss of a Bond, and a Bill filed, in con- sequence, to be paid the amount, a Bill of Disco- very is not sufficient ; but it must be, to be paid the money thereon, and an affidavit must be an- v nexed*. And, it seems, that in cases of this description, a Trial at Law will be directed, if the Defendant insists upon it y . r 2 Atk. 01. u Rootham v. Dawson, 15 s Whitworth and (Moulding, Anst. 859. 1 Eq. Abr. 14. & C. 2 P. Wms. w Nicholson v. Pattison, 1 p. 541. Godfrey v. 'turner, 1 Vern. 31(1. Vera. 247. 1 Ch. Cos. 11. * Walmesley v. Child, 1 Ves. Anon. 1 Vern. 180. Prec. Ch. 344,5. Teresey v. Gory, 536.: the case contra, 1 Vern, Finch, 301. Anon. 2 Freem. 59. seems a mistake. 71. 1 1 Vern. 217. 1 Cha. Cas. y Clavering v. Clavering-. 231. Whitchurch v. Golding, 2 Ves. 233, 2 P. Wins, 541. ACCIDENT AND MISTAKE. It appears to be upon the principle of relieving against accidents, by loss of deeds, that grants are, in many cases, presumed or supplied. Where, therefore, a person has been in possession for a great length of time without interruption, Equity will supply all those circumstances, or formal ceremonies, which the Law deems necessary to the operation of the original conveyance ; as Livery, a Surrender 7 , &c. and will not allow such posses- sion to be disturbed a . So, where rent has been paid twenty years, Equity will presume a grant b . And where a Common has been inclosed for thirty years, Equity will presume the Inclosure to have been with the consent of all persons inter- ested, and will not allow it to be thrown open . And where a man is intitled to a rent out of lands, as Chief Rents*, or Quit Rents* ; and from length of time the remedy at law is lost, or become very difficult, the Court of Chancery has interfered and given relief, upon the founda- tion only of payment of the rent for a long time, which bills are called Bills founded upon the solet. The Court has even gone so far, as to give relief, where the nature of the rent, as there are many kinds at law, has not been known, so as to be set forth : but then all the terre-tenants of the lands, out of which the rent issues, must be 7 Lyford v. Coward, 1 Vern. see Eton College v. Beau- 105. champ, 1 Ch. Cas. 121. 1 Eq. ' Ibid. Abr. 32(B) and 3C4. b Steward v. Bridger,2Vern. e Holder v. Chamburgh, 3 516. P. Wms. 257; but see North v. c Silway v. Corapton, 1 Vern. Earl of Stratford, 3 P. Wms. 32. 148. Duke of Leeds against d Duke of Bridgwater v. New Radnor, 2 Bro. C. C. 3-40. Sir Francis Edwards, (} Bro. and 51 S. P. C. 368. Tomans' Ed. and 2(5 EQUITYJUIUSDICTION. brought before the Court, the better to enable it to make a compleat decree 1 . So, where there is a clear right to rent, but no remedy at Law, as no demesne Lands on which to distrain, Equity will give relief 5 ; as it will also, where, from a confusion of Boundaries, no Land can be found for a distress' 1 . On the same ground, of accident, a Lord of a Manor may file a Bill for a Commission to dis- tinguish Copyhold Lands withia the Manor from Freehold, and compounded from uncompounded Copyholds, and to ascertain the boundaries ; and if they cannot be distinguished, to set ou: Lands of the Tenant of equal value with so much of the Copyhold Lands as cannot be distinguished j . And though, in cases of Bills to ascertain Boundaries, the interest of one party is more in- considerable than the interest of another, yet they must equally bear the expence of a Commission to settle Boundaries, and the separating of Free- hold and Copyhold Land k . Equity relieves against penalties, and originally, it is apprehended, on the ground of accident. It relieves, for instance, against non-payment of money at a certain day ', as in the common case of a bond for the payment of money, or of a Mortgage, where the Title of the Mortgagee has become abso- lute at Law. It relieves also against forfeitures of f Benson v. Baldwyn, 1 Atk. k Norris v. Le Neve, 3 Atk. 598. and see Bouverie against 83. Prentice, 1 Bro. C. C. 200. ' See Grimstone v. Lord 6 Duke of Leeds v. Powell, Bruce, 2 Vern. 594. Sir Henry 1 Ves. 171. Peachy and Duke of Somer- h lb. 172. set, 1 Str, 453. Sloman v. 4 Duke of Leeds v. Earl of Walter, 1 Bro. C. C.418. Strafford, 4 Vcs. 180. ACCIDENT AND MISTAKE. 27 copyholds. Relief, however, is dispensed only in those cases where the Court can do it with safety to the other party ; for, it seems, if it cannot put him into as good a condition as if the agreement had been performed, the Court will not relieve m . It will only relieve where the thing may be done afterwards* or a compensation made for it "; but un- less a full compensation can be given, so as to put the party precisely in the same situation, a Court of Equity will not interfere; for such a Jurisdic- tion would be irbitrary . There are some ex- ceptions to this rule ; one of which is, where a voluntary composition is to be paid at a time cer- tain, and in a certain manner. In such case, it is the voluntary bounty of the creditor to remit part of the debt, and the terms must be strictly complied with p . Where a penalty is inserted merely to secure the enjoyment of a collateral object, the enjoy- ment of the object is considered as the principal intent of the Deed, and the penalty only as ac- cessional, and therefore only to secure the damage really incurred : and in such cases, if the penalty of the bond is sued for at law, an injunction will be granted, and an issue, quantum danuii- Jicatus will be directed* 1 . m Rose v. Rose, Ambl'. 332. p Rose against Rose, Am- n Cage v. Russell, 2 Ventr. ler, 332.; and see 8ewell v. 352. Descartott v. Denaet, Masson, 1 Vera. 210. 1 Ch. 9 Mod. 22. Davis v. West, 12 Cas. 110. Exparte Bennet, Ves. 475. and see Wadeson v. 2 Atk. 527. Leigh v. Barry, Caloraft, 10 Ves. 67. Hill and 3 Atk. 585. Mackenzie v. Mac- Barclay. 18 Ves. 63. kensie. JO Ves. 37'2. " Sanders v. Pope, 12 Ves. q Sloman against Walter, 291. WafVrv.Moccato, 9 Mod. 1 Bro. C. C. 418. 112, 113. 28 EQUITY JURISDICTION. It has been said, that if there be a mortgage at 5 per cent, with a condition to take 4 per cent, if regularly paid ; or a mortgage at 4 per cent, to have 5 per cent, if not regularly paid, the 5 per cent, is regarded in Equity only as a. penalty to secure the 4 per cent. ; and the party is re- lieved from paying the 5 per cent, by paying the 4 per cent, and putting the other party in the same condition as if the 4 per cent, had been paid : that is, by paying him Interest upon the 4 per cent, as if it had been received at the time 5 . This position, however, in its full extent, does not seem warranted by, the authorities; and the rule rather appears to have been, that if money be lent on mortgage at 4 per cent, Interest, but if not punctually paid, then to pay Interest at the rate of 5 per cent, a Court of Equity will consi- der the 5 percent, but asnonmie poena, and re- lieve \ unless there has been a long arrear of Interest"; but where Interest is reserved at 5 per cent, and if duly paid, 4 per cent, to be ac- cepted, and it is not punctually paid, the Court will not relieve x ; because this latter agreement, though substantially the same, is not in the form of a penalty y . Where a Bond was given for the performance of covenants to build a bridge, which, from circum- 8 Seton v. Slade, 7 Ves. Higgins, 2 Vera. 134. Strode 273,4. and Parker, ib. 316. Jory v. 'Holies v. Vyse, 2 Vern. Cox, Prec. Ch. 160. Nicholls 290. Strode v. Parker, 2 Vern. v. Maynard, 3 Atk. 520. 3 Bl. 316. Cemm. 432. u Brown v. Barkham, IP. y See Arg. 2 vol. Hargr. Wms. 652. Jurisconsult. Exercitations, x 2 Vern. 290. Hallifax and 218. ACCIDENT AND MISTAKE. 29 stances became impracticable, and the sum agreed for, actually paid, an Injunction was granted to restrain an action on the bond, and an Issue, Quan- tum Damni/icatus, was ordered, the sum mention- ed in the Bond being considered as a Penalty 1 . The construction of Covenants is the same in Equity as at Law, but the performance of them is considered very differently in Courts of'Law and Equity. At Law, a Covenant must be strictly and literally performed : in Equity ', it is sufficient if it be really and substantially performed according to the true intent and meaning of the parties, so far as circumstances will admit ; but if by un- avoidable accident, if by fraud, by surprize, or ignorance, not wilful, parties have been prevented from executing it literally, a Court of Equity will interfere : and upon compensation being made, the party having done every thing in his power, and being prevented, by the means alluded to, will give relief. This doctrine was formerly carried to a length that became in some degree alarming ; terms and conditions of Covenants having been construed, as only in terrorem; but in modern times that has been much restrained ; and it is now perfectly understood that even in the pur- chase of an estate, if money has been covenanted to be paid at a given day, if it is not paid at the day, at law, an action will lie ; but if the partv can shew, that he took the means of paying it, and has been prevented by accidents not in his power, the J Errington against Ayuesly, 2 Bro. C. C. 341, 30 EQUITY JURISDICTION. Court will dispense with the strict performance of it ; because, as it was formerly said, it is not of the essence of the contract ; but it m ay be of the essence of the contract : and the party cannot avail himself of equitable circumstances, unless he shews that there has been no wilful neglect or misconduct on hispart\ In a case where, previous to Lord Stanhopes Act, a tender was made, in Bank Notes, of Rent secured by covenant, and from pique was refused, and payment in Coin insisted upon, and a distress made ; a Bill was filed for relief, on the ground of the great scarcity of Coin, and the difficulty of procuring it, and for an Injunction in the mean time ; but the Master of the Rolls, (Sir William Grant) sitting for the Chancellor, refused the Injunction, because he thought the Party could not be relieved against his covenant, and that to relieve him would be to assume a legislative au- thority . Where a Lease for Life, or for Years, is made upon a condition of Re-entry for a Forfeiture, or that the Lease shall be void, if the Lessee assigns or aliens it without Licence, and, after- wards, the Lessee assign it without Licence, this is a forfeiture, and such a Forfeiture against which the court willnot relieve, because, it is said, it is un- knovnwhat shall be the measure of the damages e . a Eiton v. Lyon, 3 Bio. e Wafer v, Moccato, 9 Mod. G92, 3. 112. quot. by Lord Chan, in c Bra; v. ~, Seal, 25th Sanders v. Pope, June 1612. MSS, ACCIDENT AND MISTAKE, 31 If, after such a covenant, the Lessee dies indebted, and his Executors sell the Lease for payment of the debts, Equity will, in favor of creditors, relieve against the Forfeiture f . But though the Court does in many cases re- lieve against a Breach of Covenant, yet there is no branch of the Jurisdiction of the Court more delicate than that which goes to restrain a legal right e y and it has been termed a dangerous Juris- diction ''. In cases of a contract by Lease to pay Rent, with a Covenant and clause of Re-entry on non- payment, a Court of Equity will relieve the Tenant on payment of the Rent, with Interest and allExpences, (an inadequate Relief,) and will not let him be turned out of Possession ', for in such cases it is said (not convincingly perhaps) that the loss is certain, and may be recompensed by damages. So, relief has been given against a Forfeiture, and a right of Re-entry, incurred by not laying out, according to covenant, a specific sum in re- pairs,'m a given time k . And in a case where the Tenant had omitted to keep the Premises in Re- ' 1 Ch. Cas. 170. 18 Ves. 58. 59. GO. and see g See Sanders v. Pope,12 Ves. Taylor v. Knight, Vin. Abr. 289. tit. Chancery, (V.) Ca. 31. h Hill v. Barclay, 10 Ves. The same Relief may be 406. had at Law under the Stat. 4 ' Francis's Max. in Equity, G. 2. c. 28. s. 23, 4. Sanders v. Pope, 12 Ves. 289. k Sanders v. Pope, 12 Ves. and see Davis v. West, 12 Ves. 282. and see Brown and Quil- 475. Descartott v. Dennett, ter, Anibl, 619. 9 Mod. 22. Hill and Barclay, 32 EQUITY JURISDICTION. pair, as he had covenanted to do, and an Eject- ment was brought on the usual clause of Re-entry, and Possession taken, Relief was given 1 . But Lord Eldon seems not to have concurred in these deci- sions, or to admit that Relief could be administer- ed, unless in cases of Accident and Surprize; the ef- fect of Weather, for instance, or permissive want of repair, the Landlord standing by and looking on m ; and it seems clear that if the Tenant's conduct with reference to his covenant has been gross and rubious, Relief would not be given to him n ; nor will relief be granted, if the Premises being much out of repair, and the Landlord making a requisition to repair, the Tenant refuses to com- ply °. Wherever, indeed, there has been a wilful, voluntary, breach of a Covenant, a Court of Equity will not relieve p . In one case, where the Lessee covenanted to pay the Rent and to repair, and he, afterwards, made 100 under Leases, and the Rent was behind, and the Premises out of repair, and the original Lease was avoided at Law for the non-payment of Rent, Relief against the Forfeiture was given in Equity, on a Bill filed by some of the under Lessees, and their payment of the Rent in arrear and repairing the houses, but the Court would not 1 Hack v. Leonard, 9 Mod. ° 18 Ves. 64. 406. 90. PDescartet v. Dennet,9 Mod. m Hill and Barclay, 18 Ves. 22. Eaton and Lyon, 3 Bro. 693. 62. Hill and Barclay, 18 Ves. 62, "See Hill v.Barclay, 16 Ves. 404. ACCIDENT AND MISTAKH. apportion the Rent, but held that such Lessees might compel the other under Lessees to con- tribute q . Notwithstanding some dicta r and a decision 9 to the contrary, it appears, at length, to be settled, that if a Tenant covenants to repair, damage by fire excepted, he cannot be relieved from the pay- ment of Rent, if the premises are destroyed by fire 1 ; but, it has been said, that if the Tenant in such case offers to surrender his Lease, the Court would relieve", but that seems questionable. If a Covenant be to do, or not to do, some par- ticular act, or doing it, or neglecting to do it, to pay a certain sum by way of liquidated damages, Courts of Equity will not relieve against the pay- ment of such damages v ; as where there is a nomine poena in Leases to prevent a Tenant from plough- ing". And where a Bond is given not to defraud the Revenue, such fraud is considered as a Crime, and for that reason the Court will not relieve x . « Webber v. Smith, 2 Vera. v Roy v. Duke of Beaufort, 103. See 16 Vesi 406. 2 Atk. 194. Blake v. East r See Browne v. Quiltcr, India Company, Finch 117. Ambl. (ill). itolfe v. Patterson, C Bro. P.C. * Steele and Wright, men- 470. Street v. Kigby, fi Ves. tioned in Doe v. Sandham, 1 818. Astley v. Weldon, 2 T. R. 708. Camden v. More- Bos. anil Pul. 352. Sinai I v. ton, cited from MSS. 2 Selwyn Fitzwilliams, Prec. Ch. 102. Abr. 414. Ponsonby v. Adams, Bro. P. ' Hase v. Groves, 3 Anst. C. 417. 687. Holtzapffel v. Baker, w Benson v.. Gibson, 8 Atk. l8Ves. 115. and see on this 395. Woodward v. Gyles, 2 r, Belfour v. Weston, Vein. Hi). I Durnf. and East 310. and x Benson v. Gibson, 3 Atk. me cases there mentioned. 39G. u Cutter v. Power, T. R. 023. VOL. I, D 34 EQUITY JURISDICTION. 4 If there be a Covenant in a Lease against using Premises as a Shop, or Warehouse for any Trade, wkhout Licence in Writing, and a Trade is carried on without such Licence, the Court will not re- lieve against an Ejectment. Nor would a Licence to carry on one Trade, be considered as a general Licence to carry on any Trade y . If a Right of Renewal of a Lease be forfeited by Laches of the Tenant, Courts of Equity will not give relief 7 ; but if the Lessee has lost his right by the fraud of the Lessor, or accident, on his own part, Equity will relieve a . Cases of this descrip- tion have been very frequent in Ireland*', where, it is said, one seventh of the whole Landed Property is held under renewable Leases c ; and it was found necessary to pass an Act of Parliament d , by which the Tenant is on certain conditions relieved e . Where there was a Lessee of a Colliery at the rate of so much per wey, and the Colliery became not worth working, the Lessee was relieved against the future Rent, and the Covenant in the Lease to y Macher v. Foundling Hos- Lysaght, Vernon and Scriven's pital, 18 Ves. 188. Rep. 135. and Magrath v. Lord z Bayley v. Corporation of Muskcrry, ib. 1G6. Leominster, 1 Ves.jun. 470. S. b Raw storne against Bcntley, C. 3 Bro. C. C. 529. Baynharn 4 Bio. C. C. 415. v. Guy's Hospital, 3 Ves. 295. c See Arg. Jackson v. Saun- *See the Irish cases in the tiers, 1 Sch.and Lefr. 447. House of Lords, Ripon v. A 19 & 20 Geo. 3. c. 30. Rowley, 1774. Kain v. Hamil- e See a luminous interpreta- ton, 177(i. Bateman v. Murray, tion of this Act, in Jackson v. 1779. and for a History of Saunders, 1 Sch, and Lefr. these Decisions, see Boyle v. 443. etc. ACCIDKNT AND MISTAKE. 35 work the Colliery, upon paying for all the Coal that could be got f . Conditions Precedents i. e. to be performed before an Estate vests, must, in general, be literally performed ; and the Court will never vest an Estate where, by reason of a Condition Prece- dent it will not vest in Law g . In many cases it will relieve to prevent the divesting of an Estate, but cannot relieve to give an Estate that never vested 1 ', unless the Remainder-men who were to take the Estate on non-performance of the Condi- tion, have used any indirect practice or contrivance to' prevent the performance of the Condition '. Where, therefore, there is a conditional limita- tion over in a given event, in such case (unless the condition be for payment of a certain k sum of Money 1 , or such as the Court can put the party in the same situation as if the Condition had been performed" 1 , and it is not contained in a voluntary settlement",) the breach of the Condition cannot be relieved . Where an Estate was devised, upon ' Smith v. Morris, 2 Bro. ' Wheeler v. Whitall, 2 C. C. 311. Freem. 9. Wallis v. Crimes, 8 Popham v. Bamfield, 1 1 Ch. Cas. 89. Woodman v. Vera. 83. Lord Falkland v. Blake, 2Vern. 222. Bertie v. Bertie, 2 Vern. 333. S. C. 3 Falkland, 2 Vein. 339. Chan. Cas. 129. and 2 Freem. •» Taylor v. Popham, 1 Bro. 220. C. C. 1G8. " I Vern. 339. ■ Bold v. Corbett, Prec. Ch '. ' Cary v. Bertie, 2 Vern. 84.Woodmanv. Blake, 2 Vera, 344. 221. and see 1 Ch. Cas. 52. k If damages are contingent ° Lord Falkland v. Bertie, Equity cannot relieve, Sweet v. 1 Vern. 333. Clerk v, Lucy, Audersou, 2 Bro, P, C. 430. 5 Vin. 87, D2 36 EQUITY JURISDICTION, condition that if the first devisee should refuse or neglect to comply with the condition, viz. to release all demands upon the Testatrix, as Exe- cutrix of A. or otherwise established, within six Months after her death, with a limitation over ; this was held to be a conditional limitation, and a failure in not executing - the release was held not to be relievable k . Nor is Infancy allowed as an ex- cuse for not performing a condition precedent. If such a condition is illegal 1 , or is, or becomes, im- possible, even by the Act of God, the Estate will never arise, nor can Equity relieve "\ It is, in general, different, as to co?iclitions subse- quent, i. e. to be performed after the Estate is vested; for though the Court cannot relieve against all conditions subsequent, yet where the Court can in any case compensate the party in damages for the "non-precise performance of the condition/' as LordA^^Mg-Zttfmexpressed it, Equity will relieve". If such condition becomes impossible by the Act of God, the Estate will not be defeated or for- feited °, The Rule is the same where the con- dition subsequent is unlawful p . In all those Cases in which a Court of Equity relieves against the legal effect of the Breach of a condition^ it depends upon the ques- tion whether compensation can be made; for in k Simpson and Vickers, 14 " Popham v. Bamfielcl, 1 Ves.341. Vern.S3. 1 Co. Lit. 20G ". ° Cary v. Lord Falkland, •* Cary v. Bertie, 1 Vera. 1 Vern. 339. Co. Litt. 200. 340. Craydon v. Hicks, 2 Atk. 2 Bk Comm. 15(5. 7. 18. p Perkins, Sect. 139. ACCIDENT AND MISTAKE. 37 all cases where a Person has broken a condition and forfeited a Penalty, Equity will relieve if there can be a compensation q . Hut if compensa- tion cannot be given, and the value ofthc thing for enforcing which the forfeiture is imposed, cannot be estimated, relief is denied r . Equity will relieve against forfeitures in con- sequence of permissive waste s ; but not, it seems, against wilful waste, though it admits of com- pensation l . Forfeitures which do not admit of compensation, as forfeitures which may be considered as limita- tions of the Estate, and which determine it when they happen, cannot be relieved against. If, there- fore, a Tenant for Life makes a greater Estate than bis own ; or if a Tenant by Copy affects to con- vey a greater Estate than by Law he may, they forfeit their Estates ; nor will Equity relieve". It has already been said that, relief is given in cases of forfeiture of Copyholds v ; but where a Copyholder has long refused to do suit, or service, or to repair"; and where he has granted leases without licence, relief will berefused x . '• Northcote against Dul. \\ orcester and others, 2 1 Teem. r See Hargr. Jurisconsult. 137. Exercitations, 2 vol. 11)4. u Sir II. Peachy v. Duke of s Sir H. Peachy v. Dnke of Somerset, 1 Str. 402. S. C. Somerset, Free. Ch. 072, S, Pre, ( h. 574. 'Thomas v. renter, 1 Ch. % (Vnte, p. 2C, 7. Ca.95. Pre. ( h. 574. But see " Cox v. Higford, 2 Yen). Northcote v. Duke, Ambl. (JG4. 514. Nash v. Fady Darby, q. * Sir H, Peachy v. Dul Somerset, Pre. Ch. 5G8. S3 EQUITY JURISDICTION. It is to be observed that in all those cases. where Penalties are inserted in a case of non-perfor- mance, this does not release the Parties from their Agreement, but they must perform it not- withstanding, and have not an option to pay the penalty and be released from the performance of the Agreement". The interposition of Courts of Equity against Marriage conditions, in Cases of Legacies, may perhaps be considered as arising out of its power to relieve against Penalties and Forfeitures; but however this may be, the doctrine on this sub- ject will be more conveniently considered when we come to treat of Legacies*. Relief has been refused against, a Forfeiture, under a Bye Law of an incorporated Company for Water Works, whereby it was provided, that the Members shall receive notice of the Default in paying a call, and incur a forfeiture by non- payment ten days after the notice sent ; though it appeared that the lapse arose from an acci- dental ignorance of the call z . So, it seems, as to Contractors for Government Loans, if a Party fails to make a Deposit, he can- not be relieved in Equity % and relief in such case has been refused on an application to Parlia- ment b . * Howard v. Hopkins, 2 y Post. Atk. 371. Chiliiner v. Chilli- 2 Sparks v. the Company and ner, 2 Ves. ,528. and see Hob- Proprietors of the Liverpool son v. Trevor, 2 P. Wras, 191. Water-works, sed vid. Woodward v, Gyles, a lb. 434. 2 Vein. 119. * lb. 435. ACCIDENT AND MISTAKE. 89 If a Bill has been filed waiving a forfeiture, and, on that ground, seeking relief in a Court of Equity, though the Plaintiff fail in obtaining that Relief, he will be restrained from insisting on the Forfeit- ure at Law c . It is in general true, that it isnot in the power of the Court to relieve against Accidents which pre- vent voluntary dispositions of Estates' 1 ; but in a great case, it was resolved that, if a Man make a Conveyance with a power of Revocation in the presence of four Privy Counsellors, and he is sent by the King to Jamaica, where that circum- stance becomes impossible, Equity will allow him to revoke it, without such presence . Where a Man has -. thought it had a discretion 102. as to relieving a mistake in a c Ash v. Rogle, 1 Vern. 307. voluntary conveyance, sed d Pickering v. Keeling, 1 Ch. qu. That the child must be Rep. 78. Bonham v. New- legitimate to have relief, Sbe combe, 2 Ventr. 305. Lee v. 2 Ch. C. 200. Jlenley, 1 Vern. 37. contra, ' Anon. 2 Freem. 250 ; but "Watts v. Bui las, IP. Wms. 60; see the doubt expressed in but that case disapproved in Halton's case, 2 Leon. 2d Goring v. Nash, 3 Atk. 188; part, p. 8. and see dictum in Williamson v. Codrington, 1 Ves. 514. 4-2 EQUITY JURISDICTION. that if reduced into Writing contrary to the intent of the Parties, on proper proof that will be rectified 8 . By proper proof, is meant, " reasonable presumption," as some say h , and as others have said, "strong irrefragable evidence 1 ." And it is an essential ingredient to any relief under this head, that it should be on an Accident perfectly distinct from the sense of the Instrument 11 . If a Bargain and Sale be made, and it is not en- rolled within six months, Equity will compel the Vendor to make a good title by executing another Bargain and Sale, which may be enrolled 1 . If a defective Conveyance be made, as a Mortgage in Fee by way of Feoffment, ttttl/tottl livery, Equity will make good this defective Conveyance, and this, though, after such incomplete Feoffment, a Judgment is confessed to a third person, whose debt did not originally affect the Land" 1 . And a defective Conveyance will not only be made good against the Party, but also as against his Assignees* or Representatives °. g Henkle v. Royal Exchange m Burgh and Francis, Eq. Assurance Company, 1 Ves.. Cas. Abr. 1 vol. p. 320. cited 317. Langley v. Browne, arg. 1 P. Wms. 279. S. C. 2 Atk. 203. under name of Burgh v. h 2 Atk. 33. Burgh,Finch 28.; but see what ' Shelburne v. Inchiquin, Mr. Fonblanque observes on I Bro. C. C. 341. 344. Burt v. this case, Treatise of Equity, Barlow, 3 Bro. C. C. 454. and 1 vol. p. 34. in note, see Marq. Townshend v. Stan- n Finch v. Earl ofWinchel- groom, 6 Ves. 305. 338. 9. sea, I P. Wms. 282. and see k Shelburne v. Inchiquin, 1 Atk. 102. 1 Bro. C. C.350. ° Cripps v. Jee, 4 Bro. C. 1 Curtis and Perry, 6 Ves. C. 472. Morse v. Faulkener, 745. 1 Anst. 14. ACCIDENT AND MISTAKE. 43 In like manner, where a Copyhold was mort- gaged, but the Surrender not having been pre- sented within the time limited by the Custom, was void, and the Mortgagor afterwards became a Bankrupt, such defective Surrender was, on a Bill fded against his Assignees, in effect made good ; for the Assignees were directed to pay the Plaintiff his Principal, Interest and Costs, or to be foreclosed p . Cases proceeding on the same Prin- ciple are numerous q . But where certain formali- ties in Conveyances are required by Act of Parlia- ment, and these are omitted, the Court, it seems, cannot remedy the omission: as, for instance, where the Instrument wants the necessary stamps"; or where a Bill of Sale of a Ship was made as a collateral Security, and the Papers, &c. were de- livered, but there was no recital in the Bill of Sale, of the Registry, as is required by the 26th Geo. III. c. 60. Lord Thurlow held it could not be sup- plied in Equity", and thought he could no more reform the Title, where the Interest was derived under the party's own act and contract, not exe- cuted in the terms of the Statute, than he could reform an Annuity Deed, not according to the Annuity Act l . p Taylor and Wheeler, 2 ton, 3 Bro. Ch. Cas. p. 3. Vern. 564. S. C. Salk. 449. Speldt v. Lechmere, 13 Ves. q See Dale and Smithwick, 588. 2 Vern. 150. ' See what Lord Eldon says r See what is said iaTouliain in Curtis and Perry, 6 Ves. v. Price, 5 Ves. 240. p. 745. and Mesteir and Gil- ' Hibbert against Rolles- lepsie, 11 Ves. 020, 41 EQUITY JURISDICTION". Mistakes in Deeds, are sometimes remedied by the construction given to them ; for it is a general Principle, that where a Man has expressed a clear and manifest intention to dispose of his Estate, and hemistakcs the mode of so doing, yet, if the instrument can be considered as valid, in point of substance, so as to effectuate the intent of the party, its informality shall be overlooked, and the deed take effect, if by law it can": as where a man makes a feoffment to his relation and his heirs, and he neglects to make livery of seisin, it is obvious that he meant his relation should take it by a common conveyance ; but he cannot do so for want of that formality, and therefore it shall operate as a covenant to stand seised, and the estate passes by the Statute of Uses, and not by the Common Law, so as to support the intention of the party, lit res magisvaleat quam per eat x ; but it has been held, that if a Trust of Lands be limited to A. and his Heirs and Assigns, or to such as he or they shall appoint, and cestui que trust devises these Lands by a Will, attested but by two Wit- nesses, the Will is void ; nor will it be allowed to operate as an Appointment y . Defects in the Execution of Powers are relieved against in Equity, and in Equity only z , and upon the same Principles upon which relief is given in u The leading case on this x Habergham against Vin- head is Crossing v. Scudamore, cent, 4 Bro. C. C. ISS2. 1 Ventr. 137. Franklin v. y Wagstaff v. Wagstaff, 2 Franklin^. T. 7 Geo. 1 1. 1733. Y. Wms. 258. ?VISS. I Gooday v. Butcher, 9 Ves. ACCIDENT AND MISTAKE. the case of defective Surrenders of Copyholds ', which will be more particularly noticed hereafter. If a Power is executed for a valuable considera- tion, but defectively, a Court of Equity will supply the defect, and this against a Remainder Man or one not claiming under the Power b . It would be otherwise if the execution were voluntary c . Where a Power, therefore, was to be executed in Writing, in the presence of three Witnesses', and it was executed, in consideration of Marriage, in the prcsenoe of two Witnesses only, the defec- tive execution was supplied d . So, where a Power was given to settle on a wife, lands not exceeding ,=£400 a-year, and, on mar- riage, the party covenanted to settle £ 100 a year, clear of taxes and reprizes, and a settlement was afterwards made of lands, with covenants that if they should fall short of e£4()0 a-year the party would make up the deficiency : it was held that the settlement was intended as an execution of the power, and the making it a clear *£400 a-year was a mistake and relievable 6 . Generally, it is a Rule, that the Non-Executnm of a Power cannot be supplied f , though a defectivi 394. The contrary doctrine in c lb. 024. Zouch v. Woolston, 2 Burr. d Wilkie v. Holmes, stated 1136. has long been considered in 1 Scb. and Lefroy, j>. 66. as untenable. n. a. S. C. 1 Dick. 105. Wade * Watts v. Bullas,l P.Wins, agt, Paget, 1 Bio. C. C. 3Gb. 00. Chapman v. Gibson, 2 Bro. e Ambl. 424. €. C 229. * Tullit v. Tullit, 2 P. b Cotter v. Layer, 2 P Wins. Wms. 490. Holmes v. Coghill, •j-3. 7 Ves. 499. and 12 Ves. 200. 46 EQUITY JURISDICTION. Execution may. A non-execution, is where no- thing is done; a defective execution, is where the Power has not been executed according to the terms of the power, but where it has been intended to execute it, and that intention is sufficiently de- clared but the Act declaring the intention is not an execution of the Power in the form prescribed; and there, the defect is supplied in Equity*. As where, in the Execution of a Power, there was a mistake as to the time at which the Interest should commence, relief has been given 8r . But though the legal Effect of the Non-Execu- tion of a Power, is, that the property would go to a third person ; yet if the Court can see that the Power, is coupled with a Trust to the execution of which the parly looked with confidence, the Failure or Negligence of the Trustee, will not be per- mitted, in Equity, to disappoint those objects' 1 . This seems now, an acknowledged Principle of Equity, though some of the earlier cases are not easily reconcileable with it, and, in particular, the case of the Duke of Marlborough v. Lord Godol- phin '. A Court of Equity will supply a defective Exe- cution of a Power, as well in the case of younger Children, and a provision for a Wife, as in favor of Purchasers, or Creditors* : and in the case of a f Shannon v. Bradstreet, 1 708. 5 Ves. 495. 8 Ves. 561. Scho. and Lefroy, p. 62, 3. , S. C. confirmed on appeal to g Probert v. Morgan, 1 Atk. House of Lords, in 1813 ; see 440. also Harding v. Glyn, 1 Atk. h Bax v. Whitbread, 16 Ves. 469. 26. and see Brown and Higgs, ' 2 Ves. Sen. 61. in its several stages, 4 Ves. * Hervey v. Hervey, 1 Atk, ACCIDENT AND MISTAKE. 47 Wife or a Child it has never entered into the view of the Court, whether the provision was volun- tary or not 1 . In cases without number, upon join- turing Powers particularly, it has been determined that a Covenant is a sufficient declaration of an Intent to execute"'; and it is the same, even where a Covenant is made before the power arises, as where a power is limited to be exercised by Tenant for Life in possession, and he covenants when he comes into possession he will execute : in all those cases Courts of Equity have relieved n . It has been thought difficult to account for the interference of Courts of Equity to supply defects, in favor of a child, in cases of Powers; since the attempt to execute a Power, by Will, is no more than an intimation that the party means to exe- cute it; but if all the requisite ceremonies have not been complied with, it cannot be supposed that the intention continued until his death . Where, under a Power of Appointment among children it is defectively executed by a Will, if the children 563. Tollett v. Tollett, 2 P. Treatise of Equity, p. 313. Wins. 490. Coventry v. Coven- in note, such as Fothergill v. try, 2 P. Wms. 222, and S. C. Fothergill, 2 Freem. 250. Clif- in Str. 590. and very fully ford v. Burlington, 2 Verm given at the end of Max. in 379. Coventry v. Coventry, Equity the last case, Sergison 2 P. Wins. 222. Sarth v. Back- v. Sealey, 2 Atk. 415. Menzey fry, Gilb. 160. Vernon v. Vac- against Walker, For. 77. Wil- non, Ambl. 3. kie v. Holme, 1 Dick. 165. n Shannon v. Bradstreet, and see Shannon v. Bradstreet, 1 Sch. and Lefr. 63. 1 Scho. and Lefr. 60. c Vid. Finch and Finch. 1 1 Atk. 507. 15 Ves. p. 51. and see what i- m Shannon v. Bradstreet, said in Holmes v. Coghill, 1 Scho. and Lefr. 63.; and see 7 Ves. 506. and 12 Ves. 212. the cases quoted by Mr, Fonbl. etc. 48 EQUITY JURISDICTION". have legacies under the Will they are put to their Election 1 '. It is observable that according to the opinion of Lord Mansfield, Courts of Equity, in the treatment of Powers originally in their nature legal, follow the Law. " Powers," he observed, " by a Tenant in Tail, to ma e Leases under the Statute, if not executed in the requisite form, will not admit of relief in Equity. So, with respect to powers under the Civil List Act, powers under particular family entails, Equity can no more re- lieve from them, than it can from defects in a Common Recoverv. There is nothing in these cases to bind the conscience of the Remainder Man q ." In later cases, however, it has been holden that if a Lease under a Power be granted for a valuable consideration, a Court of Equity witf relieve against a defect in the Lease, in a point of form 1 ". Mistakes in the execution of Powers by Will have been endeavoured to be remedied by a peculiar construction of W ills by which Powers have been executed. Hence, the doctrine of Cy-presjn regard to excessive executions of powers by Will affect- ing Real Estates. But this doctrine o?Cy-pres does not apply to personalty \ If, under a power to appoint to Children, an appointment by Will to a Child for Life, with remainder to her Children, is p Whistler v. Webster, 2 Ves. and see Campbell v. Leach, 3G7. Ambl. 740. q Earl of Darlington v. Pul- s Koutledge v. Dorriel, 2 teney, Coup. 2G7. Ves. jun. 3G4. 'Doe v. Wilier, 7 T. R. 478. ACCIDENT AND MISTAKE. 49 not valid, and the excess (the remainder to the children) is void ; but this remainder is not consi- dered as unappointed and to go accordingly, but the Court will appoint it Cy-pres, as near the intention of the giver of the Power as possible, and consider the child as taking an Estate-tail 1 . This doctrine of Cy-pres has not, however, been much approved, and has gone, Lord Kenyon ob- serves, " to the utmost verge of the Law";" and Lord EUlon has said, " it is not proper to go one step further*/' Where there is an excess in an Appointment under a Power executed by Deed, the doctrine of Cy-pres is not applicable, as in the case of Wills y , but in such case the appointment under the power is void, so far as relates to the excess. In a case, therefore, where the Power was to appoint to Chil- dren, and an appointment was made to a Child for Life," and after his decease, to his Wife and Children, with a limitation over, if he should have no Wife or Children at his death, to an object of the Power ; the appointment to the Child for Life was held to be clearly good, but the gift after his death to his Wife and Children % was considered as void, they not being objects within 1 See Pittv. Jackson, 2 Bro. y Brudenell v. Elwes, 7 Ves. C. C. 51. Griffith v.Harrison, 382. J Bro. C. C. 410; and see 'In Duke of Devonshire v. on this subject Harg. and Cavendish, mentioned 2T. R. Butl. Co. Lit. 27l k . n. I. 245. a power to appoint to u Brudenell v. Elwes, 1 East, children was construed to ex- 451. tend to grand-children ; but x Brudenell v. Elwes, 7 Ves. that case lias not been followed ,' 300. >-ee Crompc v. Barrow, 4 Ves. (.81. VOL. I. E 50 EQUITY JURISDICTION. the meaning- of the Power; but the limitation over to the object within the Power, was held to be good, and capable of taking effect, if the Son left no'vWife or Children at his death a . So, if there be a power to lease for twenty-one years, and the person leases for forty years, this is void only for the surplus, and good within the limits of the Power b . Under this head of Mistake, Settlements of Real or of Personal Estate will be reformed, if the Settlement be not according to the intention of the Articles w^on which it is founded c . If a Settlement executed subsequent to Mar- riage, purporting to be, in execution of Articles entered into before Marriage, does not take the effect, though it follows the words of the Articles ; the Court will, on the ground of mistake' 1 , rec- tify that error in the frame of the Settlement 6 : nor is length of time any bar to such relief f . In cases of Articles before Marriage, the Court says, such and such Words in Articles are taken to denote such an intent ; and the Con- veyance is according to the intent so manifested e . Articles before Marriage containing limitations, which according to the strict legal operation of the words would give the parents 11 , or either of a Crompe v. Barrow, 4 Ves. d Mitford's Pleadings, 117. 681. e Randal v. Willis, 5 Ves. "Hervey v. Hervey, 1 Atk. 273 560. Campbell v. Leach, Arnbl. ' Honor v. Honor, 1 P. Wms. 740. see also Parkerv. Parker, 123. S. C. 2 Vern. 058. Ciib. Eq. Rep. 108. decided ? Brudenell v. Elwes, 7Ves. on sarne principle. 390. c Randal v. Willis, 5 Ves. h Trevor v. Trevor, 1 Eq. 262. Abr. 387. and S. C. 1 P. Wins. ACCIDENT AND MISTAKE. 51 them ', such an Estate-tail as would enable the Father alone, during the coverture, or the Sur- viving Parent afterwards, to bar the issue of the Marriage under a legal Settlement, limiting the Estate in the same words, Equity will rectify it and order a strict Settlement ; unless the Issue is otherwise provided for than by the Limitation to the Heirs, &c. in the Articles k , by an equiva- lent in a Settlement made after Marriage 1 , or from other limitations or provisions in other Lands, it appears that the Party knew and intended the dis- tinction m ; or where there has been a Purchaser for a valuable consideration without notice", or the Articles cannot be produced . The general principle upon which Courts of Equity interpose to carry Marriage Arti- cles into execution by way of strict Settle- ment, notwithstanding the Articles themselves are not penned in that manner, is, that. Articles made in consideration of and previous to Marriage, are considered as heads of Agreement, or short notes to be afterwards drawn out at length according to the usual course of Set- 622 .S. C. on appeal, 2 Bro. ■ Glanville v. Payne, 2 Atk. P. C. 122. Cusack v. Cn^ack, 40. S. C. Barn. 18. 1 Bro. P. C. 470. Villiers v. m Chambers v. Chambers, Villiers, 2 Atk. 7:3. Fitz. 127. 2Eq. Abr. 35. C. 4. 'StreatBeld v. Streatfield, Howell v. Howell, 2 Vea. 358. Cas. Temp. Talb. 170. Jones v. n Fearne on Contingent Re- Langhton, 1 Eq. Abr. 392. mainders, 108. West and Eris- Nandick v. Wilkes, 1 Eq. sey,2P. Wms. 349. Warwick Abr. 393. C. 5. Gilb. Rep. v. Warwick and Kniveton, 114. Bask v. Dalway, 3 Atk. 3 Atk. 291. Pritchard agaiust 531. Quinchant, Ambl. 148. Card- " Chambers v. Chambers, well v. Mackrill, Ambl. 515. Fitzg. 127. S. C. 2 Eq. 35. r Cardwell v. Mackrill, Ambl. 515. 52 EQUITY JURISDICTION. tlements p , and that a provision for the issue of the marriage is one of the great and immediate objects of this agreement, and consequently a principal intention of such agreement must be to secure such a Settlement as shall contain an effectual provision for that Issue : which end, it is clear, cannot be answered in any degree by a Settlement so framed as to leave it in the power of either parent alone to bar their Issue by Fine or Recovery. The Issue in these cases are con- sidered as claiming a provision in the capacity of Purchasers for valuable consideration, under the purport and intention of the stipulated terms upon which that marriage was engaged, and which gave them birth q . The Court, however, will not interfere if both Articles and Settlement are made before Mar- riage r , unless the Settlement in that case be ex- pressed to be made in pursuance of the Articles*; for otherwise the Court will suppose that the Parties had altered their Intention with respect to the terms of the Marriage; which they may before the Marriage, though not afterwards : and that the Settlement was made in pursuance of p Taggartv. Taggart, 1 Sch. 349. This is the first case in and 1-efr. 87. and see 2 Atk. which the Court altered the 545. 5 Ves. 275. Settlement, and made it con- q Fearne on Remainders, p. formable to the articles, and 111, 112. and see the terms of relieved on the head of mis- Lord Harcourt's decree in Pa- take. See 3 Atk. 293. Portyu pillon and Voice, 2 P. Wins, against Roberts, Ambl. 317. 474. in note 1. Roberts v. Kingsley, 1 Ves. r Legg v. Goldwise, For. 20. 239. • West v. Erissey, 2 P. Wms. ACCIDENT AND MISTAKE. 53 such new agreement and not of the articles, when it is said to be made in pursuance of the articles, all room for such a supposition is pre- cluded*. But there is no case hut where there are articles as well as a settlement, that the Court will construe words which create a legal Estate- tail to be carried into a strict settlement l . And where the limitation in the articles gives an Estate-tail to the wife alone, in an estate derived from the husband, the settlement must be accord- ingly; because in such case it is not in the power of either of the parents alone, to bar the issue, either during or after the coverture ; for the hus- band takes no Estate-tail, and cannot therefore bar the issue of the marriage; and the wife cannot, during the Coverture, do it without his concur- rence: and her Estate-tail being ex provisions viri, the Stat. Hen. VII. prevents her doing it after- wards. And it has been held that their power of doing it jointly is not unreasonable, or inconsistent with the probable view and intent of the settle- ment \ But this doctrine does not, it seems, ap- ply to copy ho Id estates; for the stat. of Hen. \ II. and the 32 Hen. 8. c. 28. do not extend to tliem w . Where, in articles, it is agreed to convey to the issue of the marriage, "whether Sons or Daughters,'* * See Fearne on Contingent ner, 1 Bro. C. C. 584: Bru- Reuiainders, last edition, from deuell v. Elwes, 7 Ves. 300. page 00 to p. 107, where the lienor v. Honor, 1 P. \ m*. whole subject is admirably 123. Whotely v. Kemp, 2 Ves. discussed, and most of the 358. Green v. Ekins, 2 Atk. cases are noticed. 477. S. C. 3 P. ^ 1 Warrick v. Warrick, 3 Atk. w See Mr Butler's Not to 294. Fearne Contingent Remainders, u Fearne on Remainders, 94. 114. n. X. to last Edition. and see Highway against Ban- VOL. I. E 3 54 EQUITY JURISDICTION. they take, as tenants in common*; and if the Estate is only a fee simple, or probably if it is only a Freehold, the settlement, it seems, would be upon the children as Tenants in Common in Tail with cross remainders ; and if it is a mere chattel In- terest it would be limited to them absolutely as Tenants in Common, with a Limitation over in case any of them die under twenty-one and without Issue y . And though a limitation by articles, to the heirs male of the marriage, after an express estate for life to the father, shall be taken to mean a Re- mainder to the Jirst, &c. son, it does not follow that such a limitation to the heirs male of the Body must be equivalent to a remainder limited to daughters', and entitle them to a provision in the rectified settlement. An elder daughter, is, in the execution of arti- cles, accounted a younger child; and a deed found- ed on articles would be rectified to that effect ' A ; but there is no case where the Court has consi- dered a younger child as an eldest, but between parent and children, or those who stand in loco parentis b . Where a term for raising portions was placed after an estate-tail, but should have been before, the Court has rectified the mistake c . So a *Taggart v. Taggart, 1 Soli. a See Heneage v. Hunloeke, andLetr. 84. 2 Atk. 457. y lb. and see Ward and b Hall against Hewer, Ambl. Bradley, 2 Vem. 23. 204. ■ Powell v. Price, 2 P. Wms. c Uvedale v. Halfpenny, 2 539.; but see contra Burton v. P.Wins. 151. adopted in He- Hastings, Gilb. Rep. 113. West neage v. Hunlocke, 2 Atk. 45. and Erissey, 2 P. Wms. 349. andsee 2 Yes. 334. Hart v. Middlehurst, 3 Atk. 371. ACCIDENT AND MISTAKE. 55 settlement has been reformed according to the intention as declared in the recital A . It' a' Testator has by his will expressed a clear, unequivocal, intention 6 , to pass a Copyhold, ora limited Interest in a Copyhold',(a remote reversion only* 5 ;) but has omitted to make a Surrender to the use of his will, the Court will supply the Surrender, if the devise of the Copyhold is in favour of Cre- ditors 1 ', a Wife', Children 11 , a Legatee 1 , or a Chari- ty'"; but not where there are limitations to Stran- gers prior to the Charity", nor in favour of Grand- children , or of illegitimate Children 1 ', or a Sister of the Testator' 1 . The principle on which relief is administered, seems to be, that wherever a man having Power over an Estate, shews an intention to execute such Power, in discharge of natural or d Payne v. Collier, 1 Ves. ' Palmer v. Palmer, 2 Dick* Juu. 171. Doran v. Ross, 1 Ves. 534. Jun. 51). S. C. 3 Bro. G. C. 28. ■ See Harris and Ingledew, •Kightley v. Kightley, 2 Ves. 3 P. Wms. 08. Jun. 332. n Ambl. 573. Att. Gen. 1 See IMarston againstGowan, against Downing. 3 Bro. C. C. 170. ° As to grand-children, see "Cook v. Arnham, 3 P. Kettle and Townshend, I Salk. Wms. 287. 187. S. C. reversed in House h Car v. Ellison, 3 Atk. 77. of Lords, Show. P. C. but this The doubt expressed in 2 reversal disapproved. See Hills Freem. 65. has been long over- v. Downton, 5 Ves. 505. Watts ruled. v. liullas, 1 P. Wins. Gl. and 'In lloomev. Roome, 3 Atk. note, and see Chapman against 182. it was doubted whether Cibson, 3 Bro. 231. but ad- this equity extended to a hered to by Lord Eldou in Per- wife ; but in Hawkins and ry v. Whitehead, Ves. 544. Leigh, I Atk. 387. it was held and see 2 Ves. 582. Elton v. it did. Elton, 3 Atk. 508. Goodwin k Anon. 2 Freem. 115. and and Goodwin, 1 Ves. 228. ' 1. Hard ham v. Roberts, p Cricket v. Dolbv, 3 Ves, 2 Vem. 1J2. 12. < 1 Ves. 128. 60 EQUITY JURISDICTION. moral obligations, the Court will operate upon the conscience of the Heir, to make him perfect that intention r . The idea of supplying a Surren- der was, originally, a bold one; and seems to have arisen out of some of the very extraordinary de- cisions upon the Statute of Charitable Uses*, 43 Eliz. c. 4. At first, it seems, the Court supplied the de- fect in favour of Creditors, and then they extend- ed the doctrine in favour of younger Children. upon the idea, that younger children unprovided for, must be considered as creditors *. With respect to Creditors, a defective Surren- der is not supplied, except where it is absolutely necessary for the payment of debts, and they would, otherwise, be unpaid. If, therefore, Free- hold and Copyhold Estates be charged by a will, with the payment of debts ; so long as any Free- hold Estate remains applicable to that purpose", a Surrender of the Copyhold will not be supplied; notwithstanding the express intention of the Testator to charge the Copyhold rateably with, or even in preference to, the Freehold. But this r Chapman against Gibson, Ch.282. and see Hills v. Down- 3 Bro. 230. and see Hills v. ton, 5 Ves. 5G3. Downton, 5 Ves. 504. Toilet " Mallabar v. Mallabar, and Toilet, 2 P. Wms. 489. For. 78. Ithell v. Beane, 1 Ves. •See Duke's Charitable Uses, 215. Drake v. Robinson, 1 P. and what is said in Kumbold Wms. 443. Hellier v. Tarrant, v. Rumbold, 3 Ves. 69. and in Addenda to 3d edition of the remarkable Decision there Forrester, p. 287. etc. and the alluded to. eases there mentioned ; but 1 So said Arg. in Whit- see Bixby against El ey, 2 Bro. combe v. Whitcombe, Prec. C. C. 325. ACCIDENT AND MISTAKE. 0< is to be understood of the legal estate only; for it must be remembered that an equitable Estate of Copyhold will pass by such devise without surrender w ; for not having the legal Estate, the Testator could not surrender x . Though a Surrender of a Copyhold will not be supplied in favor of a Widow, or younger children, where there are Freehold and Copyhold lands, and general words are used in the will, and the Copyhold Estate is not expressly mentioncd y ,itis otherwise in the case of creditors; and if the Copy- hold is wanted for debts, the want of a Surren- der will be supplied, if there be general words used in the devise, such ns," messuages, lands, tene- ments, and hereditaments,'' though the Copyhold Estates are not expressly mentioned z . Surrenders will be supplied in case of a Deed or a Will a in favor of younger children, who are un- provided for, (unless by the will under which they claim the Copyhold '',) where a provision has been made for the heir, either by the father or a stran- ger ; it being unimportant, by whom or how he is w Macnamarav. Jones, 1 Bro. 1 P. Wins. 442. and sre also C. C. 482. Gibson v. Lord Raslewood t. Pope, 3 P. Wins. Monntfort, I Ves. 489. Allen p. 322. Limlopp against Ebo- v. Poulton, 1 Ves. 121. and rail, 3 Bro. C. C. 189. Kidney lee Hawkins v. Leigh, 1 Ark. v. Coussmaker, 12 Ves. h">7." 388. Maceyv.Shurmer, 1 Atk. '""Rogers v. Marshall, 17 Ves 390. Car v. Ellison, 3 Atk. 75. 295.. King v. King, 3 P Wma. 358. b Cooke v. Arnham, For * Tuffnell v. Page, 2 Atk. 36. S. C. 3 P. Wins. 383. and 38. S. C. Barn. 6. also in MS. under title of 'See Bias v. Bias, 2 Ves. Cooke v. Arnold, Gain v. Gam, 1G4 - 16 Ves. 208. Chapman v. ■Via. Drake v. Robinson, Gibson, 3 Bro. C. C 230. iS EQUITY JURISDICTION. provided tbr c , whether by settlement, or many other way d ; and the Court will not enter into a consideration of the quantum of the provision 6 ; but some provision, it seems, there must be f , though doubts have been thrown out on this point": and the provision, it has been determined, must exist at the time when the Bill is filed '': it being said to be a rule, that the Court will not supply the defect of a surrender in favor of a wife, or younger children, to the disinherison of an heir, unprovided for'. But this doctrine as to a provision for the heir, is not applied to any heir, but a child k , or, perhaps, a grand-child 1 ; to an heir in blood, but not hares f actus m . If the heir mortgage the Copyhold to one, with- out notice of the devise, and there have been laches in the devisee, the surrender will not be supplied, as against such mortgagee". A surrender will in some cases be supplied in favour of an eldest son : as in a case of Gavel- c Pike against White, 3 Bro. 265. S. C. 2 Freem. 17. Prec. C. C. 288. Ch. 32. d Hawkins v. Leigh, I Atk. 'Hawkins v. Leigh, 1 Atk. 380.; but see 3 Atk. 183. 388. Macey v.Sharmer, 1 Atk. e Cooke v. Arnham, 3 P. 390. and see Briscoe v. Cart- Wms. 283. S.C.MS. Burton v. right, Gilfc. Eq. Hep. 121. Floyd, 6 Vin. 50. pi. 20. Ilicken v. Hicken, Vin. Abr. ' lb. and see Chapman v. tit. Copyhold, (M. A.) Ca. 20. Gibson, 3 Bro. C. C. 229. p. 59. g See Hills y.Downton, 5 Ves. k Chapman v. Gibson, 3 Bro. 557. Fielding v. Winwood, C. C. 230. 10 Ves. 92. Tudor v. Anson, ' Rogers v. Marshall. 17 Ves. 2 Ves. 582.; but see Lord Al- 297. vaidey's remarks on Hills and "' Smith v. Baker, 1 Atk. Pownton, in Sugden on Pow- 380. ers, Appendix, No. 0. p. 550. " Weeks v. Gore, Vin. Abr. k Cooper v. Cooper, 2 Vern. tit.Copyhold, (M. A.) Cas. 24. ACCIDENT AND MISTAKE. 59 kind Copyhold, where the intent of the will appears to be, that the eldest son should have the copyhold, paying a legacy thereout to the younger son °. Where a Surrender is supplied for creditors, an account will aho be directed of the rents and pro- fits from the time the copyhold estates are held to pass ; for, from that time the customary heir is a mere trustee: and this, though the heir be an infant p ; but in the case of a younger child guilty of great laches in not asserting his claim, (as for fourteen years,) an Account was decreed only from the time of filing the bill' 1 . The plaintiff, where a surrender is supplied, usually pays the costs r . In cases where there are joint bonds, the Court has in causes, as well as in bankruptcy, sometimes inferred from the nature of the condition and of the transaction, that it was made joint, by mistake, and has rectified it 8 ; decreeing, in a cause, that a new bond shall be executed joint and several; and, in cases of bankruptcy, that proof shall be made accordingly : it being supposed in these cases, that the bond, though joi t only, was in- tended to be both joint and several'. Parole 9 Bradley v. Bradley, 2 Vera. r Banks v. Den^haw, 3 Atk- 163. and the cases mentioned 587. S. C. 1 Ves. 03. in note to Watts and Bullas, 'Simpson v. Vauehan.2 Atk. 1 P. Wms. GO. 33. p Kidney v. Coussmaker, ' Uoderhill and Horwood, 12 Ves. 158. 10 Ves. 227,8. * Cook v. Arnha.n,3 P. Wms. 288. in note l;and S. C. MS, 60 EQUITV JURISDICTION. evidence may be adduced to prove, that words taken down in writing were contrary to the con- current intention of all parties ; but, as before ob- served, it must be strong irrefragable evidence w . It has been holden that a Mistake of Parties as to the law, is not a ground for reforming a deed founded on such mistake. As where an Annuity mi was granted, but no power of redemption con- tained in the deed, it being mistakenly thought by y the parties it would make the transaction usurious, relief was refused v . Whether ignorance of law will entitle a party to open an account, has been doubted w . So, if two persons are bound in a joint obliga- tion, and the obligee release one of them, not supposing that he thereby discharged the other, as, in Law, he does ; yet the rule, ignorantia juris non excusat, applies, and Equity will not interfere*. So, where a Copyhold was devised to A. for life, with remainder to his first and other sons in tail, remainder to D. in fee. A. 's wife being privement enseint of a son, he was advised to buy the re- version in fee from D., and take a surrender to his own use, which would merge his estate for life, and destroy the contingent remainder, there being then no issue born. He accordingly bought the reversion of the remainder-man. This transaction " Shelburne v. Inchiquin, w Langstaff v. Fenwiek, 10 1 Bro. C. C. 341, 344. Ves. 400. 'Lord Imham againstChild, x I J arm an v. Camra, 4 Via. 1 Bro. C. C. 92. and see Lord 387, Portmore against Morris, 2 Bro. C. C. 290. ACCIDENT AND"M It TAKE. Q{ proceeded altogether on a mistake of the law ; for the freehold and inheritance being in the lord, that pi tected the contingent remainder. A. brought his bill under these circumstances to be relieved, against the security given to the rever- sioner for the purchase of the reversion, he being under a mistake ; but " Per Cur. Pay principal, interest, and costs, or be dismissed with costs 1 ." There are, however, several cases in which a party has been relieved from the consequences of acts founded on Ignorance of Law z ; and in one case a it was said that, the maxim " ignorantia juris non e.vcusat,'' was in regard to the public, that ignorance cannot be pleaded in excuse of crimes, but does not hold in civil cases. Ignorance is not mistake b , and Relief, it is very clear, cannot be given on a supposition merely that parties are ignorant of the legal effect of their acts. If, for instance, a tenant for life pays off an incumbrance, and takes a release of the debt which he paid off, it cannot be contended he meant to continue it as a subsisting debt; or if a tenant for life, by planting or otherwise, improves his estate, such improvements are not claimable, as distinct from the freehold. Nor will Mistakes of Judgment be relieved D 'Mildmay v. Hungerford, Stockley v. Stockley, 18 Ves. 2 Vem. 243. 30. Jones v. Morgan, 1 Bro. ' See Lansdowne v. Tans- C. C. 210. Gee and Spencer, riowne, Mos. ant. Pusey v. 2 Vera. '62. Desbouvere, 3 P. Wms. 315. ' Lansdowne v. Lansdowne, Pullen v. Ready, 2 Atk. 591. Mos. oM>4. and what is said of thatcase in b 5 Ves. 14. 62 EQUITY JURISDICTION. against. If an Agreement or Composition of a cause be made, the Court will not, upon the ques- tion whether either party is in the right or wrong, overturn an agreement made by parties, .'with their eyes open and rightly informed . And where deeds have been executed to esta- blish the peace of a family* 1 ; or where there has been a purchaser for a valuable consideration', though parties may have acted under a mistaken apprehension of their rights, relief has been re- fused. But in general, Agreements relating to real or personal estate, if founded on Mistake, willfor that reason beset aside. As where a person entitled to a share in the distribution of the personal es- tate of an intestate, makes an agreement under the supposition that the distributive share is of such a value, and it turns out that the share is of greater value, a court of Equity will set aside an Agreement originating in such amistake f . So, where A. purchased an estate of JB., which, in fact, was the estate of A. — A. was allowed, on the ground of mistake, to have the purchase-money refunded, though there was no fraud in B. who apprehended he had a right to the estate 5 . And in such cases, it seems, a Mistake may be c Browne v. Pring, 1 Ves. f Corking and Pratt, 1 Ves. 408. Sen. 400. d Frank v. Frank, 1 Ch. Cas. * Bingham v. Bingham, 84. Stupilton v. Stapilton, 1 Ves. 120. 1 Atk. 10. c Warner v. Wtfkins, 2 Atk. 8. ACCIDENT AND MISTAKE. taken advantage of, even after considerable lapse of time, (seven years, for instance* 1 .) but not afti c a long acquiescence under the mistake, and nei- ther party aware of it '. Another very hard case illustrates the princi- ple: — A Mortgage]Deed came into the hands ofan executor, who receives the money^sfcured bv the mortgage, and pays it away to histestator's cre- ditors. It afterwards appears that the mortgage had been satisfied in the testator's life-time. A bill was fded against the executor to be relieved for this overpayment, and relief was decreed, al- though the money had been paid away by the executor, and the executor was driven to sue the creditors whom he had, through mistake, paid k . But where both parties have been mistaken, and the fact about which they were mistaken was, from its nature, doubtful, at the time of the agreement, and equally unknown to both parties, a co< rt of Equity has refused relief. As where there was a contract for a piece of ground, which was about to be inclosed, for £~20, and it turned out to be worth .€200, yet neither party knowing the value, although the contract was to be perform- ed infuturo, a specific performance was decreed 1 . It has also been determined, that if A. knowing there to be a Mine in the estate of B. of which he knew B. was ignorant, should enter into a con- * East v. Thornbcrry, 3 P. k Pooleyand Ray, 1 P.Wmfc Wow. 125. 354. ' Nicholls v. Leeson, 3 Atk. ' See the case cited by Lord 573. Vaughao v. Thomas, Chancellor in Mortimer ami 1 Bro. 550 f Gapper, 1 Bio. C, C. 158. 0*4 equity jurisdiction. tract to purchase the estate of B. for the price of the estate, without considering the mine, the court, it seems, will not set it aside m . It is essentially necessary in order to set aside such a transaction, not only that a great advantage should be taken, but it must arise from some ob- ligation in the party to make the discovery"; which brings it to a case of fraud. If instruments be delivered up by mistake, and owing to ignorance of a transaction which would have made it conscientious to hold the instru- ment, and proceed at Law, a court of Equity will relieve . Equity will not relieve against mispleading p , or the inattention of parties in a court of Law, as neglecting a proper defence % or to move for a new trial 7 in proper time ; but if a plaintiff, at Law, recovers a debt against the defendant, and the defendant afterwards finds a receipt under the plaintiff's hand, or that the plaintiff's own book appears to be crossed, Equity will relieve 5 ; and this seems reasonable, inasmuch as the courts of Law would not, in such case, grant a new trial*. And, where in an action against a bankrupt, he, for want of his commission, was unable to sup- m Fox v. Mackreath, 2 Bro. r Bateman v. Willoe, 1 Sch. C. C. 420. andLetr. 201. n lb. * Countess of Gainsborough East India Company v. v. Clifford, 2 P.Wnis. 426.;but Donald, 9 Ves. 275. see Barbone v. Trent, 1 Vern, p Stephenson v. AVilson, 176. 2 Vern. 325. Blackball v. ' See Marriott v. Hampton, Comb?, 2 P. Wms. 72. 7 T. R. 209. q Ware v. Horwood, 14 Ves. ACCIDENT AND .MISTAKE. Go port his plea of a certificate, he was relieved, and a perpetual injunction granted". So, where a defendant tailed at law for want of proving a copy of a judgment, a perpetual in- junction was granted, the matter being such as was examinable in Equity, as well as at Law v . In regard to Mistake by Arbitrators, it has been holden that, if an Arbitrator in his award make a plain mistake, either in the Law, or in the Fact", a bill in Equity may be filed against the party in whose favor the award is made x , to set aside the award ; but if a question oi Law be expressly referred to an arbitrator, there, though the arbitra- tor is wrong in his conception of the law, the award cannot be remedied y : and though the law be not referred, if it be a doubtful point of law upon which the arbitrators have decided, and the Court on great deliberation should be of a differ- ent opinion, the award will yet be good 1 . It has been doubted whether altera general re- ference to arbitration, by parties in a suit, de- pending in the Court of Chancery, and made an order of a Court of Law, such order, by virtue of the statute a , excludes the equitable jurisdic- u Blackball v. Combs, 2 P. C Ves. 282. Young and Wul- Wms. GO. ter, 9 Ves. 304. " Kent and Bridgmau, 2 * Anon. 3 Atk. f>44. Fq. Abr. 159. S. C. l'ree. Ch. » Young and Walter, 9 Ye?. 233. 364. S.P. v. Morgan, MS. w Ridout v. Payne, 3 Atk. and see 14 Yes. 271. in note; 494. and S. C. 1 Ves. 11, 12. see also Ching v. Ching, (j Ves, < orueforth v. Geer, 2 Vern. 282. 70'.. Metcalf and Ives, 1 Atk. ' 2 Atk. 494. C3: but see Ching v. Ching, * 9 and 10 Wm. 3. c. 15, VOL. I. F 66 EQUITY JURISDICTION. tion over awards, in cases of Mistake''. If one condition of the submission is to be restrained from bringing a bill in Equity against the arbi- trator, a plea of the award, it seems, would be allowed . With respect to Mistakes in settled Accounts they are elsewhere considered' 1 ; but it may here be observed that if an account be settled, and a deed cancelled under a mistake, relief mav be obtained 6 . Mistakes in Wills, are frequently relieved against in Equity. As where there was a mistake in a statement in the Will, and the mistake was clear, and the intention plain, the Court rectified the mistake ac- cording to the intention f . But in all these cases, the mistake must appear on the face of the Will, otherwise, no relief will be given. Evidence as to matter dehors the will, to shew the mistake, is not sufficient 5 . The mistake must be a clear, demon- strable mistake; and wherever there is a clear mis- take or a clear omission, recourse is to be had to the general scope of the will, and the general intention to be collected from it ; but the first thing to be proved is, that there is a mistake h . b Nichols and Chalie, 14 Ves. f Williams agajnst Williams, 265 ; but see Browne and 2 Bio. C. O, 87. Milner and Browne, 1 Vern. 158. Milner, 1 Ves. 100; see also c See Lingood v. Croucher, Phillips and Chamberlain, 4 2 Atk. 390, 7; but see ib. p. Ves. 51. 506. 6 2 Atk. 373. d See tit. Account, post. h See Kidout v. Dowding, • East India Company v. 1 Atk. 419. Mellish and Mel- Neave, 5 Ves. 173. listh, 4 Ves. 47. ACCIDENT AND MISTAKE. 61 Where a Testator by his Will gave legacies to A. and B. describing them, as grand-children of C. and their residence in America, and by a codicil he revoked these legacies, giving as a reason that the legatees were dead ; but that, not being true, it was held that the will was not revoked, and that they were entitled to the Legacies, upon proof of identity \ So, where the residue of three per cent. Annuities was given to the two daughters of A., and A. had three daughters: they all, on the ground oi mis- take, were decreed to take equal shares'. And, where a specific sum was given as a residue and miscalculated, the real residue was allowed to pass k . So where a testator gave a sum, part of his four per cent. Bank Annuities, to his wife for life, and after her decease to several relations ; evidence was admitted to shew that the testator had no such stock at the date of the will, having pre- viously sold it all, and invested the produce in Long Annuities, and how the mistake arose ; and upon such evidence the legacies were established'. If the testator had had the stock at the time, the legacy would have been considered as specijic, and that he meant that identical stock ; and any act of his destroying that subject would be a proof of animus revocandi ; but if it is a denomina- u Campbell v. Freuch, 3 * Darners against Manning, 321. 2 Bro. C. C. 18. ' Stebbing v. Walkey, 2 Bro. ' Selwood v. Mildmay, 3 Ves, (.'. C t~5, and the cases men- 30G. See a similar eas*, Door tinned in the argument of Mr. v. Geary, 1 Ves. '255. I F 2 08 EQUIT? JURISDICTION. tion, not the identical corpus, in that case, if the thing itself cannot be found, and there is a mis- take as to the subject out of which it is to arise, that will be rectified 1 ". If a fling- or a Picture be given, and neither can be found, the mistake cannot be rectified". A Mistake in the name of a Legatee, may be corrected in favor of the legatee by articles of de- scription, sufficiently pointing out the person intended to take", and this, though both the Chris- tian and 8 tin a me be mistaken p . So, in the case of a legacy, parol evidence is admissible to ex- plain a nick-name, or where there, arc two per- sons of the same name *>, but not to fill up a blank in a will r . In cases where evidence is ad- mitted and operates, it must be conclusive, to have effect : if it affords only a high degree of probability 9 , it is insufficient. Where the words used in the gift of a legacy are plain, evidence as to the intention, and to shew there was a mistake as to the fund, is in- admissible l . Some such evidence was reluc- tantly admitted in one case u ; but there, it seems, the peculiarity of the will furnished sufficient m Sel wood v. Wild may , 3Ves. " See 5 Co. 08. 310. « Bay lis v . Attorney Gen, n lb. 310. 2 Atk. 239. " Rivera case, 1 Atk. 410. s See Holmes v. distance* see Parsons v. Parsons, 1 Yes. 12 Yes. 279. Del Ware against Jun. 260. S. C. noticed arg. Kebello, 3 Bro. C. C. 440, and 3 Bro. C. C. 447. S. C. 1 Yes. Jun. 412. p Beaumont v. Fell, 2 P. * Chambers v. Winchin, 4 Wins. 140. Goodinge v. Good- Yes. 070. inge, 1 Yes. Sen. 231, 61. Dow- u Fonnerauv. Poyntz, 1 Bro. sett v. Sweet, Ambl. 175. C. C. 472. A CCO UN I. 69 doubt to warrant the admission of collateral evi- dence to explain it v . Where a Will is cancelled by mistake, or on a presumption that a latter will is good, which proves void, this will not let in the heir, but is relievable in Equity w . 9. Account. The Jurisdiction of Courts of Equity in matters of Account has been sometimes supposed to have arisen on the ground, that the accounting party was considered in the light of a trustee *. It seems, however, that the principle upon which courts of Equity originally entertained suits for an account where the part}' had a legal title, was, that though he might support a suit at Law, a court of Law could not give so complete a remedy as a court of Equity ; and, by degrees, courts of Equity assumed a concurrent jurisdiction in cases of Account. The s&me species of Relief is given at Law in the action of Account, as under a bill in Equity; but the great advantage of the latter, and the difficulty and delay where the account comes before auditors, has brought that action into disuse 1 '. *1 Bro. C.C. 4^0. 279. and see 11 Yes. 155. "Onions v. Tyrer, 1 P- O'Connor v. Spaight, 1 Sch. & Wins. 345, 6. Lefr. 309. and 2 Ves. 388. ■ s.-e 4 Yin. Abr. 533. and 1 vol. Selwyn's Abridgement, what Lord Ersfcine pays, 13 p.l. Mitford's Pleadings, p. Ves f 288.bat seelVes. Jun. 110. The most recent case 4'20. of an action ofaccountj is re- J The Corporation of Car- ported in 3 Wills. 73, lisle v. Wilson, 13 Ves. 276, 70 EQUITY JURISDICTION. If the right at Law be doubtful, an issue is directed, and if the right be established, the ac- count follows 2 ; and, in general, where the party cannot recover at Daw, a bill for an Account is not sustainable. a Dealings between a tradesman and customer , may be thesubject of Account in Equity, especially in the case of securities obtained from an extra- vagant young man on misrepresentation b . It is not, however, every case where the defen- dant owes more to the plaintiff, that forms a ground for a bill for an Account. There must be mutual demands, forming the ground c ; a series of accounts on one hand, and a series of payments on the other, and not merely one pay- ment and one receipt (1 ; and if the subject is matter of set-off\t Law, and capable of proof, a bill will not lie ". The case of Dower is always consider- ed as standing upon its own specialities; and so is the case of a Steward f . Where there havebeen various dealings between Landlord and Tenant, so as to produce an account too complicated to be taken at Law, and the land- lord brings an ejectment for non-payment of rent, the tenant may fde a bill, before judgment at law, for an account, on the footing of those dealings, and to have the balance applied to the rent claim- * Vid. Milbourn and Fisher, d Weliiugs and Cooper in Ves. 685. in Note. Exchequer, cited by Romilly, ■ 13 Ves. 278. MS. and see 9 Ves. 473. b Lord Courtney v. Coda- e Dinwiddie v. Bailey, 6 Ves. chall, 9 Ves. 473. S. C. MS. 136. 1 Dinwiddie v. Bailey, 6 Ves. f 6 Vez. 136, 136. ACCOUNT. 71 ed to be due, and the tenant need not bring in the rent under the statute, 4 Geo. I.e. 5. g The court gives an account in the case Mines*) because it is in the nature of a Trade'; and in the case of Timber cut down k , to prevent a multi- plicity of suits 1 ; though as to this, if there is not aground for an Injunction to restrain Waste, as ■where more timber is threatened to be cut, the party must go to Law'". Lord Thurlow, indeed, appears to have thought that, where a Tenant for life, punishable for waste, fells timber, a Bill for an account by a Remainder-man in fee, lies against him, on the ground, that the Tenant for life has made himself Bailiff to the plaintiff"; though that does not seem very consistent with the doc- trine in the same case, viz. that the remainder- man must take the money the timber produced, and not the real value of the timber, which even acourt of Law would have given him°. A factor (unless he be an infant 1 ',) is compella- ble to account in Equity, and likewise for a deceased Co-Factor q ; and the representatives of a Factor are accountable". A conuzor has a right to file a bill for an Ac- count against a conuzee, to see if the conuzee upon * 1 Scli. and Lefr. 305. etc. n I.ee v. Alston, 1 Ves. Jun. h Bishop of Winchester v. 82. S. C. 1 Bro. C. C. 190. Knight, 1 P. Wms. 400. ° Lee against Alston, 3 Bro. 1 Storv v. Lord Windsor, C. C. 38. 2 Atk. 030. p Smaller v. Smalley, 1 Eq, k 1 P. Wms. 400. A>r. 6. 1 Pultenev v. Warren, G Ves. q Holtscoml) v. Rivers, 1 Cli. 89. Cas. 127. S. C. 1 Eq. Abr. 5. m 1 P. Wms. 406. Jesus Coll. r Nek. 125. S. C. 1 Eq. Abr. r. Bloom, 3 Atk. 202. 6. 72 EQUITY JURISDICTION. the extended value under an elegit has received a satisfaction for his whole debt 8 ; but in these cases, it has been said, the Tenant by elegit is never made to pay costs 1 . An heir cannot, merely as heir, file a Bill for an Account, unless he states an impediment to his recovering at Law : as that, the defendant has the title deeds necessary to maintain his title, or that terms are in the way of his recovery at law ; or some other legal impediments, which do, or ma) 7 probably, prevent it: upon which probability, or upon the fact, the Court founds its jurisdic- tion u . Bills of this description are what are termed Ejectment Bills, and as in these cases, Avhere the validity of a will comes in question, it cannot be determined by a court of Equity, it sends that to be determined by the pro- per tribunal, by directing the heir to bring an Ejectment, providing, at the same time, that the defendant shall not set up at Law a term satisfied or unsatisfied v ; and those obstacles being removed, and a trial had in that way under the controVil of a Court of Law, they come back for the account, the deeds, &c. which course leaves all the incum- brances just as much incumbrances as if the possession had not been changed. There is great convenience in giving relief in that shape rather ' Yates v. Ilambly, 2 Atk. 89. and see Dormer v. Fortes- 362. cue, 2 Atk. 284. 1 Owen against Griffith, * See Leighton v. Leitrhton, Anibl. 520. 1 P. Wins. 071. " PulUneyv. Warren, 6 Ves. AC COL' NT. than by directing issues*; for the question whe- ther anew trial should or should not be had, is discussed with much more satisfaction, where the trial was had, than in the court out of which the issue was directed. In bills, however, of this description, there must, it seems, be some averment upon the Record, as well' as proof that those obstacles do exist, which may prevent an ejectment ; the admission of such obstacles, by infants, is insufficient". With respect to the Account ordered of Rents and Profits of Estates, in these and similar cases, the rule appears to be, that where a man brings his bill in Equity, in respect of a trust, and upon a mere equitable title, he will in Equity recover the Es- tate; but as upon a legal title at Law no more than six years mesne profits are recoverable, so where anEstate in trust, is recovered in Equity, the ac- count of rents and profits is not extended beyond six years y ; and under special circumstances, the Court will only decree an Account of Rents and Profits from the time of bringing the bill. As where the defendant had no notice of the plain- tiff's title, nor had the deeds and writings in his custody, in which the plaintiff's title appeared . or where the title of the plaintiff appeared by deeds in a stranger's custody. So, where there hath been any default or laches in the plaintiff w As was done in Pemberton 749, 750. Stackhouse v. Bam- and Pemberton, 13 Ves. '2*J0. ston, 10 Ves. 409; but sec what x Pembertoq v. Pemberton, is said in Dormer v. F«»r*. -• ue, J3 Ves. 29a 3 Atk. 130. I Ste Reade v. Reade, 5 Ves. 74 EQUITY JURISDICTION. in not asserting his title sooner*, and he has lain by, the Court has often thought fit to restrain it to the filing of the bill. In the instance of a bill brought by an infant to have possession of an estate, and an Account of Rents and Profits, the Court will decree an account/rom the time of the infant 1 s title accrued; for every person who enters on the estate of an infant, is considered as enter- ing as guardian or bailiff for the infant a : and so says Littleton. Where, indeed, there is a ver- dict against the infant's title he can have no Ac- count till he has recovered at Law, and the bill will be retained, and a trial in Ejectment di- rected b . There are other cases where the Court will, merely upon a legal title, give the account from the filing of the Bill, as wherever the plain- tiff has been kept out of the Estate by the fraud, misrepresentation, or concealment of the defendant . If there is no trust, nor infant d in the case, nor any entry made by him, who is entitled to the mesne profits, Equity will not decree an account of rents and profits until a recovery has been had f . But where a discovery is necessary of the deed under which the plaintiff's title arises, and relief is prayed to have it produced at all trials at 1 See Lockey v. Lockey, c 3 Atk. 130. and Bennett Pree. Ch. 518. v. Whitehead, 2 P. Wins. 045. " Dormer v. Fortescue, 3 where the deeds and writings Atk. 130; see Yallop and Hoi- making the plaintift'stitlewere worthy, 1 Eq. Abr. 7. New. concealed by defend ant,Towns- burgh v. Bickerstaffe, 1 Vern. hend v. Ash, 3 Atk. 340. 29G. and see Pettiward v. d Roberdan v. Rous, 1 Atk. Prescott,7 Yes. 541. 544. b Newburgh v. Bickerstaffe, e Norton v. Frecker, 1 Atk* 1 Vern. 295. 525. ACCOUNT. 7 .) Law, and to have attested copies, an account of profits will be decreed, without having the title first established at Law, if there is no doubt as to the title*. In all cases where questions have arisen about Sharesin Wuttr-icorks, the parties have constantly resorted to Equity for mesne profits, though it is a legal Estate, and a corporeal Inheritance 8 . Where a person has been ejected at Law, and the other party has been in possession above tvccntij years, and no account demanded, or bill filed in that time, the Statute of Limitations^ will bar an account in Equity, as well as an action for the mesne profits at Law; but this statute does not extend to a trust '. Under the head of Account, it is, that Part- nership Dealings form a subject for equitable interference ; nor will a Court of Law direct a Partnership Account to be taken 3 . But the Partnership must not be illegal, as in Under- writing, for in such case, a bill for an Account will not lie b . It has been holden that a Court of Equity has Jurisdiction against a Corporation on a bill for an Account of Profits, in the nature of a Partner- ship ; and this, not only at the instance of a member, but of a stranger . ' Townshend v. Ash, 3 Atk. 3 Bos. and Till. 2S0. and Wat- 337. son's Partnership 107. see also g 3 Atk. 337. King v. Whitstaple Comp. " 21 Jac. 1. 7 East. 353. what Lawrence, 1 Nevture andRutton, Vin. Just. says. Abr. Tit. Account, (D. A.) b Knowles v. Haughton, pi. 7. 11 Ves. IG8. S. C. MSS. » See Chapman and Koops, \ See 17 Ves. 315. 7(5 EQUITY JURISDICTION. Partners are joint-tenants in the stock and all effects, and not only in that particular stock in being at the time of entering into the Partner- ship ; but they continue so throughout, whatever changes mav be made in the course of trade c . If a person becomes by his acts a Partner, in a Colliery, for instance, in which land is necessary to carry on a trade, the interest in a lease will pass as an incident to the trade, by operation of Law, and is not affected by the Statute of Frauds d . Being thus seized per my et per tout, where an Account is to be taken, each is enti- tled to be allowed against the other every thing he has advanced or brought in as a partnership transaction, and to charge the other in that Ac- count with what he has not brought in, or has taken out more than he ought: and nothing is to be considered as his share, but his proportion of the residue in the balance of the Account 6 . A Judgment and Execution against one partner for his separate debt, does not put the other in a worse condition ; for he must have all the allow- ances made him before the Judgment Creditor can have the share of the other applied to him. So, if one partner dies, the debts and effects sur- vive; but the survivor, unless it is expressly provid- ed otherwise f , is considered in Equity, (except as to the^ooof wilt of the trade, which survives, and is not partnership stock p ,) barely as a trustee for the re- r 1 Ves. 242, 3. and see Lvster e West v. Skip, 1 Ves. 242, 3. v. Dolland, 1 Ves. Jim. 4-35. f Peace v. Chamberlaine, * I'orster v. Hale, 3 Ves. G9G, 1 Ves. 33. 5 Ves. 308. 8 Hammond v. Douglas, ACCOUNT. 77 preservatives of the deceased, upon which footing the Account would be taken, and nothing con- sidered as the share of the survivor till afterward \- which is from tin 1 continuance of the property in the stock to the representative of the deceased partner, who has a specific lien thereon, although the survivor afterwards dies or becomes bank- rupt. So, if the partnership is dissolved by con- sent, or by effluxion of time ', that determines not ihe legal interest, which continues as before; so that the property in the stock of the partner so going out is not divested thereby; but he remains equally entitled as Joint-tenant with the other: and in a bill for an Account, the stock would be subjected for his satisfaction. As between one partner, and the separate creditors of the other, ihe separate creditors cannot affect the stock any farther than that partner could whose creditors they are k ; and if they proceed against the part- nership property, the partners may file a bill to be quieted in the possession of the partnership effects, and pray for an Account of what is due to the partner so giving a security, and for an injunction in the mean time'". Where there has been afair dissolution of part- nership between two; and one by agreement retains the partnership effects, and afterwards 5 Yes. 530. Sed Vid. Crtishaw ' 1 Ves. 243. and hee Ekp&rte y. Tollius, 15 Yes. 227. Smith, 5 Ves. 297. '' 1 Ves. 243. and see as to k West and Skip, lVes. 24:} tins, Croft v. Pyke, li P. "and see Young v. Keighley, Wms. 182. and Ex parte 15 Yes. 557. Williams, U Yes. 5. and Kx- 'Taylor v. Fields, 15 Ves, parte K umn, G Ves. 12<>, 7. in note. 73 EQUITY JURISDICTION. becomes a bankrupt, the joint creditors have no right as against what was joint property, remain- ing in specie"'; for by the agreement the joint became separate Estate. A partnership, without any agreement for con- tinuance, may be dissolved at any time when either party thinks proper, subject to the proper Accounts ; but all the subsisting engagements must be woundup: and for that purpose they remain with a joint interest; but they cannot enter into new engagements. If after such disso- lution, the trade be carried on by any of the part- ners, such partners are liable to account for the profits produced by such trading . Where a partnership is so dissolved, a bill may- be filed for an Account, and to restrain the de- fendant from using the partnership name, and receiving the partnership debts p . i\\ on a bill filed for an Account of partner- ship transactions, the defendant denies that he is a partner, he may refuse to set forth an Account q ; but the Court, in such case, directs an issue, as to whether a partnership exists or not ; and if the result of the issue is that he is not a partner, the bill is then dismissed '. The Statute of Limitations is no plea in bar to "" Exparte Ruffin, G Ves. Crashaw v. Collins, 15 Ves. ] 19. Exparte Williams, II Ves. 218. 3. and see Exparte Fell, 10 p Master v. Kirton, 3 Ves. Ves. 347. 75. n Peacock v. Peacock, 1G q Marquis of Donegal v. Ves. 50, 57. Stewart, 3 Ves. 440. " Fe;itherstonhaugh v. Fen- r See Peacock v. Peacock, wick, 17 Ves. 310. and see 15 Ves. 52. and see Binford v. Domnutt, 4 Ves. 750. ACCOUNT. TD an open Account 9 ; but though length of time forms no bar to an account, as between merchant and merchant^ yet if dealings between them hive ceased for several years, and one of' them dies, and the surviving merchant brings a bill for an Ac- count, the Court will not decree an Account, but leave the plaintiff to his remedy at Law 1 . Length of time cannot be set up as matter of law, l>\ dun urrer, as a compleal bar to an equitable demand; for length of time operates as a bar, not pro prio jure , but as a fact shewing acquiescence : and a party cannot avail himself of an inference from facts on a demurrer"; but length of time may be urged with great effect at the hearing of the cause ; for it is a rule founded on principles of public policy" , that parties shall not, by neglecting to bring forward their demands, put others to a state of inconvenience subjecting them to in- superable difficulties : every presumption, there- fore, that can fairly be made, will be made, against a stale demand. Indeed, the very forbearance to make a demand is considered as affording a pre- sumption either that the claimant is eonscious it was satisfied, or intended to relinquish it\ " A Court of Equity," says Lord Camden, ' Scndamore v. White, 1 * Pickering v. Lord Stami brd, Vera. 456. 2 Ves. Jan. 280, 582, '-i. and 1 Sherman v. Sherman, 2 see Doleraine v. Browne, S Vern. 270. and see Bridges v. liro. Ch. C. p. 633. and Whap- Mitchell, Gdb. Eq. Rep. 225. ham v. Wingfield, 4 Ves. and u Doleraine against Browne, Higgins v. Crawford, 2 Ves. 3 Bro. C. C. 638. jun.572. Brownell v. BrowneU, w See Hercy against Din- 2 Bro. C. C. 63. and see Stmt woody, 4 Bro. 268. v. Mellish, 2 Atk. . SO I.QU1TV JURISDICTION. *' which is never activein relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith and reasonable diligence: where these are wanting, the Court is passive and does nothing. Laches and neglect are always dis- couraged; and therefore from the beginning of this jurisdiction there was always a limitation to suits in this Court*." Where, therefore, a party has lain by for a great length of time, and suffered an Estate to be dis- tributed, he cannot insist on an Account *; but on the other hand there are cases when, where parties are not called upon to refund what has been ap- plied, and the Accounts are clear, relief has been given, notwithstanding great length of time has elapsed 3 . A release, if under seal, may be pleaded in bar to a Bill for an Account b ; and so may a stated Account in writing , or it may be insisted on in an answer A i If the Bill not only impeaches an Ac- count, but charges, the plaintitf has no counterpart '•>' Smith v.Clay, Ambl. 645. * As in Pickering v. lord but see judgment more fully Stamford, 2 Ve». 581. see reported, 3 Bio. C. C. 039. in Astrey's case, 2Freem. 55. note; and see Lacon v. Briggs, b Mitford Pleadings, 209, 3 Atk. 105. 210. 2 Hercy against Dinwoody, c lb. 208. 2 Atk. 399. 3 Bro. 4 Bro. 257. and see Smith v. C. C. 170. Clay, 3 Bro. C. C. p. 539. d Sumner v. Thorpe, 2 iu n. S. C. Ambl. 045. but not Atk. 1. t >o full. See also Doleraine v. Browne, 3 Bro. C. C. 040. ACCOUNT, SI and the defendant pleads a stated Account, lu; must annex it to his Answer". If error or fraud are charged, they must be denied by the plea as well as by way of answer ; and if neither error or fraud is charged, the defendant must by his plea aver that the stated Account is just and true, to the best of his knowledge and belief f . A stated Account, to be good and pleadable as such, need not be signed by the party ; for it is not the signing, but the person to whom the Account is sent, keeping it by him any length of time without making any objection, which binds him, and prevents his entering into an open Ac- count afterwards". It is said, that among merchants, it is looked upon as an allowance of an Account current, if the merchant who receives it does not object against it in a second or a third post h . And with respect to Foreign Merchants, if one Merchant sends an Account current to another in a different Country, on which a balance is made due to himself, and the other keeps it by him two years without objection, the rule in Equity and of Merchants, is, that it is considered as a stated Account \ Where a Fraud appears in a stated Account, the whole will be opened though of a great many years standing 11 . And though an Account be settled by Arbitrators, it is not conclusive, if any ■ TIankey v. Simpson, 3 Atk. h 2 Vern. 27<5. 303. • Denton v. Shellard, 2 Y< >. ' Mitford'a Pleadings, p. 208. 2W. F Willis v. Jeraegan, 2 4tk. k Vernon v. V aw drey ,2 Atk. 252. 110. VOL. I. G 82 EQUITY JURISDICTION. error can be shewn in the Account '. But it' a Bill be filed to impeach a settled Account, specific Errors must be shewn '", except, perhaps, in the case of an Attorney, where upon the face of the Account, the Attorney admits that he has not given credit, and produced that state of his affairs, that the Client was entitled to have"; but where the Accounts are not sought to be set aside for fraud, but, letting them stand, it is sought to surcharge and falsify them, it is a fixed Rule that some error must be charged, and this though the Account contain the usual words ' : Errors ex- cepted' 1 :" for it is impossible for the Defendant to defend himself, if under a general charge, not specifying any error, the Plaintiff may come at the hearing with the proof of those errors, of which the Defendant has heard nothing p . There must be error enough upon the Bill to shew there is reason for it ; the Plaintiff proves some of those Errors and gets a Decree q . Where a Bill was filed for an Account, and a settled Account was suggested by the Answer, but not proved, Liberty was given in the Decree to surcharge and falsify, if the Master should find any settled Account r . When Parties are thus at 1 Tottenson v. Pout, 3 Atk. 'Chambers v. Goldwin, 9 530. . Ves. 206. Taylor v. Haylin, "' Anon. 2 Freem. 62. Cham- 2 Bro. C. C. 310; and see bers v. Goldwin, 5 Ves. 837. Bourke and Bridgman, 2 Ham. Dawson and Dawson, 1 Atk. 1. 272. Johnson against Curtis, and see Drew v. Power, 1 Sell. 3 Bro. C. C. 200. and Lef. 192. 4 Twogood v. Swanston, "Matthews v. Wallwyn, 4 Ves. 486. Ves. 123. r Kinsman v. Barker, 14 Ves, 3 Bro. C. C. 200. yet see 579. Pnjiid v. Combs, 2 Freem. 183. /CCOUiNT. S'» Liberty, to surcharge and falsify, they are not confined to mere errors of fact, but may take advantage of errors in Law \ Where Liberty is given to surcharge and falsify, the onus probanili is always on the party having that Liberty; for the Court takes it as a stated Account and establishes it ; but if any of the Parties can shew an omission, for which credit ought to be, that is a surcharge ; or if any thing is inserted that is a wrong charge, he is at liberty to shew it, and that is falsification ; but that must be on proof on his side : and that makes a great difference between the general cases of an open Account, and where only leave is given to surcharge and falsify, for such must be made out'. It has been laid down as a Rule, to be departed from only on very special circumstances, that a Man standing in the Relations of Agent, Auditor, Land Steward, and Manager, is bound to keep regular Accounts of his transactions on behalf of his Employer ; not only Accounts of Payments, but Accounts of Receipts : and if he has neglected to keep regular Accounts, he will not be permitted to make a demand for Work and Labour in that character, with reference to which, he has kept no' Account v . * Roberts v. Kuffin, 2 Atk. v White v. LaJv Lincoln, 112. S. C. Barn. 259. 8 Ves. 3G9, 371, \i7'\ Lwptoa 'Pit v. CWmondeley, 2 v. White, 15 Ve*. 432. V«». £>U*. G 2 54 EQUITY JURISDICTION. And if an Agent or Bailiff has confounded his Principal's property with his own, he is chargeable for the whole, except what he can prove to be his own. Bills for Tythes, are, as matters of Account, very frequent in the Court of Chancery ; but the Juris- diction of the Chancellor in Tythe causes, is, con- fessedly, no part of his proper and natural Jurisdic- tion^ it is not an original Jurisdiction", but was assumed as incidental and collateral to an Account and Discovery. It was not till after the Restoration that the Jurisdiction of the Chancellor, in this respect, was compleatly established y . In the 29th CharlesII.Lord Nottingham declared thattheCourt of Chancery had cognizance in matters of Tythe, as well as the Exchequer, and that the Plaintiff had his choice of the Court z . The Court of Exchequer is the proper Jurisdiction for Tythes % that Court having for Centuries taken conuzance of them ; the ground of which, probably, was, that Tythes were considered as part of the possessions of the Crown, and therefore the Exchequer, as a Court of Revenue, had Jurisdiction respecting them b . Lord Nottingham, however, seems to have dated the origin of the Exchequer Jurisdiction over w Gwillim, Tithe Cases, p. 303. 2 Ch. Cas. 237. there cited. 790. ■ See Gwillim's Tithe Cases, * lb. p. 1080. 2 Ves. jun. p. 1084. 028. 5 Ves. 232. 7 Bro. P. C. a 3 Atk. 247. 110, 111. Toml. Ed. b 2 Freem. 27. 2 Ch. Cas » Vid. Mar. Co. I/itt. p. 159 s . 237. Gwillim 527. note 290 ; and see 1 Freeman, ACCOUNT. S3 Tythes, in the reign of Henry VIII c . There is some difference in these Tythe cases, as to the proceedings in the Court of Chancery and the Exchequer. In the Exchequer, an Account of Tythes is decreed, not for the future, but only up to the time of bringing the Bill ; but in the Court of Chancery, the decree is for an Account of Tythes up to the time of the Decree, as said in some cases d ; or as Lord Hardwicke says, in another case, " down even to the time of the Master s Report';" or as Baron Clarke says, in a third case, " an Ac- count for Tythes may be carried on, as long as the suit is depending between the Parties { . )> It is observ- able also, that though the Demand for Tythes be ever so small and inconsiderable, yet still a Bill in Equity may be filed for the recovery of them K . Where the title to Tythes is clearly made our, the Court of Chancery, or the Court of Exche- quer, decrees an Account; and where a modus or real composition is pleaded and supported by reasonable Evidence, it is the practice to direct an Issue at Law before they decree against the Common Law right of the Parson. The issue from the Court of Chancerv is tried in the Kind's Bench or Common Pleas ; and an Issue from the Exchequer, is tried on the Law side of the same Court 11 .. c Vid. Har. Co. Litt. p. 159. ' Bell v. Read, 3 Atk. n.4. and Hard. 23<>. 1 Frcera. s 4 Bro. P. C. p. 314.Gwil- 303, there cited. lim, p. 730. d Vid. 2 Atk. 13G. 2 P., » Vid. Lvgon and Strutt, Wins. 4()3. Carleton v. Bright-" 2 Anstr.001. Baker and Athill, well. 2 Anstr. 493. c 2 Atk. 137. 35 EQUITY JURISDICTION. By the 3?th Henry VIII. ch. 12. ?. 19 and 20. it is directed, M that if any variance arise in the city for non-payment of Tythes, or if any doubt arise upon the division of any rent, or Tythes. or of any assessment thereof, or upon any other thing contained in this Decree, upon com- plaint made by the party grieved, the Mayor by the advice of counsel shall call the parties before him; and make a final end with costs, to be awarded by the direction of the Mayor and his assessments according to the decree ; but, if the Mayor make not an end thereof within two mouths, or if any of the parties find themselves aggrieved, the Lord Chancellor, upon complaint made to him> within three months next following, shall make an end in the same with costs." But this particular Jurisdiction thus created did not extinguish the antient Jurisdiction, it being a Rule that an Act of Parliament creating a special Jurisdiction, never ousts the Jurisdiction of Westminster Hall, without special Words'. The right of a Court of Equity to decree an Ac- count and payment of Tythes, at the suit of a Per- son claiming such Tythes, must, as before observed, be grounded on a clear, unquestionable, legal right to Tythes in the Plaintiff,, or in some person in '• Hard. 116, 130. Kinaston &c. of St. Paul's v. Morris, and Millar, 2 Dick. 773. and 9 Ves. 155. and Antrobus and garden and Minor Canons of East India Company, 13 Ves. 9. St. Paul's v. Crickett, 2 Ves. * Strut*, v. Baker, 2 Ves. jun. 583. and vid. Warden, jun. 028. ACCOUNT. 87 Trust for him; theright to the Accountbeiog merely consequential to the legal right to theTythes': and Courts of Equity have, therefore, constantly made a distinction between those eases in which the Title of the Plaintiff, to the Tythes claimed, is not generally disputed ; as where it is objected only, that the Lands from which they arc claimed arc exempt, or discharged from payment of Tythes, or that the Tythes claimed are not payable in kind, but are to be satisfied in some other man- ner, as by payment of a modus, or composition real ; and those cases in which the Title to the Tythes claimed is denied to the Plaintiff, and a Title is set up in another Person. In the first description of cases, the Defendant claiming the benefit of an exemption or discharge, or of a modus or real composition, acknowledges the original Title of the Plaintiff, as all edged by him, but qualifies that Title either by an absolute dis- charge from payment of the Tythes demanded, or by a right to satisfy that demand, otherwise than by payment of the Tythes in kind. In the second description of cases-, the existence of that Title to the Tythes in question, which the Plaintiff claims, is absolutely and totally denied, and it is objected, that the Title is in some other Person: and in these cases if the Person, in whom the Title is thus stated, has had pernancy of the Tythes claimed, the Bill is in effect an Ejectment 'lb. and see Foxcraft v. 7 Bro. P. C. 110, 111. Tomlios'a Paris, 5 Ves. 232. and vid. Edition. SS EQUITY JURISDICTION. Bill, and is to be treated like other Bills in Equity, which may be termed Ejectment Bills, in regard to which, the ordinary practice is, not to make any decree whatever, except for the purpose of assisting the Trial of the Title at Law, where such Assistance is necessary 111 . If a Rector, Impropriator, or Vicar, file a Bill for Tythes, they must waive all penalties and forfeitures" under the Statute , for otherwise, the Defendant would not be bound to answer ; but in a Bill for the single value of Tythes, it is not necessary expressly to waive the treble value p , the praying of the single value being considered as a waiver of the penalties. A Waiver in Equity is no bar at Law, but only a ground for the in- terposition of a Court of Equity, which would grant an Injunction against suing for the penalty, as well upon an implied Waiver, as upon the most express q , ro Vid. Carnons v. Bernard, ° 2 and 3 Edw. 6. 7 Bro. P. C. 110. 111. Tom- » Wools v. Walley, 1 Anstr. lins's Edition; Gwillim'sTythe 100 ; and see Bunb. 193, Cases, p. 1470. « 1 Anstr, 100, » 1 Vern, 60. FRAUD, bD III. Fraud. Till the abolition of the Court of Star-Cham- ber, by statute, (16 Car. I. c. 10,) the Chancel- lor does not appear to have exercised any very extensive jurisdiction, in cases of Fraud*. In the Star-Chamber the plaintiff was not only relieved, but the defendant was punished, for his fraudulent conduct: so that recourse was generally had to that Court, in cases of Fraud. When it is considered, what a variety of trans- actions in Civil matters, may be mixed up with Fraud, every one of which, Courts of Equity have a power of sifting to the bottom, through the oath of the fraudulent party, and of relieving against, some conception may be formed of the very extensive nature of the Chancellor's Juris- diction on that most fruitful head of Equity. Before we proceed to the consideration of cases founded in actual Fraud, it is proper to state the principles that have been laid down, with a view, to prevent Fraud. The doctrine on "SeeNott and Hill, 2 Ch. Cas. 120. 1 P. Wms, 310. I Wil- son 329. VO EQUITY JURISDICTION. this subject may be classed under the following- heads : 1. Purchases by Trustees and others, in fiduciary situations, of Trust Property. 2. Transactions between Attorney and Client. 3. Sales or Agreements by expectant Heirs. 4. Gifts by Ward to Guardian, h. Injunctions. 6. Bills of Peewc. 7- Pills of Certiorari. 8. Bills of Interpleader. n. 9. Bills to perpetuate Testimony. 10. Bills of Discovery. ] 1 . Bills Quia Timet. 12. Bills for the delivery up of Deeds, or for securing them, or the delivering up of specific Chattels. 13. Bills to enforce Contribution. 14. Bills in Cases of Dower and Partition, 1.5. Bills to establish a Modus. 16. Bills to nutrshal Securities, These Subjects will be considered in succes- sion. pbevcsttox or niAun. £)1 1 . Purchases by Trustees and others in fiduciary situations, of Trust Property. It is a rule of Equity, that a Trustee shall gain no benefit by any act done by him as trustee, but that such benefit shall accrue to his cestui que trust 1 . Upon this principle, and more especially With a view to prevent Fraud', a trustee is not permitted to become a purchaser of part, or the whole, of the Estate of which he is a trusteed Commissioners*, Assignees'' , and Solicitors, under a Commission of Bankruptcy, whether bidding for themselves or others, are within the operation of this rule, and are not allowed to purchase the bankrupt's Estate. So, too, a Committee is not allowed to purchase the Lunatic '* Estate f ; nor, it seems, can an Executor purchase his Testator's Effects 6 . Governors of a Charity, for the same reason, are not allowed to take leases of the Charity Lands h ; and the rule is applied as between Principcd and Steward 1 ', and also, to an Agentfy but not as between Mortgagor and Mortgagee 1 . ' See Holt v. Holt, 1 Ch. F Burden v. Burden, 18 Ves. Cas. 191. 170. b Lister v. Lister, G Ves. 632. h Attorney Gen. v. Lord Cla- 1 Heme v. Bfeeres, 1 Vern. rendon, 17 Ves. bO 2 Bro. that case in 5 Ves. Jun. 6S2. C. C. G27. 1 Sanderson v. Walker, n Fox against Macreath, 13 Ves. (502. In Ex parte Ben- 2 Bro. C. C. 400. nett, 10 Ves. 393. Lord Eldon ° Ex parte Bennett, 10 Ves. i-> reported to have said that 393. lord Hardwicke in Whelpdale p Whelpdale v. Cookson, and Cookson, " intimated an 1 Ves. 9. opinion that a Trustee might q See lb. 385. 395. and Ex buy at a Sale by Auction;" parte Lacey, 6 Ves. 627. but in this he must have been r Ex parte Bennett, 10 Ves. : unreported, because Lord 385. Hardwicke in that case express- ly decided h*t could not. riiEVENTlOK OF FRAUD. 93 benefit himself, that it has been held that, a Trus- tee could not even purchase, for his own benefit, Property which the owner refused to sell to the Cestui que Trust. As, where there was a Church Lease, and the Trustee applied for a Renewal, and the Lessor declared he would not renew for the benefit of the Cestui que Trust, and thereupon, the Trustee purchased it, (and without objec- tion in point of morality) for his own benefit; but the Court, considering how little power it. has of obtaining; a complete discovery in all cases, held, that the Property should be thrown back to the Lessor rather than the Trustee should have it s : nor could the Cestui que Trust, it seems, under such circumstances, insist on having the Lease *. If on a Purchase by a Trustee, it is found to be for the benefit of an Infant Cestui que Trust that the Purchaser should be held to his Purchase, it will not beset aside v . But though the rule be that a Trustee cannot purchase from himself, he is allowed to purchase from his Cestui que Trust, provided there is a distinct and clear contract, ascertained to be such, after a jealous and scrupulous examination of all the circumstances, and there is no Fraud, no concealment, no advantage taken by the Trustee, of information acquired by him in the character of Trustee r/ . 5 lb. 395; and see Brewett v Sanderson v. Walker, v. MUlett, 7 Bro. P. C. 3fi7. 13 Yes. (*)3. Lister v. Lister, Toirilins's Edit, and Annesley 6 Ves. 031. v. Dixon, ib. 213. w Coles and Trecotliick, 'Seethe case, 1 Sch. and 9 Ves. 246. approved by Lord Lefr. p. 131. 91 EQUITY JURISDICTION*. If an Estate be vested in Trustees for Sale for* the benefit of an Infant, and the Trustee is desirous of becoming a Purchaser, he may file a Hill, for the purpose of carrying- the Trust into Execution, under the direction of the Court, and upon the Sale, apply to the Court for leave to become the Purchaser, upon offering to give more than any other person x . 2. Transactions between Attornies and Clients. From many cases, it appears that, Attornies are not allowed to deal with their Clients upon exactly the same terms upon which men at large may deal with each other a . Transactions liable to no objection as between Man and Man, have, when between Attorney and Client, been overturned, on account of the danger from the influence of Attornies or Counsel over Clients, while having the care of their Property; and whatever mischief may arise in particular caseSj the Law, with the view of preventing public mischief, says, they shall take no benefit derived under such circum- stances. If the Relation has compleatly ceased, if the influence can be rationally supposed also to cease, a Client may be generous to his Attorney or Counsel, as to any other Person b . Knskine, in Morse and Royal, * Campbell v. Walker, 5 Ves. 12 Ves. 373. Vox v. Macreath, 681. 2 Bro. C. C. 400. and see " Newman v. Payne, 2 Ves. S&undersoTJ v. Walker, 13 Ves, Jun. 201. Ml. b Wells and Middleton, 4 PREVENTION OF FKAUD. 95 It is different where the Attorney is also a Relation ofthe Client, and the Client from mo- tives foreign to his character of Attorney, and from a view to prefer him to other Relations, makes a conveyance to the Attorney, for in such case, it will be supported . A Client may make a voluntary gift to his Attorney or Agent' 1 , and if unaffected by fraud, misrepresentation, or circumvention, it cannot he set aside 1 ; but in such cases, third persons ought, from motives of delicacy and prudence, to be called in ; for if not, a suspicion attaches upon the transaction, and so much so, that a Court of Equity will always give a party his costs, where such a transaction is enquired into by pro- ceedings in Equity f . An Attorney may purchase of his Client, but in such case the Attorney, to support his purchase, must be able to shew that he paid the full amount he could have obtained from any other person 8 . The same Rule prevails, in a Sale by an Attorney to his Client \ Bro. P. C. 20, 245. Wood v. see Huguenin and Basely, Downes, 18 Ves. 127. Oldham 14 Ves. 800 ; Gibson v. Jeyes, v. Hand, 2 Ves. 259; and ste C Ves. 277. What is said as to ik'llew v. Russell, 1 Ball and an attorney in Morse v. Royal, Entity, 104. 12 Ves. 378. and in Wright s Bellew v, Russell, ib. and Proud, 13 Ves. 138. do^s d \ id. W.dmesley v. Booth, not seem warranted by the 2 Atk. 30. authorities. e See Cray v. Mansfield, s Harris v. Tn-emenhere, 1 Ves. 37?'. Oldham v. Hand, 15 Ves. p. 42. S. ('. MS. 2 VVs. 209, 549. h Gibson and Jeyes, G Vei. ' Harris v. Treemenhere, 278. 13 Ves. p. 12; S. C. MS. and QG EQUITY JURISDICTION. If an Attorney pendente lite, or whilst lie is doing Business for his Client, prevails upon him to give a Security, or to agree to an exorbitant reward, the Court will interfere' : for no Attorney can take any thing, for his own benefit, pending the suit, save his demand k . As a Guardian cannot take any thing from his Ward pending the Guar- dianship, or at the close of it, or at any period, until his influence has ceased to exist; so, the obli- gation upon an Attorney, to refrain from taking an extraordinary benefit is at least as strong L : nor will a subsequent act be considered as a confirma- tion of the Transaction, unless it be separate and detached, and not done under the force, pressure and influence of the former Transaction 111 . In a case where a Client had given an At- torney a Bond or Mortgage to secure the payment of what was charged to be due to him on account of a Law Suit, the Court relieved the Client, and ordered the Bill to be taxed ; on the ground of the great power and influence that an Attorney has over his Client n . But though there are cases where the Court has ordered the taxation of an Attorney's Bill, after eight °, seventeen p , or twenty-one years, and an actual Security given, and even payment ; * Saunderson v. Glass, 2Atk. 30. See also Newman v. 298. Payne, 2 Ves. Jun. 199. S. C. k Wood and Dowries, IS Ves. 4 Bio. C. C. 350 j and see 120. Wells and Middleton, Lewis and Morgan, 3 Anstr. 4 Bro. P. C. 26. 245. 709. 1 18 Ves. 127. ° Aubrey v. Popkin, 1 Dick. m lb. 128. and see 2 Sch. 403. and Left. 474. p Drapers Company v. Da- ■ Walmesley v. Booth, 2Atk. vis, 2 Atk. 295. TMIKVENTION 0* FliAUl). 97 yet if the Client can point out in the Bill gross errors, amounting to imposition and fraud q , he may be relieved. The llnle, it has been observed,, must not, for the sake of Clients, be earned too far, and so as to prevent professional Gentlemen undertaking long and expensive suits. Every ease, therefore, is considered upon its own cir- cumstances, and a temperate and just considera- tion applied to each case * ; and where nothing appears but a trifling- inaccuracy, the Court \. not set aside a Security given by the Client". 3. Sales by expectant Heirs, Are, with a view to prevent Fraud, considered in a different light from Sales by other persons. The Heir of a family dealing for an Expectancy in that Family, is distinguished from oidinary cases; and an unconscionable bargain made with him, is not only looked upon as oppressive in the particular instance, and therefore avoided, but as pernicious in prineip! ■-, and therefore repressed. In cases, therefore, of this description, and in cases of Marriage Drokage Bonds. Fraud is not the ground ol" Relief; it is the example and pernicious Consequences'. And in these cases of young Heirs, the Court relieves upon general Principles of mischief to the Public, without requiring par- ticular evidence of actual imposition upon them v ; Lord Nottingham seems, in one such case, to have * Cooker. Setree, 18 Yes. Cully, 2.UL. 35, BafrnardiAton 127. v. Liircood, 2 Atk. 135. cole r >b. v. Gibbons, :i 1'. \Vtos. -293. ' lb. p. 120. &c. v Walmesley v. Jiootli, ' G wynne v. Ikuton, 1 Uro. 2 Atk. 28,9. C. C. 10 : and see Brook v. VOL. I. II 9S EQUITY JURISDICTION. denied relief ; but Lord Jeff ereys, on a rehearing, reversed his decision w : and his decree being; considered as just, and as discouraging a growing practice, of " devouring an heir," to use Lord Cowper's expression, no attempt was made in Parliament to reverse it*. In another case, how- ever, Lord Nottingham seems to have agreed with the doctrine of Lord Jeff'ereys 1 . On these Principles, where a Son, who after his Father's death, was a remainder-man in Tail, sold his re- mainder, at an under rate, it was set aside z . An expectancy may be sold, provided it is fairly sold ; but the Court in favor of young Heirs says, the Vendee shall shew that the Bargain was a fair one a . Indeed, Lord Hardwicke has expressly said that, '• the taking undue advantage of an Heir's being in distressed and necessitous circumstances is the principal ground of these Decrees b ." Inadequacy of Consideration between Per- sons, who stand upon a precisely equal footing, is, in Courts of Equity, of no account, unless from its grossness it is of itself, (as will be seen more at large hereafter,) Evidence of Fraud ; but in regard to expectant Heirs, any thing that can substantially be considered as Inadequacy, is a ground for setting aside the contract c ; and in such w Berney v. Pitt, 2Vern. 34. v. Beake, 2 Vem. 121. where x Twisleton v. Griffith, IP. a Nephew, near forty years Wins. 311, 212. old, was the remainder-man. y Nott v. Hill, 1 Vein. 1G8. a See what is said in Coles and dismissed on a re-hearing by Trecothick, 9 Ves. 246. and in Lord North, hut Lord Not- Evans and Cheshire, MS. ting ham's decree affirmed on a b Barnardiston v. Lingood, rehearing by Lord Jeffereys, 2 Atk. 134. 2 Vera. 27. c Peacock v. Evans, 16 Ves. ' Twisleton v. Griffith, 1 P. 517 : and see Gowland and, Wms. 310; and see Wiseman De Faria, 17 Ves. 24. PREVENTION OI' FUAUD. 99 case the conveyance is set aside on payment of Principal, Interest, and Costs, the defendant being considered as a Mortgagee d . The tendency of these deterniinations to ren- der all Bargains with expectant Heirs very inse- cure, if not impracticable, seems not to have been considered as operating to prevent its adoption and establishment ; but, on the contrary, some Judges have avowed that probable consequence, as being to them, a recommendation of the Doctrine 6 . In most of these cases, deceit and illusion on third persons, not parties, nor privy to the frau- dulent Agreement, have concurred ; the Father, Ancestor, or Relation, from whom was the expec- tation of the Estate has been kept in the dark ; and the Heir or Expectant has been kept from disclos- ing his circumstances, and resorting to them for advice-which misrht have tended to his relief and Q reformation. This misleads the Ancestor, who has been seduced to leave his Estate, not to his Heir or Family, but to a set of artful persons who have divided the spoil beforehand f . It has also been determined that, if Tradesmen, on various occasions, impose upon an expectant Heir, by selling at extravagant prices, a Court of Equity will relieve ; but it might be otherwise, if there were only a single instance, of a purchase". d See Gowland andDe Faria, e See Bill v. Price, 1 Vern. 17 Ws. 2JJ. 407. Lami-ilugh v. Smith. v Per Master of the Rolls in 2 Vern. 77. Whittey v. Price. Peacock v. Evans, 16 Ves. 2 Vern. 78. Brooke v. Gallev, f»I4, 515. 2 Atk. 35. 1 Chesterfield and Jansen, 2 Ves. 157. h2 100 EQUITY jurisdiction. In some of the cases, a distinction has been taken, where the Heir has no maintenance from his Father, and is turned out. upon unrea- sonable displeasure taken by the Father; in which case, if the Bargain is not excessively beyond the proportion of insurances for such risques, such Bargain is allowed to stand, because it is not to supply the Luxury and Prodigality of the Heir, but to keep him from starving ; and since the Seller would have lost his money in case the Heir had died during the life of the Father, he ought to have a proportionable benefit for such hazard' 1 . The Court, in relieving an Heir against fraud, does not consider whether the Estate in expectancy comes to him as heir to his father, and by descent, or from any other relation ; but the rule which directs in such case, is the necessity that young heirs are in for the most part, which naturally lays them open to impositions of this kind. Where an extravagant price is charged for goods sold, and a mortgage is taken to secure it, the Heir may be relieved so far as it stands as a security for the unjust gain ; but after it is determined, upon a quantum meruit, what was the real worth of the goods, the mortgage will still be binding upon the Heir, for so much as is found by the verdict '. APostObit given by an Expectant Heir, has been held bad k ; but if afterwards, on the death of the h Sir Robert. Jason's case, Lex ' Freeman v. Bishop, 2 Atk. Pretoria, MS. Nott and Hill, 39. S. C. Barnard. 10. 2 Ch. Cas. 120. Barney and k Varnee's Case, 2 Freed* Blake, ib. 130. but see *1 B;o. 03. C.C. 10. PREVENTION OF FRAUD. 101 person upon whose decease the Post Obit is pay- able, the transaction is, without imposition, con- firmed, it cannot he set aside ; nor can relief be had, except as to the Penalty 1 : for anew Agree- ment may confirm what was at first a doubtful Bargain, though it could not a void one™', but if the confirmation is not freely given ; if the Party be poor, or distressed, or under the influence of the former transaction, it is not an effectual con- firmation n . If a Post Obit bo given, and the Obligor and Obligee of the Bond die, as well as the person <>n whose Life it was given, and the Bond has been assigned, it will not be set aside, no proof of imposition appearing . The same protective influence, to prevent Fraud, is exercised in the case of, 4. Guardian and Ward. Where a Man acts as Guardian, or Trustee in nature of a Guardian, for an Infant, a Court of Equity is extremely watchful to prevent such person taking any advantage immediately upon his Ward or Cestui que trust, coming of age, and at the time of settling his account, or delivering up f!ie Trust; because an undue advantage may be taken. It would give an opportunity, either by flattery, or by force, by good usage unfairly meant, or bad usage imposed, to take such advantage: 1 Chesterfield v. Janson, * Clowe v. Ballard, 1 Ye?. 2 Ves. S. C. 1 Atk. 301. jun. 215. S. C. :) Bio. C. C. "Seel Atk. a-34 ; an. 1 see 117. fcile v. Gibbon s, 3 P Wins. ° Hill v. CV.llord, 1 Yes. 294. 123. 102 EQUITY JURISDICTION. and therefore the Principle of the Court is of the same nature with relief in Courts of Equity on the head of public utility, as in Bonds ob- tained from young Heirs, and Rewards given to an Attorney pending a Cause, and Marriage Bro- kageBonds. All depend on public utility ,and there- fore the Court will not suffer it, though perhaps, in a particular instance, there may not be actual unfairness 1 '. The Rule is, in some cases, produc- tive of hardship ; as where there has been great Trouble, and the Guardian has acted fairly and honestly ; but Courts of Equity have esta- blished it from a persuasion of its utility, and on necessity, and on the principle that it is a debt of humanity that one Man owes to another, as every Man is liable to be in the same circum- stances q . If, however, the Ward or Cestui que trust, comes of age, and after actually being put into possession of his Estate, thinks fit, when sui juris and at Liberty, to make a reasonable grant, by way of reward for care and trouble, and does this with his eyes open, Courts of Equity will not set such Gift aside; but the Court will not permit a Gift, at the very time of account- ing- and delivering up the Estate, making that the terms of doing their duty r . Conveyances of this description have been set aside not only by the Ward himself, but his p Hylton v. Hylton, 2 Ves. in Appendix, p. 18.; and see Sen. p. 547. what is said in Wright and, '■lb. p. 540. Proud, 13 Ves. 138. and in r See lb. p. 540. Cray v. Wood and Downes, 18 Ves. Mansfield, 1 Ves. 370. Griffin 127. Smith v. Moone, MSS. and De Veuille, 3 Wood. Lect. PREVENTION OF PtlAUD. 103 Representatives", and after great length of time l . On these principles, where a Gift of Stock vrtt made by a Ward to his Guardian, immediately upon his coming of Age, and before his Guardian had delivered over every thing to his Ward, the Deed of Gift was decreed to be delivered up to be cancelled. The Guardian insisted that the Gift to him was as a Reward for his trouble as Guar- dian, but this Defence was not admitted u . So, where a Husband before his Marriage cove- nanted to release his Wife's Guardian of all ac- counts : this was held not to be binding, and was said to resemble a Marriage Brokage Agreement r . In like manner, a voluntary Grant of an An- nuity by a Ward, a year after he was of Age, to his Guardian, at the time when the Guardian pretended to come to an Account and deliver up the Estate to the Plaintiff, was set aside w . The Lord Keeper North said, that a Release obtained, as soon as ever the Heir came of Age, by the Guardian, should never by him be thought a trick, but that it was the proper time for such a Release; but Finch said, it had been held other- wise x . 5. Injunctions. Injunctions are in general granted to prevent Fraud, or Injustice, and may be classed under this head of Equity. ■ 2 Ves. 547. v. Lord Mohun, 1 P. Wins. 1 Hutch v. Hatch, 9 Ves. 118. 29-2. • Hylton v. Hylton, 2 Vcj. u Pierce v. Waring, cit. 547. 2 Ves. 547, 549. * Anon. Skin. 148. * Duke of Hamilton aud Ux. 104 EQUIT y JTJniPDTCTION. The Jurisdiction of the Court as to Injunctions, has been considered as a most useful one; with- out which, the benefit of an Equity, against pro- ceedings at Law, could not be had ; but as they may be made use of as handles to delay the obtaining justice at Law, it has been thought the duty of the Court to prevent, as much as possible, the abuse of that Jurisdiction y . All Injunctions are discretionary, and granted upon the circumstances of the Case z . Of late years, they have been allowed much more liberally than formerly a . An Injunction, however, can only be obtained against a Party to the suit; and in the ordinary case of an Injunction alter a Decree, in the ab- sence of a Creditor, no one appearing for him as Counsel, which might make a difference, it seems he could not be proceeded against for a breach of the Injunction b . An Injunction- is a prohibitory Writ, specially prayed for, by a Bill in which the Plaintiff's Title is set forth c , restraining a Person from commit- ting or doing an- Act, (other than criminal Acts d ,) which appears to be against Equity or Conscience e . Sometimes the Injunction pre- cedes, and sometimes it is subsequent to a Decree. It may be obtained at various stages of a suit, according to the Circumstances of the 7 Travers v. JLowl Stafford, b Iveson v. Harris, 7 Ves. 2 Ves. 20. 257,8. z Potter against Chapman, c Mitf. Pleading, p. 124. Ambl. 99. d See <> Mod. 16. 1 Hanson v. Gardener, 7 Ves. e 3 Bacon's Abr. C48. ;J07. PHEVXNTION OF FKACD. 103 If the Injunction be wanted to slay waste, on other Injuries of an tqiutlly urgent nature, upon the filing of the Bill, and an Affidavit, verifying 1 1 1 e * urgency and necessi ty oE the Case, the Court will 00 Motion made, In fore the service of the Subpama, and without Notice to the opposite Party % or if in the Vacation, or between the Seats, on a Petition and Affidavit, and Certificate of'the B>11 Bled, grant an Injunction immediately, to continue till the defendant has put in his answer, and the Court shall make some further Order concerning it. When the answer comes in, the Defendant may move to dissolve the Injunc- tion, and the Court will on such Motion order the injunction to stand dissolved at a short day fixed by the Court, unless cause is shewn to the contrary, and whether it shall then he dissolved or contbiued till the hearing of the cause is on such day determined by the Court, upon Argu- ments drawn lioin considering the Answer and Affidavit together, or if no cause is shewn, then, upon Motion, and an Affidavit of the due service of the Order, the order for dissolving the Injunc- tion will be made absolute ; but these are neu- ters of Practice, and will be more i\)\\\ considered, when we come to treat of the Practice of the Court. An Injunction is proper, and may be obtained, ' An Injunction against haps i* might he different waste wtU begranted, though where lie had appeared Ion" the defendant appeal 1 tre uay enough to have gfrahled the before the motion, Aller v. plaintiff to give notice. See Jones, 15 Yes. p. GU5. Pei- iL>. 1UO LQC^ITY JURISDICTION. in the following cases: — 1. To stay proceedings in other Courts, as in the Exchequer, the Spiritual Court, or Court of Admiralty, or to stay proceed' ings in a Court of Law , 2. To restrain the In- fringement of Patents ; 3. To stay waste; 4. To res/rain the Sale of Books, Printed Music, or Prints; 5. To restrain the Negotiation of Bills of Exchange, Notes, fyc. or the Transfer of Stock ; (i. To prevent the committing of Nuisances. These are the principal cases in which Injunctions are granted ; but there are other occasions, in which they are granted, not classable under those heads, but which will, however, be considered. And,, 1 . As to an Injunction to stay Proceedings in other Courts. Such Injunction may be obtained where there is a concurrent Jurisdiction, or where something is suggested which affects the equi- table right of the Party in the Proceedings in the other Court. Where two Courts have a concur- rent Jurisdiction of the same thing, that Court is entitled to retain the Suit in which it is com- menced, and may enjoin any other Court from proceeding in the Suit. It has, however, been decided % that if a Bill is brought in the Exchequer to foreclose, the De- fendant may file a Bill in the Court of Chancery to redeem, and that a plea" of the former Suit can- not be sustained. It may be true that such Plea is bad; but the Court of Exchequer, perhaps, might on application have given the Party relief by means of an Injunction. 1 Earl of Newburgh v. Wren, 1 Vern. 220 PREVENTION OF FRAUD. l(/7 So in those Cases in which the Court of Chan- cery and the Spiritual Courts have a concurrent Jurisdiction, the Court of Chancery will not (with some exceptions that will presently be mentioned,) hinder the Spiritual Court, being first possessed of the Suit, from proceeding in it b . If a Suit is instituted in the Spiritual Courtfor Ti/thes, and a Modus is set up as a defence, thr> Court of Chancery or of the Exchequer will grant an Injunction to stay proceedings in the Spiritual Court ; but if a Suit is there instituted for sub- traction of Tythes, and the Defendant brings a Bill to establish a Modus, and on the bare susr- gestion of a Modus, moves for an Injunction to stay the proceedings in the Ecclesiastical Court, it will not be granted. If, indeed, the Modus pleaded is admitted, the Ecclesiastical Court may then proceed upon the Modus ; but \( denied, that Court cannot proceed, propter iriationis defectum'-, but where a Bill was brought in the Ecclesiastical Court to establish Modusses, some of which the Defendant admitted, and denied the rest and greatest part, the Court of Exchequer granted an Injunc- tion*. The Court' of Chancery will, on a Bill filed, grant an Injunction to the Spiritual Court, to stay a Uusba?id , s proceedings in that Court to • Prec. Ch. 5 10. • Bunb. 170. c 1 Fowler, 311; seeBunb. d Kothtrain >. Faushaw. 176. 3 Atk. 027. 10S equity jun IsniCTlON". obtain a Legacy gVm to his Wife; because that Court cannot oblige the Husband to make an adequate Provision or Settlement on his Wife, as the Court of Chancery will oblige him to do, before it will permit him to receive the Lcgacy f . "Where a Suit is instituted in the Spiritual Court for an Infant's Legacy, by a Father, the Court will grant an Injunction, because it will not allow the Money of an Infant to come into the Father's hands. It does not grant the Injunction, because the Spiritual Court have not a Jurisdic- tion in Legacies, but from the general care it takes of Infants p . In all Cases of Legacies, where there is a Trust, or, as it has been said, any thing in the nature of a Trust, the] Court of Chancery will grant an In- junction, Trusts being proper only for the Cogni- zance of that Court h . An Injunction to stay proceedings in the Ad- miralty Court, in a Suit for the condemnation of a Ship, on the ground that a note had been ob- tained by duress from the Captain, acknowledging the Right of capture, has been refused, as the Court of Admiralty has sufficient Authority to investi- gate the circumstances '. An Injunction may likewise be obtained to stay proceedings in a Court of Law. Such Injunctions f Pr^c. Ch. 54S ; see also h Anon. 1 Atk. 491 ; see Meal v. Aleal, 1 Dick. 373. ulso 1 Dick. 98. Sionehouse v. Anon. 1 Atk. 491. Stonehouse, 2 Dick. 7b9. g Rotheram v. Fanshaw, 3 Smith and Keinpson. Atk. 029. ' Anon. 3 Atk. 350. PREVENTION OF FRAUD. 1") issue by the order arid under the Seal of the Court, noton Account of any Supremacy which the Cour assumes over a Court of Law, but in respect of its Jurisdiction ma Court of Equity, by which itcon- troulsthe Parti/, and not the Court, from proceeding at Law k . The Court of Chancery in these cases admits the Jurisdiction of the Court of Common Law; and the ground on which it issues the In- junction, is, that the Parties are making use of t lie Jurisdiction contrary to Eqlfity and Conscience 1 . Such Injunctions are sometimes used to stay Trial, or after a Verdict to sta}^ Judgment, or after a Judgment to stay Execution, or proceedings under an Execution" 1 ; or if Execution has taken place, to stay the Money in the hands of the Sheriff; or if part only of a Judgment Debt has been levied by a Fieri facias, it may issue to re- strain the suing out of a Capias ad satisfaciendum. And where such Injunctions are prayed by the Bill, there is commonly a suggestion in it, such as that the Complainant is not able, for some reasons therein stated, to make his defence in the other Court, though he hath a good discharge id Equity, or that the other party proceeds at Law for a penalty, and threatens to make the Complainant pay, or that the other Court has not jurisdiction of the cause, which is cognizable in the Court where he files his Bill, or that the other Court refuses k See what is said, 1 Ark. Phips, 10 Ves. 144. Code* 630. against Woden, \i Bro. C. C. 1 1 1 ill v.Turner, 1 A.tk.516. 7;J. " ^ec Lady Arundel and 110 EQUITY JURISDICTION. some rightful advantage, or does injustice to him in the proceedings, or has not power to do him right". In the Exchequer, an Injunction stays all Pro- ceedings in whatever stage they are ; but it is not so in Chancery; for there, if on a service of the Injunction the Defendant hath not commenced his Action he cannot sue out Process : if he hath, but not served the same, or in case he hath, but hath not delivered or filed any Declaration, he cannot proceed; but if there has been a declaration, he may call for a Plea, and for want of it sign a Judg- ment, or if the cause is at Issue, he may go on to Trial, and if that hath been had and a verdict ob- tained, he may proceed to Judgment and affirm, if Error hath been brought; but if Judgment hath been executed, and Debt and Costs levied thereon, the SherifTcannot pay the same to the Defendant, Execution being stayed, till Answer and further order . Where a Defendant is abroad, there must be special ground to shew that the discovery required from him is material, before an Injunction will be granted p ; nor will an Injunction be extended to slay Trial just at the time of the Assizes, unless the PlaintifTwill give Security for the Costs q . It is not necessary to state in detail, all those va- rious occasions in which a Court of Equity inter- nPrac. R ei r. Wyatt's Edit. p Revet against Braham, 2 p. 232. Bro. C. C. 640. Seel vol. Hind, p. 222. " Blacoe v. Wilkinson, 13 Ves.454. PREVENTION OF FKAUD. Ill teres by Injunction to restrain Proceedings at Law. It is a general Rule, illustrated by an abundance of cases, that wherever a Party by Fraud, Acci- dent, or otherwise, has an advantage in proceeding in a Court of ordinary Jurisdiction, which must necessarily make that Court an Instrument of Injustice, a Court of Equity, to prevent a manifest wrong, will interpose, by restraining the Party whose conscience is thus bound, from using the advantage he has improperly gained". In most of those cases of Accident, Mistake, or Account, which have been dilated upon, and in which equi- table relief is afforded, a party proceeding at Law would be restrained; and so he would in the gene- rality of those cases of Fraud which will hereafter be considered. In short, wherever a legal riffht would be relieved against in a Court of Equity, an Injunction will be granted to restrain pro- ceedings at Law, in respect of such legal right. If, for instance, aBond, Promissory Note, Policy of Insurance, or the like, has been unfairly pro- cured, Injunction may be obtained against pro- ceedings at Law. As where the Bond or Note, was contrary to the Policy of the Law, and void 5 ; as for bringing about a Marriage ', or where a Note was obtained for Money won at play v , or where, on a Policy of Insurance, the Life insmed was, at ' See Mitford's Pleadings, '3 Atk. 50(>. Aml>l.(>6. H6. » v.. Blackwood, :} » See Cork v. Richards, Anstr. 851. |0Ves, ■!"•' 112 EQUITY JURISDICTION. the time of the Insurance, in a state of Health very different from what, it was represented to be v ; and other multifarious cases of a similar description. So, likewise, the Court will enjoin Proceedings in Ejectment, where otherwise the execution of Trusts decreed by the Court, would be overturned; as where the Court had decreed a Partition and Conveyance of an Estate, so that an Ejectment brought tended to overturn the decree of the Court * So, a Bill will lie for a discovery, and an In- junction to stay proceedings, on the ground of a Verdict obtained by Collusion and Fraud*. If an Execution be issued on Account of a separate debt of one Partner against the Part- nership Effects, a Bill may be filed by the solvent Partners, to take an Account of what is due to such Partner, and for an Injunction in the mean time; for under such an Execution, the Creditor is only entitled to the Interest his Debtor has in the Partnership Property 2 , after the Accounts are wound up, as hath before been remarked. And upon the same principle if a separate commission be issued against one Partner, on an act of Bankruptcy, previous to the issuing of a Foreign Attachment by a Joint Creditor * See 3 vol. Woodeson's ' Taylor v. Field, 4 Ves. heci. p. 410. ;30G ; and see Dulton v. Mor- ' Baker v. Hart, 1 Ves. 29. rison, 17 Yes. 200 ; and see y Isaac v. Ilumpage, 1 Ves. Barker v. Goodair, 11 Yes. 85. jun. 427. S. C. li bro. C. C, 40:j. PltEVENTION OF FRAUD. 113 against the Joint Property, an Injunction may he obtained, till the Partnership affairs are wound up \ Put it has been holden, that the Chancellor has no Jurisdiction to stay, by Injunction, the Process of a Court of Law, upon an Award, made a Rule of Court under the stat. 9 and 10 Win. 3. c. 15 b . It would be different, it seems, if the Award were made in the course of a Cause c . 2. An Injunction may be obtained to restrain the Infringement of Patents. As, where Persons get a Patent and have been in possession of it, (a Sale of the invention is considered as possession,) an In- junction will be issued against a Person invading it, until the right is tried at Law; and this, although the Chancellor may be doubtful whether the Patent is good d . If he was clear the Patent was bad, it seems he would not enjoin*. Formerly, in the case of a Patent, on opening the case, the Party was sent to Law, to establish his right ; and then came back for an Account'. If a Patent for an invention is restrained to England, it will not extend to Ireland. There must be a distinct Patent under a distinct Great 1 Barker v. Goodair, 11 Yes. an Issue appears to have been 78. directed, hut no Injunction in D Gwinett v. Bannister, 11 the mean time; and see. Hi U Vcs. 530. v. University ot'Oxford, 1 Venn lb. p 532. 27;-). d Manner and Plane, 14 Yes. c See Grierson y. Eyre, 9 130; and see the Universities Ves. 341. ot' Oxford and Cambridge v. r Dpdsley against Kinnersley, Richardson, 6 Yes. 707. In Ambl. 400. Anon. 1 Vji:i, nam v. Gray, 2 Atk. 280. 120. VOL. I. I Ill EQUITY JURISDICTION. Seal for Ireland*. And the right in a Patent for one Country, is confined to that, and will not enable the Party to bring the Article for Sale into the other 11 . There must be separate Bills upon distinct invasions of a Patent \ 3. Injunctions to stay Waste, are very frequently applied for in Chancery ; and a mere threat to commit Waste is sufficient to ground an Injunc- tion upon; it not being necessary for a Plaintiff to wait till the Waste is actually committed 11 . Where the Title is doubtful ', or disputed, as between Devisee and Heir at Law m , or other- wise n , an Injunction will not be granted. But in general, it seems, it may be obtained to stay Waste, on the part of a Person or Persons, (even of a child in ventre sa mere °,) having the next im- mediate vested Estate of Inheritance in the subject matter of the waste. Trustees to preserve Con- tingent Remainders, may, before the Contingent Remainder-man comes in esse, obtain an Injunc- tion to stay Waste p . An Injunction may also be obtained by Persons entitled only to Contingent q , and executory Es- tates* of Inheritance, against Tenant by the Cur- * 6Ves. 718. ° Robinson v. Litton, 3 Atk. h lb. 211. 'Dillyv. Doig, 2 Ves.jun. p Garth v. Cotton, 3 Atk. -487. 754. S. C. 1 Ves. 524, 546. and k Gibson v. Smith, 2 Atk. also S. G. 1 Dick. 183. where 183. S. C. Barn. 491. Lord Hardwicke's argument is 1 Field v. Jackson, 2 Dick, given from his own notes. 59 1 - q Williams v. Duke of Bol-. - Smith v. Collyer, 6Ves.89. ton, 3 P. Wms. 268. in note 1 . ° Anonymous, 6 Ves. 51. * See Hay ward v. Stilling- I'UEVENTIOM OF FRAUD. llii test/, ill Dower , or as Guardian % or against him who has a legal Estate of Inheritance, but being a Trustee is not liable to an Action of Waste l , to inhibit them from committing Waste, on Houses, Lands, or Woods, by defacing or pulling down Buildings, digging Mines, or felling Timber*'. It may be obtained, also, by such persons, against a Tenant in Tail after possibility of Issue extinct u , or a Tenant for Life without impeach- ment of Waste, taking the produce of Mines unopened™, (unless they be new Pits or Shafts for the working an old vein of Coals *,) or com- mitting malicious and extravagant Waste y : the clause, " without impeachment of Waste," never fleet, 1 Atk. 425; and see Perrot v. Perrot, 3 Atk. 95. Robinson v. Litton, 3 Atk. 209, 11. Fearne on Executory Devises, p. 530. Edit. 4. s Clarke and Thorpe, 2 Ves. 233. '2 Ch. Ca. 32. 3 Wood. Lect. 399. T What is Timber must be determined by the Custom of the Country. By Custom, some Trees are considered as Timber, which in their nature, gene- rally speaking, are not so, as Ilorse-Chesnut and Lime Trees, Birch, Beech, and As|», and Walnut Trees. Duke Chando>» v.Talbot, 2 P. Wins. 000. Pol- lards, it seems, are considered as Timber, if the Bodies of them be sound and good ; ib. overruling what is said in Toby v. Molyos, Plowd. 470. The Right to Timber belongs to those who at the time of its being severed from the Free- hold, whether by the Act of God, as by Tempest, or by a Trespasser and by wrong, have the first Estate of Inheritance, whether in Fee or in Tail, and they may bring Trover for it ; but it has been holdcn that a Tenant in Tad expectant on the determination of an Estate for Life, without impeachment of Waste cannot maintain Trover for Timber cut down. See Whitfield v. Bewit, 2 P. Wins. 240. and S. C. 3 P. Wms. 2U8; and see Harg. and Hut. Co. Litt. 218 b . n. 2. Pyne v. Dor, 1 T. R. 55. u Abrahall v. Bub, 2Fretm. 53. 278. 2 Cha. Cu. 32. Wil- liams and Williams, 15 Ves. 419. w Tracev against Hereford, 2 Bio. C. C. 13S. Whitfield v. Bewit, 2 P. Wing. 242. x Clavering v. Clavering, 2 P. Wms. 388. S. C. Sel. Cas, 79. » 2 Freeman, 52. 2 Cha, Ca, 32. I 2 116 LQU1TY JURISDICTION. being extended to allow the very destruction of the Estate itself, but only to excuse from pe+- missive Waste y . By the Common Law, the clause, without im- peachment of Waste, only exempted a Tenant for Life from the penalty of the Statute, the recovery of treble value, and the place wasted ; but did not give the properly of the thing wasted. J41 Lewis Bowie's Case % it was first determined that these words also gave the property : the necessary consequence of which decision was, that in gene- ral, and unless under particular circumstances, he was not to be restrained in Equity a . But Courts of Equity have restrained his power greatly, in comparison of what it was formerly h . And in Lord Bernard's Case, (the strongest that could happen,) Lord Cowper re- strained the Tenant for Life from pulling down Ruby Castle ; but that was not an original Case, without precedent or judicial opinion to support it, as appears from a Case, 5 Jac. 1 d . Afterwards the Court proceeded still farther, and restrained such Tenant for Life, from cutting down Timber ei- ther for ornament or shelter of the House, and from cutting down Trees in lines, or avenues, or ridings in a Park, and likewise from cutting down Trees that were not of a proper growth to be cut % and y Prec. in Cha. 454. v. c Vane v. Lord Bernard, 2 Copley, MS. Vern. 788. S. C. Prec. Ch. 454. 1 11 Co. 79; but see 3 Atk. d Mentioned 1 Ves. 2(i5. 215. e Parkinson's Case, 3 Atk, » Alston v. Alston, 2 Ves. 215. 1 Ch. Cas. 166; but see 265, 266. what is said in Aston v. Aston ? b 3 Atk. 215. 1 Ves. 266. PREVENTION OF FRAUD. 1 17 even from cutting decayedT'nnber*; or cutting so much Timber as not to leave enough for Repairs *. But subject to the doctrine as to Equitable Waste, (a doctrine not to be extended*,) aTenant for Life unimpeachable for Waste, is at liberty to cut Tim- ber generally, treating it in a Husbandlike man- ner, independent of the effect upon the beauty of the Place ': there being no such Law in this Country as that made by a Kins; of France, (Philip le Belle) in the fourteenth Century* which made it penal to cut a Tree, qui a este garde pour sa beaute. It is not Waste to cut Timber, where necessary for the growth of the underwood in which it is situated k ; neither is it Waste to cut Timber merely ornamental, unless it was planted and growing for ornament, such as Vistas and Avenues \ This Principle, however, does not, it seems, ex- tend to a Wood covering thirty Acres' 11 ; but it extends to prevent the cutting down of Trees planted for the purpose of excluding objects from view n . If a Testator, or Author of the Deed creating a Tenancy for Life, has planted for ornament, though his taste be very disgusting, yet the taste of a Tes- tator, like his Will, is binding, and the Court will 1 Perrot v. Perrot, 'J Atk. 170. und Knight and Du'plessii, 95. As to whom decayed Tim- 2 Ves. Sen. b\j 1. ber belongs, see Whitfield v. ' Burgess and Lamb, lGVeS- Hewitt, 3 P. Wrns. 268. 183. « lVes: 2f>4. m lb. 1S5. h 16 Ves. 185. n Day tfnd Merry, IS \\i- ' lb. 185. 375. * Burgees v. Lamb, 16 Ves. IIS EQUITY JURISDICTION, not permit a Tenant for Life to destroy Plantations so intended for ornament. The Principle has been extended from ornaments of the House to Outhouses, and Grounds, and to Plantations, Vistas, Avenues, and to all the rides about the Estate, for ten miles round; but, it is not a sufficient ground for an Injunction that the Trees are orna- mental, not to the Estate upon which they grow, but to the surrounding Country. If the Court has any doubt whether Trees be really ornamental or not, it will direct an Issue, taking care at the same time that, if in the result of such a direction, the Defendant should be prejudiced by not being permitted to cut in the mean time, the Plaintiff shall undertake to pay the value, if the decision should be against him n . A Tenant for Life has been restrained from cutting down clumps of Fir, on a Common two Miles from the House, which had been planted for ornament. The terms of Injunctions in these cases, usually are, " that an Injunction be awarded to restrain the Defendant, his servants, workmen, and agents, from committing Waste, Spoil, or Destruction, in the mansion or other houses, upon the Estates in question, and from cutting down Timber, or other Trees growing upon the Estate, which are planted, or growing there for the protection or shelter of the several mansion houses, belonging to the Estates, or for the ornament of the said houses, I See Marquis of Downshire v. Lady Sanderson, 6 Ves. 110, PREVENTION OF FRAUD 119 or which grow in lines, walks, vistas, or other- wise for the ornament of the said houses, or oi the gardens, parks, or pleasure-grounds, thereunto belonging; and also to restrain the Defendant, his servants, &c. from cutting down any Timber or other Trees, except at seasonable times, and in u husbandlike manner, and likewise from cutting Saplings, and young Trees not fit to be cut, as mid for the purposes of Timber, except in the spring woods, and from cutting any thing in the spring woods but in a husbandlike manner, until hearing or farther order ." Such being the usual order in these cases, the Court will not alter the Terms, and insert the words, " contribute to ornament**' An Injunction may be obtained where there is Tenant for Life, subject to Waste, remainder for Life dispunishable for Waste, remainder in fee; for the Court will not suffer an agreement between the two Tenants for Life to commit Waste, to take place against a Remainder Man, before the time comes when the second Tenant's for Life power commences q . So, an Injunction is'obtain- able against a Joi ntress r , or a Mortgagor%or a Mort- gagee in Fee 1 , or for Years v ; but if a Mortgagor ° See Lord Tamworth v. r 1 Ves. 2G4. Ferrers, G Ves. 419. see also * 3 Atk. 723. and Usbome the Injunction in O'Brien v. v. Usbome, 1 Dick. 75. and the O'Brien, Ambl. 108. several cases there mentioned. * Williams v. Maenamara, ' Far rant against Lee, 8 Ves. 71. Ambl. 105. and see Robinso.i 11 Robinson v. Litton, 3 Atk. v. Litton, 3 Atk. 210. 210 ; and see Gartb v. Cotton, 3 Atk. 755. and the cases there mentioned by Lord Hardwicke. T 3 Atk. 723. 120 EQUITY JURISDICTION. cuts Wood and Underwood at seasonable times, and of proper growth, it will not be considered as Waste*. An Injunction lies also against a Lessee for Years, manifesting an intention of committing Waste *; but a Lessee threatening to remove Straw and Dung, contrary to his covenant, is not con- sidered as a case of Waste, but as a breach of con- tract y . A-Iiill for an Injunction will lie by aground Landlord or a Termor at ground Rent against his Lessee 51 , and against an wider Lessee?. An Injunc- tion is never granted against a Person having the. Inheritance unless he is only a Trustee, or in such like special Case c . Where an Infant, Tenant in Tail, not likely to live till of age, by his Guardian cut down a great quantity of Timber, an Injunc- tion was refused, on behalf of a Remainder-man, to restrain him d . An Injunction is obtainable, on a Bill filed by the Patron of a Living to restrain a Rector from cut- ting Timber in the Church-yard, till the hearing, except for repairing the Parsonage House, Out- houses, Chancels or Pews e . And such a Bill lies not only by the Patron of a living to stay Waste f ; w Hampton v. Hodges, 8 Ves. - v 3 A nstr. 749 ; but see ease 105. in note there. * 1 Roll's Ahr. 380. Bishop a Furrant against Lee, Ambl. of London v. Web, IP.Wms. 105. 527. and see Lord Com town v. b Farrant v. Lovell, 3 Atk. Ward, 1 Seh. and Lefroy, p, 8. 723. Ambl. 105. Where a Lessee covenants to c Prac. Regr. manage the Land, in a Hus- d Mr. Seville's Case, men- band like manner, ploughing tioned, For. 6. up pasture Land is considered e Strachy v. Francis, 2 Atk. as Waste, see 3 Anstr. 750 ; but 210. see Lord Grey de Wilton v. ' Knight against Moseley, Saxon, Ves. 116. Drury v. Ambl. 170, Molina, Ves. 320. PREVENTION Ci FRAUD. WL but where the Living is vacant, an Injunction lies against the Widow of the Rector committi:, g Waste *. A Rector may cut Timber, and he is also entitled to Botes, for repairing Barns and Outhouses, belonging to the Parsonage ; but he may not cut down Timber, for any common pur- pose. If, however, it is the Custom of the Coun- try, he may cut down underwood for any purpose ; but if he grubs it up it is Waste. An Injunction may be obtained, at the instance of the Attorney General, against a Bishop to restrain the felling of great quantities of Timber h . Formerly, in a case of Trespass, unless it grew to a nuisance, an Injunction would have been re- fused'; but latterly an Injunction to stay Waste has been granted, in cases of Trespass, ("unless, perhaps, where the title is disputed k ;) as where a person having got possession under articles to purchase, cuts Timber '. It seems questionable whether the Lord of a 1 Hoskins against Feather- 15 Ves. p. 138; and see als© stone, 2 Bro. C.C, 552. Mitchell v. Dors, 6 Ves. 147. h Knight against Moseley, Hanson v. Gardiner, 7 Ves. Ambl. 176. 308. Courthopeand Mapples- 1 See Hanson v. Gardiner, den, 10 Ves. 290. but in some 7 Ves. 307. Mogg v. Mogg, of these cases the Chancellor 2 Dick. 670. seemed not very clear, whe- k In Kinder v. Jones, 17 ther an Injunction should be Ves. 110, a donbt was made granted in a case of mere Tres- by the Chancellor, but the pass; but see Twort v. Twort, Injunction in that case was 16 Ves. 130. and Smith and grunted afterwards by the Collyer, 18 Ves. 90. Earl Cow- Mastef of the Rolls, the dc- per v. Baker, 17 Ves. 128. and fendants, though served with Thomas v. Oakley, 18 Vis. Xiotice, not appearing. 184. I Crockford v. Alexander, 1-2-2 EQUITY JURISDICTION. Manor has a right to open Mines on the Copy- hold Land ra . It has been held that the Lord of a Manor is confined to his legal remedy for Waste committed by a Copyholder, and has no Equity for an Injunction". A case has been noticed, where aTenant/or Life may obtain an Injunction against Waste. So where A. is tenant for years, remainder to B. for Life, Re- mainder to C. in fee, and^. is doing Waste ; B, though he cannot, not having the Inheritance, bring an Action for Waste, is entitled to an In- junction . But if the Waste be of a trivial na- ture, and a fortiori, if it be what is termed melio- rating Waste, as by building on the Premises p , the Court will not enjoin ; nor will it, in any case, unless the Reversioner or Remainder-man in fee, be made a Party ; for they, possibly, may approve of the Waste q . So, an Injunction between Tenants in Com- mon against malicious Destruction may be ob- tained, but not against what is called equitable Waste 1 ; unless the Tenant in committing theWaste is insolvent 8 ; but a Tenant in Common may obtain an Injunction inhibiting Waste, against another Tenant in Common, who is occupying Tenant to m Grey v. Duke of Northum- Wins. 268, note F. 1 Roll Abr. berlarid, 8 Yes. 236. S. C. Rosewell's case, 377. 17 Ves. 281. p 1 I" st - 53 - n Dench v. Bampton, 4Ves. < 3 P. Wms. 268. n. F. 700. but that case, it seems,was r Hole v. Thomas, 7 Ves. over-ruled in Richards and 589. Noble, March 9th, 1807. MSS. s Smallman v. Onions and Mollineux v. Powell, 3 P. others, 3 Bro. 621. PREVENTION OF FRAUD, 123 the Plaintiff"; but except under such circum- stances, an Injunction, it seems, cannot be ob- tained between Tenants in Common 1 . The Court, as hath been observed, interferes by way of Injunction in case of Waste, with a view to the prevention of the Wrong; and where a Bill is filed for an Injunction to stay Waste, and Waste has been already committed, the Court, to prevent multiplicity of Suits, will not oblige the Party to bring an Action at Law, but will decree an account and satisfaction for what is passed u : but after the determination of a Tenant's Estate, he having assigned, a Bill will not lie for an account of Timber cut down v , no Injunction being prayed or necessary, — no injury to be prevented. If, indeed, a person commits Waste, and continues in Possession, there an Injunction to stay Waste is proper*, from the probability that he will again commit Waste. 4. The Sale of Books, Printed Music, or Prints, will be restrained by Injunction, if a properground be laid for such Proceeding. If, however, a Publication be of such a nature that the Author can maintain no Action at Law, a Court of Equity will not grant an Injunction even upon the submission in the answer : " the ' Twort v. Twort, 16 Ves. u Jesus College v. Bloom, 132. S. C. MS. 3 Atk. 202,3. S. C. Amhl. -A ' Goodwvn v. Sprav,2Dick. Mb. 264; and iee SWitl 667. v.Cooke, 3 Atk. 961. - •: \tk. 381. 124 EQUITY JURISDICTION, Court, for instance, will not," says Lord Eldon, " give an account of the icnhalloiscd profits of libel- lous Publications x ." If the right to the Copyright depends upon the effect of cm Agreement, the Court will not grant an Injunction against an invasion of the Copy- right, until a recovery in an Action y . The Principle on which the Court grants In- junctions to restrain the Sale of Books, is, that damages do not give adequate relief, and that the Sale of Copies by the Defendant, is, in each in- stance, not only taking a vy ay the Profit upon the individual book,which the Plaintiff probably would have sold, but may injure him, to an incalculable extent, which no Inquiry for the purpose of da-' mages can ascertain z . But wherever a fair doubt appears as to the Plaintiff's legal right, the Court always directs it to be tried, and only permits the Sale, on the Parties undertaking to account according to the result of the Action a . Where a Person was exclusively appointed by the House of Lords to print a Trial before that House, and another printed and sold the Trial, an Injunction to restrain the Sale, until answer, was granted b . The. Proprietor of a copyright must file separate * Walcott v.Walker, 7 Ves. * See Wilkins v. Aikin, p. 1. 17 Ves. 422. y lb. b Gurney v. Longman, 13 T Hogg v. Kirby, 8 Ves. Ves. 493. S. C. MS. 225 ; and see Wilkins v. Aikin, 17 Ves. 424. PREVENTION' OF FRA.UD. l^'i Bills against each Bookseller taking copies of a spurious Edition for Sale. If a Defendant trans- fers his Books to another, that person, it seems, may be made a Party c . Most of the Cases, where an Injunction has been sought to restrain the Sale of Books, have been where, under color of a new work, the old work has been republished, and copies multiplied ; but an Injunction has, on the same principle, been applied to restrain the Sale of a Work, which, though not the same, has been represented as the same d . A Collection of Letters, as well as other Books, is within the intention of the Sth of Queen Anne, the Act for the Encouragement of Learning 6 ; and an Injunction has been granted to restrain the Executor of the Person to whom private Letters were written, from publishing them without the leave of the Executors of the Person who wrote them f . It has been granted, also, to restrain the publi- cation of Law Precedents and Reports, surrepti- tiously procured 5 . So, the publication of a Play taken in short hand horn the mouth of the Performers, has been restrained h . * Dilly v. Doicc, 2 Ve?. jun. v. Dunkin, 1 Ball ana Beatty, 486. 207. d 8 Ves. 215. 8 See Cases of Mr. Webb and ' Pope v. Curl, 2 Atk. 341. Mr. Forrester, mentioned, 1 Thompson v. Stanhope, Ambl. (>1>4. A mil. 737. Earl of (Jrunuid h Macklin against Richaidi so-.i, Ambl. 694. ]26 EQUITY JURISDICTION, It is competent to any person to make a Map, a Road Book, a Selection from Authors, a Court Calendar, &c. such subjects being open to all the World; and in these cases, different persons might publish their collections, though the articles might happen to be the same ; but a person will not be permitted to copy the original Work of another '. Nor is it allowable, under the pretence of Quotation, to publish either the whole or part of another's Work, though he may use, what it is in all cases very difficult to define, fair Quo- tation k # The invasion of another's Work is generally made evident to the Court by the similarity of the Inaccuracies ', which could only proceed from unguarded plagiarism. An Abstract m , ox fair Abridgment of a Work, is allowable" ; but a colorable Abridgment is not°. In regard to Engravings, it has been determin- ed, that, the Act (8 Geo. II. Ch. 13.) is not mere- ly confined to works of Invention, but means the designing or engraving any thing that is already in nature p . It has been holden, also, that it is no answer to an application for an Injunc- tion that the Prints are in any other work, unless ' See Longman v. Winches- ley, Arabl. 403 ; and see ter, 16 Ves. 269 ; and see Mackliu again»t Richardson, Matthews v. Stockdale, 12 Ambl. 696. Ves. 270 : and Wilkins v. n Gyles v. Wilcox, 2 Atk. Aikin, 17 Ves. 425. 143. S. C. Barn. 366. Bell k Wilkins v. Aikin, 17 Ves. against Walker, 1 Bro. C. C. 424. 451. 1 Carnan against Bowles, ° Butterworth v. Rcjbinson, 2 Bro. C. C. 84 ; but see Cary 5 Ves. 709. 2 Atk. 143. t. Faden, 5 Ves. 24. p Blackwell v. Harper, 2Atk. * Dodsley against Kinners- 92. S. C. Barn, 210. PREVENTION OF FRAUD. 127 the* are represented in the same maimer and form' 1 . 5. If Negotiable Securities, Notes, or Bills, an affected, by Fraud, and are, before they are due indorsed in a mercantile manner*, the Indorsee, for the sake of commerce, will not be affected by the Fraud, and therefore the negotiation of them may be restrained, by Injunction, immediately on the filing of the Bill, supported by an affidavit of the truth of the fraudulent circumstances stated in the Bill, lest the defendant should upon inti- mation of the suit, by negotiating the Security, defeat its object . A Bond or Covenant fraudu- lently obtained, though assigned to a third person for a valuable consideration, without notice, re- mains, nevertheless, impeachable for Fraud ; for he has no remedy at Law, or right to sue in his own name, and has only an equitable remedy, which fails when the Bond is obtained by Fraud": so that an Injunction to restrain an Assignment, is, in general, unnecessary. A Transfer of Stock has in many instances been restrained ; as where there are opposite claims under different Wills' 1 , and in other cases where Bills Quia timet, are filed, of which mention will presently be made. In one case, an Injunction was obtained to restrain a transfer of Stock stand- ing in the name of a Steward, on strong evidence, by affidavit, that it was the produce of his master's q 2 Atk. 95. c Lex Praetoria, MS, 1 Lex Proetoria, MS. * 6 Ves. 172. b See 1 Fonbl. Eq. 43 in note. 128 EQUITY JURISDICTION. Property; but an Injunction was refused, as to Money of the Steward in the Banker's hands e . 6. Injunctions to stay Nuisances, will, under circumstances be granted, but they will be ex- tended only to such as are Nuiscuices at Law : the fears of mankind, though they may be reasonable ones, will not create a nuisance. Nuisances are private or public: a Private Nuisance is that which affects only particular persons, as in stopping up ancient lights, &c. ; a Public Nuisance is such as affects many persons, though, at the same time, it may likewise be of a private nature too, as in the case of a hole in the King's Highway, &c. In the case of Public Nuisances.an Information should be filed in the name of the Attorney Gene- ral f ; and it is for his consideration, whether he will file it or not s . A Nuisance respecting lights is not such merely because the Plaintiff's lights are altered ; for then no vacant piece of ground could be built upon in* London, but the Law says it must be so near as to be a nuisance. Seventeen feet dis- tance, for instance, will not constitute, such nui- sance. The loss of a Prospect is not considered as a nuisance ''. An Injunction will not, on motion, be granted e Lord Chedworth v. Ed- ' Anon. 753. S. C. Fee Barnes wards, 8 Ves. p. 4C; but in a v. Baker, Arobl. 158. subsequent case, MS. Lord g lb. 150. Eldon said he had consulted h Fishmongers Company w ith I ord Ellenborough, and against East India House, thought he hud gone too far. 1 Dick. lt>5. PREVENTION OF FRAUD. 129 to pull down blinds obstructing the Plaintiff's lights, no order ever being made, on motion, to pull down any thing, though it. is sometimes, and but rarely, done on a decree ; but the Chancellor will, by consent, put the matter in a way of Trial at Law, and order the Scaffolding to be pulled down, and enjoin the party from building or erect- ing, whereby any of the Plaintiff's Lights may be obstructed, till after Trial had 1 . 7. Miscellaneous Cases in which an Injunction has been granted. Where the Defendant had a piece of Water supplied by the same Stream from which a Mill of the Plaintiff's was supplied, and the Defendant sometimes kept back the Water, and at other times let it in, in such quantities that the Mill was overflowed ; on a Bill filed for the purpose, an Injunction was granted to restrain the Defendant from preventing it flowing in regular quantities k . It seems, that the Court cannot decree or order repairs to be done, though (a nice distinction,) an order may be made in terms that will have that effect. Thus an order to repair the Banks of a Canal, and stop Gates and other Works, was refused; but the effect of such an order was ob- tained, by an order to restrain the Defendant from farther impeding the Plaintiff in the Navigation, ' Ryder v. Bentham, 1 Ves. k 1 Qb, Ca. 574. See also 543. S. C. 1 Dick. 277. where Robinson r. Lord Byron, 1 Bro, the order is more particularly C. C. 5&8, stated,and see Morris v. Lessees of Lord Berkley, 2 Ves. 4&2. VOL. I. K. 130 EQUITY JURISDICTION. " by continuing to keep the said Canals, or the Banks, Gates, Locks, or works of the same re- spectively out of good repair '." A Tenant for Life, however, has been compelled to repair m . The Court will grant an Injunction where there has been a forcible Entry by Commissioners of the Turnpike, for the purpose of digging Gravel on Land leased to the Plaintiff for twenty-one years and turned into a Garden n . And so, too, it seems, according to the reasoning of Lord Hard- wickc, an Injunction lies in the case of private persons entering by force into ground, of which another has had possession for twenty- one years, though in such case there is a Remedy at Law ; "but that'' (says his Lordship,) " would be only for a particular wrong done, and not equal to the Remedy in Chancery V* An Injunction will be granted to protect the enjoyment of a specific Chattel not properly the subject of Compensation in damages 1 '. It will be granted, also, to prevent the destruction of personal Property, not properly the subject of Compensation, until the rights respecting it are 1 Lanev. Newdigate, 10 Ves. kind, " but while the right is 194. unheard and undetermined, m Prae. Chan. p. 200. In the Court have as constantly Birch v. Holt, 3 Atk. 725. a denied the motion." motion was made in the nature " Hughes v. Trustees of of an Injunction, or rather for Morden College, 1 Ves. 188. leave to put a Mill-dam into ° Hughes v. Trustees of the same situation it was in Morden College, 1 Ves. S«n. before it was cut down: Lord 189. Hardwicke said he had known p Lady Arundel! v. Phipps, numbers of applications of the 10 Ves. 139. PREVENTION OF FRAUD- 131 ascertained, upon the principle of preventing irre- parable mischief r| . There are various other occasions where an Injunction will be granted, but which are difficult to state, otherwise than in detached Propositions. If a Decree is made; in execution of a Trust, and a Defendant thereto attempts to controvert that at LaWj the Court will grant an'Injunction*. So, if a Bankrupt bring an action against his Assignees, the Court will grant an Injunction until the hearing *. An Injunction may be maintained, in many cases, to prevent an Executor from getting assets of a Testator into his Hands, upon particular cir- cumstances '. A Wife, for instance, an Executrix, has been restrained from getting in the assets of the Tes- tator, her Husband being in the West Indies, and not amenable to the process of the Court". But the Court will not interfere by Injunction, merely because the Executor is not in affluent circumstances, if the Testator himself has placed this confidence in him, without regarding his cir- cumstances v . On a Bill by Creditors against the Executor, Heir, and Purchaser, of a Real Estate charged for payment of debts, an Injunction may be obtained q Nubbrowne v. Thornton, ' Taylor v. Allen, 2 Atk. lOVes. 1G3. 213. ' Flower v. Herbert, 2 Ves. • lb. 32". T Hathornwaite v. Russell, s lb. 320. etc. 2 Atk. 12G. S. C, Bam. 334. K 2 132 £QU1TY JURISDICTION. to restrain the payment of the purchase Money to the Heir w . In the Case of Agreements on Sales, and De- posits made, if the Agreement is not performed by the time stipulated, the Purchaser may bring an Action for his Deposit; but a Bill may be filed against him pn^ing a specific Performance, and an Injunction in the mean time. An Injunction, also, may be obtained on Certificate of the Bill filed and Affidavit, against a surviving Partner, to restrain him from disposing of the joint Stock, and receiving the outstanding debts, he being embar- rassed and in prison, and misapplying the Pro- perty x . If a Lord of a Manor has approved under the Statute, and left sufficient Common of Pasture, and the Inclosures are thrown down by the Te- nants, an Injunction may be obtained, and at the hearing, an Issue will be directed, as to the rights- of the Parties y . An Injunction lies to restrain the injuring of # Fish-ponds z „ An Injunction against the Use of a Market will not be granted, at least, until a Title at Law is established \ If an Ejectment be brought against a Tenant ', who makes default at the Trial, and employs the interval in doing all the mischief in his Power, "* Green against Lowes, 300. Arthington v. Fawkes, 3 Bro. C. C. 218. 2 Vern. 350. Hanson v. Gar- ■ Harty v. Schrader, 8 Ves. diner, 7 Ves. 309. 318 ; and see on this subject ■ Earl Bathurst against Buf« Read v. Bowers, 4 Bro. C. C. den, 2 Bro. C. C. 64. 441. 'Anon, 2 Ves. 414. > Weeks v. Staker, 2 Vern, PREVENTION OF FRAUD. 133 an Injunction will be granted 1 '; but unless an Ejectment be brought, an Injunction will not lie against a Tenant so misbehaving himself*. Courts of Equity interfere, in many cases, to restrain a Breach of Covenant*: as where a Tenant is carrying off a Farm, Manure, &c. he had cove- nanted to consume upon it ; but where a cove- nant is of such a description, that a breacfi of it can only be ascertained, in each instance, by a Trial, the Court will not interfere'. An Injunc- tion has been granted to restrain a Tenant of a Farm, i'rom breaking up Meadow for the purpose of building, contrary to express Covenants On the same Principles, an Injunction has been granted to restrain a Tenant from year to year under notice to quit, as in the case of a Lessee for a longer term, from doing damage, and from removing the Crops, Manure, &c. except according to the custom of the Country g . The Court with reluctance grants an Injunc- tion to stay the working a Colliery, unless there is a breach of an express Covenant, or an uncon- troverted mischief 1 '. Where there is an Agreement for a Lease of a Farm, and the intended Lessee is in possession, and uses it, " in a grossly unhufbandlike man- ner," and there would be a right of re-entry in 6 Sir Wai. Pulteney v. • See Collins and Plumb, Shelton, 5 Ves. 2(j0. in note. 1G Ves. 45-i. c Lathrop v. Marsh, 5 Ves. f Lord G/ey an order to restrain the Plaintiffs from proceeding at the Sessions, till the hearing of the Cause and further order 1 ." Such a Bill may be brought as well by Tenants against a Lord, as by a Lord against Tenants 1 "; as, '2Vol. Atk. Reports, p. 302. m Conyers v. Lord Aber- Mayor, &e. f York v. ¥\\~ gavenny, 1 vol. Atk. 2S5. kington« 13S EQUITY JURISDICTION. for instance, to settle a general fine, to be paid by all the Copyhold Tenants of a Manor". Such a Bill has been entertained at the instance of t/icNeiv River Company t to quiet them inthepos- sessionofPipeslaid through theDefendant'sField' 1 : and respecting- Suit to a Mill >': or, where several Tenants claim a right to the Projits of a Fair q . So, on a Bill shewing that one Commoner had recover- ed one shilling, or other small damages Egainst the Plaintiff for oppressing the Common, or for using the Common where he ought not, and praying that the Defendant, another Commoner,might accept of like damages for what was past, to prevent charges at Law, the Lor el Keeper Guildford said, it was in the nature of a Bill of Peace, and was proper r . There are Cases where Bills of Peace have been brought, though there has been a general right claimed by the Plaintiff, and yet no privity between the Plaintiffs and Defendants, nor any general right on the part of the Defendants, and where many more might be concerned than those brought before the Court. Such are Bills for Duties ; as, in the Case of the City of London v. Perkins in the House of Lords, where the City of London brought onjy a few persons before the Court, who dealt in those things whereof the duty was claimed, to establish a right to it ; but because a great number of Actions may be brought, the Court 1 Cow per v. Clerk, 3 P. q Meureit v. Eastwicke, 1 Wins. 150. see Bunb. 41. Verh. 200. 1vol. Eq. Cas. • 2 Vern. 431. New River Abr. p. 79. pi. 2. Comp. v. Craves. r Pawlet v. In grey, 1 Vern. p Sir Lionel Pilkington's 308, 1 vol, Eq. Cas. Abr. p. Case in the Duchy Court, 71). pi. 2. cited, 1 Bro. 40. PKEVENTIO.V OF FBAUD. 130 suffer such Bills, though the Defendants might make distinct defences, and though there was no privity between them and the City*. It has been determined, however, that a Bill of Peace will not lie between two Parishes to have an Issue to ascertain the boundaries of each*. t; It would be," said Lord Thurlow, t; to try the Boun- daries of all the Parishes in the Kingdom on Ac- count of the Poor Laws." He apprehended these Issues had usually been directed by consent of the Parties l . It seems, too, that the Court on a Bill of this nature will not decree a perpetual Injunc- tion for the enjoyment of, nor establish, the right of a Party who claims in contradiction to a public right, as a right to a Highway, or a common Navigable River; for that would be to enjoin all the People of England". Where, therefore, a Bill was brought to be quieted in the possession of an Ancient Ferry, used with a Rope over the River Ware, against twenty Defendants who had cut the Rope, with a view, as it was insisted, to avoid multiplicity of Actions, the Chancellor observed, " Plaintiff may have trespass for cutting the Rope: a Ferry is in nature of an Highway; and a Bill does not lie to be quieted in the possession of an Highway. A Bill lies to be quieted in the pos- session of a Common; but that is of a different nature: this is a Navigable River, and the Rope ' Harrison's CIi. 1 vol. p. Leonard, Shoieditch, 1 Bio. 127. 40. s Parish of St. Luke, Old ' Id. ibid. Street, u-uiust the Parish of St. * Miti'ord's Heading?, 120. 140 EQUITY JURISDICTION. to the Ferry is an obstruction of the Navigation : if Plaintiff has any such right there is proper remedy for him at Law w ." Nor can a Bill of this description be maintain- ed, where a right is disputed between two persons c?i/t/ x . As where a Bill was brought by one Tenant of a Manor, suggesting a custom for the Tenants of the Manor of A. (of which he was one) to cut Turves in the Manor of B. to quiet him, and to have an Issue directed as to the right ; upon this occasion, the Court said, " This Bill is improper, and inconsistent with the nature and end of a Bill of Peace, which is, that where several persons hav- ing the. same right are disturbed, as application to the Court to prevent expence and multiplicity of Suits, issues will be directed, and one or two de- terminations will establish the right of all parties concerned, on the foot of one common Interest, and the Bill is preferred by all the parties inte- rested, or a determinate number in the name of * Harrison's Ch. 1 vol. p. 125. on the subject had been looked * Lord Tenham v, Herbert, into, and it was found that in 2 Atk. 483. and "Whitchurch v. no instance, except that of Hide, 391. see also 4 I5ro. Bush and Western, Prec. Ch. P. C. 157. Vin. fit. Ch. 425. 530. had this Court ever inter- pl. 35; see also Cow per and fered in a mere question of Clerke, 3 P. Wrns. 150. " Ac- right between A. and B. they cording to this distinction," having an immediate oppor- says Lord Chancellor King, tunity of trying the right at " are the Cases, 1 Ch. Rep. 33. Law which would be defini- and 96;" see also Fortescue, tive." The same Case is shortly p. 42. and 44. and the Case of noticed in 2 I)ick. Rep. 442 ; Webb and Conyers, cited, 1 and see S. C. cited, 2 vol. Bro. 40. Wei by and the Duke Schoales and L. p". 209 ; see on of RutlandjGBro. P. C. 575. in this subject, Finch v. Res- whichCase,asLordThnrlowob- bridge, 2 Yern. 390. and the serves in Weller and Smeaton, note. 1 Bro. 573. '* most of the Cases PREVENTION OF FRAUD. HI themselves and the rest ; but in this case one only brings the Bill on the general right, and not on the foot of any particular distinct right, and therefore the Bill was dismissed with costs y . A Bill of this kind should not merely pray Spe- cial RgJief, as that the Plaintiff may be quieten 1 in the possession till the right is tried at Law ; but should also pray relief in the Premises, or a per- petual Injunction : and in a case where it was defi- cient in that respect, the Bill when it came to an hearing was directed to be amended in that par- ticular z . After Jive Trials in Ejectment, and Verdicts in all of them, for the Earl of Bath, he brought a Bill of this kind for a perpetual Injunction, and though Lord Cowper refused to grant it, yet the House of Lords on appeal granted the Injunction \ After even two satisfactory Trials of an Issue Devi- savit vel non, the Court, it seems, will interpose to prevent any farther Trial b , especially if they were Trials at Bar c . If a Trust Estate be devised to be sold, and a Bill is brought against the Trustees to oblige them to sell, and the Heir contests the Will, after two 7 Harrison's Ch. vol. 1. p. Leighton and Leighton, 1 P. 124. Wms. 072. 1 Ewelme Hospital v. Ando- b Bates v. Graves, 2 Ves. ver, 1 Vera. 266. Jun. 293. E Lord Bath v. Sherwtn, c See 1 P. Wms. 671. S. C. Prec. Ch.201. and S. C. as it 1 Str. 404. and 2 Bro. P. C. seems,in Lucas's Rep. p. Land 217. Coker v. Farewell, 2 P. 1 Bro. P. C. 266. on the ap- Wms. 563. peal. See also S, C. noticed in 142 EQUITY JUSISDICi'ION. Trials the Court will grant a perpetual Injunc- tion c . It appears that the Lord Keeper Guildford was of opinio) that if the matter before him had been res Integra, he should not have made altogether such a decree as Lord Clarendon had, whereby the Inheritance was bound after one Trial f . If the Court cannot fix upon an Issue that will comprehend all the subject in dispute, it will not, it seems, interfere on a Bill of this kind, but leave the Party to his remedy at Common Law s . 7. Bills of Interpleader. A Bill of Interpleader, (similar in some measure to the doctrine of Interpleading at Law, in cases of Bailment*,) is resorted to, where a person claim- ing no right in the subject, and not knowing to whom he ought of right to render a Debt or Duty, apprehends injury from claims made, (a mere claim is a ground of Interpleader,) by two or more claiming in different or separate Interests, the same Debt or the sameDuty'. The Bill states the situation of the Plaintiff, the conflicting claims upon him, and prays that such claimants may interplead, so that the Court may adjudge to whom the Debt or Duty belongs, and that the ' J.eighton v. Sir Edward h Langston v. Boylston, 2 Leighton, 1 P. Wms. 671. Ves. 109. 1 Fitton v. Macclesfield, 1 l Dungey v. Angove, 2 Ves. Vem. 292. Juu. 310. 8 Lowther v. Ray et al, Trin. 8 Geo. II, 1733, MS, PREVENTION OF FRAUD. 1 13 Plaintiff may be thereby indemnified. The Plain- tiff .should also by his Bill, offer to brin^ the Money (if any be due) or Property claimed into Court ; and if such offer is not made by the Bill, the Court, upon the application of either of the Defendants, will order the Plaintiff to bring such Property, or pay the Money into Court, or into the Bank, in the name of the Accountant General, in trust in the canst.', for the benefit of the party to whom the Court at the hearing of the Cause should decree the same to belong 14 . If the De- fendants have commenced Actions at Law, (unless they are Ejectments ',) or Suits in Equity, an Injunction must be prayed in the usual form m , to restrain the claimants from proceeding till the right is determined. And in support of the motion for an Injunction, an Affidavit of the facts may be read ". But, it seems, the PlaintifTnever can proceed compulsorily, by Injunction, till he has brought the Money into Court , though there are some cases that point to a contrary doctrine p . In the Exchequer, when the Plaintiff produces a certificate of the Deputy Register that the Money k In Thanet v. Patterson, m 2 Ves. Jun. 101. I.angstau laniard, 247. the Bill was v. Boylston,3 Bro. 36. Dungey held not to be an Interplead- against Angove. ing Bill, because it did not n 2 Ves. jun. 101. Langston contain ah offer to bring the v. Boylston,3Bro. 30. Dungey Money into Court; see 2 Ves. against Angove and others. Jun. 109. Langston v. Boyls- ° Prac. Reg. last edition, 78. ton. In strictness perhaps it >' See the Cases cited in Mr. is ground of Demurrer, Mit. Hollist's Arg. 3 Bro. 30. Dun- Tr.p.vl2CL gey v. Angove and other*. ' 2 Anstr. 531. in note, and 3 Anstr. 7U8. I 144 EQUITY JURISDICTION. is paid into Court, it is a Motion of course to grant the Injunction 8 . Such a Bill for a sum under ^10. has in the Exchequer, been dismissed as being beneath the dignity of the Court 1 . There must be annexed to the Bill, or upon the filing of it, there must be made v , an Affidavit by the Plaintiff, that he doth not exhibit his Bill by Fraud or Collusion with the claimants, but spontaneously for his own security ; but he need not swear that the Bill is filed at his own expence*.. If no such Affidavit is made, the neglect, in strict- ness, affords ground for a Demurrer y . The more usual way is to annex the Affidavit to the Bill. If the Affidavit is false, the Party is liable to a Prosecution ; but the Court will not determine it to be false upon a Counter Affidavit 2 ; but if there be a suspicion of collusion, the Court will direct an inquiry into the circumstances : and in a case in which a Report confirmed the fraud, the Bill was dismissed with Costs to the Landlord, as between Attorney and Client, to be paid by the Plaintiff and his Solicitor, and the latter was ordered to shew cause why he should not be struck off the Roll a . It must appear by the Bill that there is some 9 1 Fowler's Prac. 29C. x 1 Ves. Jan. 248. Metcalf 1 2 Anst. 530. v. Harvev. v To such a Bill against the * JHit. TV. 126. Attorney General and others, * 2 Yes. Jun. 310. Dungey there must be an affidavit an- v. Angove. nexed, Bunb. 303, * 2 Ves. Jun. 304. Dungey v. Angove, PREVENTION OF FRAUD. 145 person capable of interpleading, and it must shew that there is such a person in rerum na turd as can interplead 6 . It must also shew, that each of the Defendants whom it seeks to compel to interplead, claims a right, otherwise both the Defendants may demur: the one, be- cause the Plaintiff shews no claim of right in him; the other, because the Bill shewing no claim of right in the Co-Defendant, shews no cause of Interpleader c . If the Plaintiff shews no right to compel the Defendants to interplead, whatever rights they may claim each Defendant may de- mur d . Such Bill lies where the Tenant may be liable to pay his Rent to one of two different persons claiming the same Rent, in privity of Tenure and privity of Contract, as in the Case of Mortgagor and Mortgagee, Trustee and Cestui que Trust, or vvherethe Estate is settled to the use of a Married Woman, of which the Tenant has notice, and the Husband has been in the receipt of the Rent, and differences arise between them, and she claims the Rent. There may be a variety of Cases in which the Tenant, not disputing the Title of the Landlord, but affirming that Title, the Tenure and the Con- tract, by which the Rent is payable, but where it is uncertain to whom it is to be paid, may file a Bill ot' Interpleader e . But a Tenant cannot file a Bill of Interpleader against his Landlord, on b 1 Ves. Sen. 249. Metcaif v. d lb. Hervey. • 2 Ves. Jun- 312, Dungey . c Mitford's Treatise, p. 12& v. Anjjove- VOL. I, t 146 EQUITY JURISDICTION. notice of an Ejectment by a stranger, under a title adverse to that of the Landlord f . But this Rule does not hold, where the question arises upon the act of the Landlord subsequent to the Lease g . As where a Lessee of Tithes filed such a Bill against the Lessor, the Vicar, and the As- signees under an Insolvent Act of which he took the benefit subsequent to the Lease ; each of them claiming the Rent; and the Court thereupon directed an Action to be brought by the As- signees, and to be defended by the Vicar h . So, in Lord Thomond's Case, a Bill of Interpleader was filed by Tenants, against their Landlord, and persons claiming Annuities subsequent to the Lease, and the Bill was sanctioned by Sir Thomas Seicell, the Tenant being by the Act of the Lessor entangled in a question which he could never settle*. If a Guardian having an Infant in his custody, conceals and will not produce him, but sets up a Title to himself, and the Plaintiff sug- gests by his Bill, that the Infant has a right to controvert that Title, " in such a Case and so charged," says Lord Hardwicke, " I will not say but such a Bill might be brought to compel the Guardian to produce him k ." If one who is not a party to a Suit, supposes he has a separate Interest in the matter in ques- tion, and commences his Suit against the De- f Ibid. See also Clarke v. h 9 Ves. 107. Cowtan v. Byne, 13 Ves. p. 386. Williams. « 9 Ves. 107. Cowtan v. * lb. Williams, see also Clarke v. k 1 Ves. Sen. 349. Metcalf Byne, 13 Ves. p. 385. v. Hervey. PREVENTION OF FRAUD. 1 J7 fendant, praying to be relieved according to his right, the Plaintiff in the first Suit may make the Plaintiff in the second Suit a Defendant, in order to interplead, and contest the right 1 . A meresla/cc- hojder may file such a Bill ■*, and so may Agents for Captures". Where several Bills are brought by the same Person and for the same thing, or in Case of an Infant, where several Bills are brought, by several prochein Amys for the same thing, the Court will, on motion, stay the proceedings in all but one Suit; but the Court will not interfere thus arbi- trarily, except in these Cases ; for, says Lord Hardwic/ce, every person in a free Country, as this is, has a right to bring his Suit and be heard : and, accordingly, he would not stay proceedings in a Case where two Bills had been filed for the same purpose against the Defendant, the one by the party interested himself in a Co-partnership Account, and the other by an Assignee of that Plaintiff, though the^e were great marks of its being a contrivance p . A Bill, praying that a Modus of £7. might be established, and that the Rector of Market Bos- worth, and Rector of Sibson might interplead as to the Tythes to be covered by the Modus, was dismissed **. 1 Prec. Reg. p. 78. last is stated to liuve been brought, Edition. and an Issue directed. m 6 Ves. 418. Aldridge v. ° Ambler 103. Gage agains* MesniT. Bulkt'lv. ° See 9 Ws. 73. Suttons v. p lb." Earl of Scarborough, where q 3 Anstr. 801. Woolaston m thv Pleadings, auch a Bill and others v. Wright. 12 14S EQUITY JURISDICTION - . If on a Bill of Interpleader, a Trial at Law is directed between the Defendants, the Suit is thereby ended as to the Plaintiff; and if the Plain- tiff dies, the Defendants may still proceed without reviving the cause r . If an Interpleading Bill is properly instituted, the Plaintiff is entitled to his Costs, out of the Fund in Court"; and if there be no fund in Court, the Costs will be given against the Party who oc- casioned the Bill f . Costs may be given as between the Defendants to an Interpleading Bill v . Justice requires this, and it has been done in a variety of Cases; the decision to the contrary, of Dowsonand IIardcastle v , not having been followed. It is very obvious that Bills of Interpleader may on many occasions be advantageously re- sorted to; but the Court does not look very favour- ably upon them, and Lord Hardicicke expressed himself unwilling to allow new inventions, in the bringing of such Bills *. S. Bills of Certiorari. A Special Writ of Certiorari is frequently prayed for in a Bill filed by a Defendant a , in a suit in an inferior Court of Equity, having limited Juris- diction, such as the Courts of Equity in Counties T 1 Vern. 352. last edition, w 1 Ves. Jun. 3(58. Anonymous. x Metcalf v. Harvey, 1 Ves, • 2 Bro. 149. Aldrich 249. against Thompson. a Such a Bill cannot be filed. c Ves. 419. Aldrid^e y. by the Plaintiff, iu the inferior Mesner. Court, Jacob's Ch, Prac. 1 vol. » 9 Ves. 10S. Cowtan v. Wil- 080. hams, and the case in note. •pttEVCNTJON OF FRAUD. 14$ Palatine b , the Courts of Great Sessions in Wales ' , the Courts of the two Vnicersitics of Oxford and Cambridge, and the; Courts of the Citij of London, and the Cinque Ports, to remove a Cause into the Court of Chancery, upon a suggestion, either that the cause is out of the Jurisdiction of the Inferior Court, or that the Defendants, or the Witnesses, live out of its Jurisdiction, and are. not able, owing to Age or Infirmities, or the dis- tance at which they live, to attend such Inferior Court, or cannot be compelled by the process of such Court to be examined there, and that for these or other reasons, assigned in the Bill, equal justice is not likely to be obtained in such Court. This Bill does not pray that the Defendant may Answer, or even appear to the Bill, and conse- quently it prays no Writ of Subpoena* 1 . When the Party has filed his Certiorari Bill, on Motion, and a Certificate from the Six Clerk that the Bill is filed, the Certiorari Writ prayed for by it will be granted by the Lord Chancellor, and is usually directed to the Judge of the In- ferior Court, requiring him to certify or send to the Court the Tenor of the Bill or Plaint there with the process and proceedings thereupon, When the Order is passed and entered, the Clerk in Court procures the Writ, and upon the making out and receipt of it, a Bond is entered into, b 1 Ch. Ca. 31. According to some Precedents c Dougl. 3. note 2. a Subpoena is prayed; tee 2 Vol, J Mitford's Pleadings, p. 40, Jacob'.-. Chancery Prac. 033, l r )0 EQUITY JURISDICTION. before the Register, by the Plaintiff in the Cer- tiorari Bill, together with a surety, to the Master of the Rolls, in a penalty of a£lO(), conditioned that the Plaintiff shall prove the suggestion of his Bill in fourteen days after the return of the Writ, which is returnable within fourteen days after its being served on the Defendant. Upon the Writ of Certiorari being served and returned, a motion is made to file the Writ, which will thereupon be ordered to be filed, together with the proceedings removed. If it appears by the Plaintiff's own shewing in the Billjiled by him in the Inferior Court, that he lives out of the Ju«« risdiction of such Court, then the Plaintiff in the Certiorari Bill, without proving any allega^ tion in his Bill, may obtain an order on Motion or Petition to retain the Bill removed ; after which the Defendant must put in an answer as if the cause had been originally instituted in the Court in which the Bill of Certiorari is exhibited. When Interrogatories to prove the suggestions of the Certiorari Bill are necessary, they must be filed with the Examiner, and Witnesses exa- mined by the Plaintiff, and by him only, for the Defendant is not permitted to examine or to pub- lish anything to disprove their Testimony. An order must be procured by Motion or Petition to refer such examination to a Master, and for the Examiner to attend with the depositions. The Master's report must then be obtained ; and if he certifies the suggestions of the Bill to be proved, PREVENTION OF FRAUD. IjI the Court may be moved upon such report, to have the Bill retained. If the suggestions in the Bill cannot, from circumstances, such as the re- moteness of the Witnesses or other good cause, be proved within the fourteen days, further time to make such proofs may be obtained on a Motion or a Petition supported by an Affidavit of the Circumstances. The Proofs on this occasion, are not afterwards made use of upon the hearing of the removed cause ; but the Parties after such removal, proceed, in the ordinary course, and to the examination of witnesses, if necessary : for the proofs in the Cer» tiorari Bill, are only for the purpose of giving the Court Jurisdiction, If the suggestions of the Certiorari Bill are not proved, a Procedendo may be applied for, and obtained, which is a Writ directed to the Judge of the Inferior Court, requiring him to proceed in a Cause, which is removed into a Court of Equity, by Certiorari, &c. the Plaintiff, in the Certiorari Bill, not having sufficiently proved the suggestions in such Bill. Ii upon a Certiorari Bill the cause is brought on to a hearing, the Court, if they think fit, may make a Decree, or send it back to the Inferior Court to be determined ; and sometimes the Court sends it back after publication passed, and a Subpoena served, to hear Judgment, and before the hearing 6 . I Stephenson v, Houl ditch, 2 Vern. 491, 152 EQUITY JURISDICTION 9. Bills to perpetuate Testimony, The very title of this Bill, explains it use. The Lord Keeper Egcrton expressed his dislike of" these Bills, because, the Depositions are not ordinarily published, but upon oath, that the wit- nesses are dead, so that the Witness is not affected by the fear of temporal punishment. Indeed, Lord Chancellor Parker thought such Evidence eould not amount to Perjury at Law, no Issue being joined f . The Bill sets forth the Plaintiff's Title to the thing in question, or Interest in the subject, the Matter touching which the Plaintiff is desirous of acquiring evidence, the Interest in the Defen- dant, to contest the Title of the Plaintiff in the subject of the proposed testimony, that the wit- nesses are old and infirm, or sick, and not likely to live, or that they are going to Sea s , or are be- yond Sea h , or that the facts to be examined to, are of great importance, and no other but the Witness*, or two Witnesses' 1 to be examined, is, or are privy to them, whereby the Plaintiff is in danger of losing his Testimony. The Bill ought also to 6tate, that the facts about which the Wit- f Cann v. Cann, 1 P. Wms. 6 See what Lord Mansfield 569; and see what is said by says in Fabrigas and Moystyn, C. Bar. Parker, 2 Eq. Abr. 11 vol. State Trials, p. 196. 402. '3 P. Wins. 77. Shirley et 6 The plaintiff will not be al. v. Earl Ferrers, and the allowed to examine witnesses cases cited in note 1. See also de bene esse, because they are Hawkins against Middleditch, going to the East Indies, if 2 Bro. 641. they are his servants, and he k Lord Choi mondeley against might keep them at home, the Ear, 1 of Oxford, 4 Bro. 157. Bunb. 320. Com. Dig. Tit. Chancery R, PREVENTION' OF FRAUD. 153 nesses are to be examined cannot be immediately investigated in a Court of Law, or that before an investigation can take place, the evidence of a material witness is likely to be lost by his Death, or departure from the Realm '. A Commission is then prayed to examine them, to the intent, that their testimony may be preserved, and a Subpoena is also prayed to the parties interested, to shew cause, if they can, to the contrary ; but the Bill should pray no other Relief. If the Defendant shews cause to the contrary within fourteen days, the Plaintiff is not allowed to proceed m . After the Bill is filed, the Court on an affidavit verifying the facts as stated in the Bill, and that the Witnesses are material, will on Motion or Petition, grant a Commission if the Witnesses live in the Country, or beyond Sea. If they reside within ten miles of London it will order them to be examined in Court, de bene esse, saving just exceptions to the other side, which will make their depositions valid in that cause only, and against those who are Parties to it, and all those claiming through some or one of them", whose interest has accrued, since the Bill was preferred ; but the Depositions must not be taken exparte, without notice, otherwise they will be suppressed , If the Defendant afterwards answers the Bill, the Plaintiff should reply, and examine de novo 1 See as to this Mitford's bury Claim pf Peerage, Dom. Pleadings, p. 51. Proe. delivered, on the 3UtU m 2 vol. Com. Dig. 291. May, 1801). Cited Prac. Reg. 31. ° Lovedon against Milfurd, n Seethe opinion of the 4 Bro. C. C. 540. Judges in the case oi* the Ban- 134 EQUITY JURISDICTION, the Witnesses before examined, who are alive, and upon the return of the Commission publication is made of the Depositions thereby taken, with the Depositions of the Witnesses before examined, who were dead before the second Commission p » Depositions maj r , by the consent of Parties, be published whilst the Witnesses are alive ; but otherwise, depositions taken on these Bills are not, as before observed, ordinarily published, but upon oath, that the depositions of such Witnesses are necessary, and that they are either dead, and therefore incapable of being examined, in chief, (as they ought to be if possible) or so aged or incapable, that they cannot travel or testify, without danger to their lives q , or that the Wit- ness is gone to a great- distance ; or, in a word, that there is a moral impossibility to have an Examination in Chief r . Having stated the essential properties of a Bill of this nature, and the proceedings thereon, it may be proper to illustrate what has been said, by the mention of some cases on the subject ; and first, as to the title to the thing in question, or Interest in the Plaintiff necessary to support the Bill: with respect to which, it has been decided, that neither a Tenant in Tail in Remainder, nor their Issue, can file such a Bill to perpetuate the Testimony to the Marriage of theTenant in Tail, for p Corny n"s Digest, 2 vol. 292. v, Corbett, 1 Ves. and Beames* * Sir N. Bacon's Rules, p. 335. Wyatt's Prac. Reg. 72 and 73. r 2 Ves. 337. and see what 2 Ves. 337 ; and see Corbett Ch. Bar. Parker says, 2 Eq, Abr. 402, PREVENTION OF FRAUD. 155 want of a present Interest'. It has also been de- cided, that the next of Kin of a Lunatic, though the Lunatic be in the most hopeless state, have not such an Interest as qualifies them to file such a Bill 1 ; nor will such a Bill lie during the life-time of the Lunatic to perpetuate the testimony of Witnesses to a will made by him previous to his Lunacy v ; but a vested Interest, though the least valuable that can be conceived, gives a right to preserve Testimony w . It has been determined that a Plaintiff is (entitled to perpetuate the testimony of witnesses to an usurious contract, notwithstanding his not offering to pay what is justly due *. And Lord Hardwicke has said, there is no certain distinction laid down where a Man is forbid to perpetuate tes- timony as to personal demands against himself y . A Bill may be brought to perpetuate Testimony, in many cases, where a Bill could not be brought for relief without waiving Penalties ; as in Waste, ox in the case of a forged deed, or in the Case of Insurances, after Commissions to examine Wit- nesses beyond Sea, as to fraudulent losses ; and yet, in many cases, fraudulent losses are subject to a penalty, and are sometimes felonious % It was said by the Lord Keeper, in Gell and • Allan and Allan, MS. S. C. w Dursley v. Fjtzhardinge, loVes. 130. 6Ves. 2lil. ' 6 Ves. 251. Lo'.d Dursley * 1 Atk. 450. Earl of Suffolk v. Fitzhardin^e. v. Green ; see also what Lord v lVern. 105. Sackville v. Hardwicke says, in Chaucey Ayleworth, and dicta to the v.Tahourdin, 2 Atk. 293. same Effect by Lord Eldon, J lb. JHS. ■ 1 Atk. 450. Earl Suffolk y. Green, 15(3 EQUITY JURISDICTION. "Hay ward *, that he would not allow examina- tions in perpctuam rei inemoriam, for such trivial things as right of Common, or of Ways, or Water Courses; or, at least, not till after a Recovery at Law h . Such a Bill will lie to examine Witnesses to prove a Modus dccimandi c . So, to prove a pro- mise, &c. which is to be performed after the death of A d . So it will lie, in aid of a legal title, and before the action at Law is brought ; as where a Bill was filed against the East India Company and their Secretary, praying a Commission to examine witnesses in India, and that the Defen- dants might discover by what authority the Plaintiff was dispossessed of a Lease for supplying Madras with Tobacco, the Plaintiffs intending to bring an Action e . But in Egerton and Moshjn, it was held that before an Action brought, a Bill for perpetuating the testimony of witnesses could not be supported f ; but in this case the Trespass was committed by a known Defendant, whereas in the former case, the Bill was to discover by whom the Trespass was committed. Where lands are devised by will, and there is no occasion or opportunity to prove and establish it at Law, it is a very common practice to file such a Bill as this, against the Heir at Law ; for though by the same will, goods and chattels are be- queathed, yet the proving the same in the Eccle- 1 1 Vern. last Edition, p. d Com. Dig. tit. Chancerv, 812. R. b lb. p. 308. Paulet v. e 1 Bro. 469. Mordalay Jnorev. against Morton. c 1 Yern. 184. Somerset v. f lb. 470. Mordalay against Fotherby, Morton, PJ1EVENTI0NT OF FRAUD. 3k57 siastical Court will be of no avail with respect to the Lands thereby devised. The Defendant hav- ing appeared and answered a Bill for this purpose, the parties proceed to Issue as in other cases, and then the Plaintiff examines all the Witnesses, if living, to the proof of the original will, or proves the hand -writing of such of them as are dead, which being done and publication passed, there is an end of the Cause. After Publication of the Depositions of the Witnesses, in these cases, in order the better to perpetuate their testimony, it is usual to inrol the pleadings, with the Commis- sion, Interrogatories and Depositions, and after- wards to exemplify them under the seal of the Court, and such exemplifications become evi- dence in support of the title of the Devisee in all Courts of Law and Equity ; and no other proof is necessary of such Copies, than the production of them s . If, in a Bill to perpetuate testimony respecting a right of Common and Way, the charges in the Bill are too general, and not sufficiently descrip- tive of any particular right, a Demurrer will hold h ; for the Bill must set out the way exactly per et trans, in the same manner as it ought to be set out in a Declaration at Law '. With respect to the statement in the Bill of the matter touching which the Plaintiff is desirous of acquiring evidence, Lord EUlon\\&s observed Gilb. Law of Evidence. h 1 Ves. jnn. 449. Cresset v. p. 19. Teak's Evidence, p. Milton, S. C. 3 Bro.C. C. 48L, SO. ' dell v. Uuwvaid, 1 Vern. 312, 1;33 EQUITY JURISDICTION - . that great danger may arise out of such Bills, and that the facts which the Plaintiff wishes to be examined to, should be particularly stated*. As to shewing the Interest of the Defendant to contest the title of the Plaintiff in the subject, it has been determined, that, to a Bill brought to perpetuate testimony as to the legitimacy of the Plaintiffs, who were Infants, and entitled to a Re- mainder in Tail, after an Estate for Life, against others in Remainder, a Demurrer, by those who were the seventh and eighth in Remainder, on the ground, that their Interests were too remote to justify their being made Defendants, was overruled '* Lord Eldon put a case, where, it seems, he thought a Demurrer would lie ; as where there is an eldest son illegitimate, and a devise to him by his Father, in Tail, who leaves the Reversion to descend ; and he also has a Son by marriage, and a dispute has arisen ; the eldest insisting he was not illegitimate ; and the younger that the first marriage was to his" Mother ; and he as Re- versioner should file a Bill to perpetuate testi- mony : " I am not quite sure,'* says Lord Eldon , " that in such a case the elder might not say, he being in possession as Tenant in Tail, might suffer a Recovery and destroy the Reversion, and therefore Equity could not interfere" 1 ." As to the Witnesses being old and infirm, it seems, that a Witness is not, for the purpose of k Bartlett and Hawker, MS. m 6 Ves. 201. Lord Dursley 1 6 Ves. 251. Lord Dursley v.Fitzhardinge, Allan v, Allan, v. Fitzhardinge. MS. PREVENTION OF FRAUD. 159 this Bill, considered old, unless he is seventy years of age n ; but in one case, an order was made to examine a surviving Witness to a will, de bent esse, upon an affidavit that the parties concerned lived in Virginia, and that the Witness was up- wards of sixty years old, and greatly afflicted with the Gravel . With respect to a previous investigation in a Court of Lav, it may be observed, that a Demur- rer will lie to a Bill of this kind, if there is no impediment to the Plaintiff trying his Right at Law p , unless where it is to preserve the testimony of Witnesses old and infirm, who may die before a Trial at Law. A Devisee will not be allowed to examine Witnesses, on such a Bill, to prove a will against a purchaser without notice, until the will has been established by a verdict at Law q ; and in such case, a Purchaser may protect himself by plea\ or demurrer'. But it is otherwise when the Party filing the Bill, is himself in possession, for then, he has no occasion to establish his righl at Law. On these grounds, it has been holden, that if such Bill is filed by one, out of possession, having only a right to a fishery, a demurrer will lie 1 . "^ Ambler, G5. *Fitzhugh Carew, BrantUin v. Ord, against Lee. 1 Atk. 571. lb. " 1 Vera. 354. Bechinell v. p 1 Vern. 441. Parry v. Arnold. Rogers, 1 Dick. 55. Cox v. r lb. Colley, Wyatt's Prac. Reg. 74. ' 1 Vern. 441. Parry v. I P, Wins. 117. Philips v, Rogers. •Prec. C'h, 531,2. and see 1s. 493. Whitworth " See Fluinmer v. May, 1 v. Davis, 1 Ves. and Bea. 549. PREVENTION OF FltAUD. 173 made a Party, unless where the Will is impeached as obtained by fraudulent practices. But it' a Witness answers, he must answer fully \ It is a general Rule, applicable, indeed, not merely to this description of Bill, but to all kinds of Bills, that no person can be compelled to give a discovery that may subject him to a Prosecu- tion for Felony % or to answer what is a matter of Scandal b c , or what may lead to a legal accu- sation a , or to what may subject him to a penalty, and not merely what musl e ; or any thing in the nature of a penalty f , or Forfeiture s ; but if the Plaintiff waives the Penalty or Forfeiture, the De- fendant must then discover 1 '; but the waiver ought to be by -all those who can claim any part of the penalty or forfeiture; for if the penalty belongs one half to the King, and the other to a Corporation, the waiver by the Corporation, and not by the Attorney General also, is not sufficient '. But if the Defendant has cocenanted'jo answer any Bill of Discovery, and not to plead the Acts in- ; Pearson against Pearson, Atk. 539. Harrison v. South- IBio. 293. cote, 2Ves. 3S9. Urownsword 1 Cartwright v. Green, 8 Ves. v. Edwards, 2 Ve's. 245. 408. ' Smith v. Read, 1 Atk- 529. b See Franco v. Bolton, 3 Ves. « Toth. 69. 2 Ch. Rep. 08. 370. Eq. Ca. Abr. 77. c Finch v. Find), 2 Ves. 492. u Bird v. Hardwicke, 1 Vern. f Bishop of London v.Fytche, 109. E. I. Com. v. Sandys, I Bn>. . 71. 17t> EQUITY JURISDICTION. if the Bill prays Relief, as well as a discovery, and the discovery is auxiliary to the Relief, a De- murrer to the discovery alone will not hold y ; Upon a Bill praying nothing but a Discovery, the Defendant is entitled to Costs % as between Attorney and Client*; but Mr. Justice Buller thought the Rule thus laid down, was too general; and was of opinion that if the Plaintiff is entitled to the Discovery, and goes first to the Defendant to ask for the Accounts, he has in justice a right to, if the Defendant refuses, and the Plaintiff is thereby compelled to file a Bill for a Discovery, he ought not to have Costs; but if the Plaintiff files his Bill without trying first to get the dis- covery in that way, in which Men acting with each other ought first to ask their rights, he ought to pay Costs b . In a Case at Law c , the Counsel complained of the hardship of a Plaintiff in Equity being obliged to pay the Costs of a Discovery ; upon which Lord Kenyon observed, that he had once heard Lord Mansfield say, he thought in such a Case, the Court of Law ought to allow the Costs paid to the Defendant in Equity, as Costs at Law : that he was struck with the propriety of the observation, and thought it would be a good rule to be adopted. ' Forest's Rep. in the Exch. Ves. jun. 423; see also what 129. is said 2 Ch. Cases ; and I have 2 Simmonds v. Lord Kin- heard Lord Eldon approve naird,4 Ves. 740. this doctrine. a Cartw right v. Hately, 1 c Grant v. Jackson and Ves. jun. 293. others, Peake's N. Prius, p. * Weymouth t. Boyer, 1 203. PREVENTION OF FRAUD. 177 If the Defendant puts in his Answer in the Vacation, and no exception is taken to it in the first eight days of the succeeding Term d , he may move for an order for payment of the Costs of the discovery ; so that it is not quite accurate to say*, that the moment the Answer comes in, the De- fendant must be paid all the ex pence he has been at. Where a Bill prays a Discovery and a commis- sion to examine Witnesses, the practice is settled to be, that the Defendant is not entitled to move for his Costs, till the return of the commission ; and even then, not to give the Defendant his Costs, if he examines Witnesses in Chief, instead of confining himself to a Cross examination f . If after the Defendant has answered, the Suit becomes abated, it cannot be revived 5 . Where, therefore, the Plaintiff was a feme sole when she filed her Bill of Discovery, and afterwards mar- ried, whereby the Suit abated, the Suit, it was holden. could not be revived for Costs — a hard de- termination, reluctantly followed by Lord Eldon h . The Defendant cannot move to dismiss such a Bill as this, for want of prosecution '; for the cause ends with the Ans\cer y : and in one case where such a Bill was improperly brought to an d Stewart v. Semple, 5 Yes. e Alpha v. Payman, 1 Dick. 8G. so stated by counsel, and 33. seemingly, assented to by the h Dodson v. Juda, 10 Yes. Chancellor. 31. e See Hindman against Tay- ' Woodcock v. King, 1 Atk. lor, 2 Bro. C. C. 11. 280. Mos. 185. pl f 95. 1 Anonymous, 8 Yes. 70: see k 2 Bro. 10. also Banbury v. ,9 VeS, io.-}. VOL. I. N 178 EQUITY JURISDICTION hearing, the question was, whether the Bill should be dismissed, or the cause struck out of the Paper, and his Honor took the latter course, because, such a Bill is never dismissed, the words of a dismission being, " The Court seeing no cause to relieve '." 11. Bills Quia Timet. The denomination of Bills Quia Timet was borrowed, probably, from the Title of some ancient Writs at the Common Law; for as Lord Coke observes, " there be six Writs in Law, that may be maintained quia timet, before any molestation, distress, or impleading, as, 1. A Man may have his Writ or mesne, before he be distrained ; 2. A Warranlia cJiartce, before he be impleaded ; 3. A Monstraverunt, before any distress or vexation ; 4. An Audita querela, before any execution sued. 5. A Curia claudenda, before any default of In- closure; 6. A Ne injusle vexes before any distress, or molestation. And these," says Coke, " be called brevia anticipantia, Writs of Prevention™." When a Person is apprehensive of being sub- jected to a future inconvenience, probable, or even possible, to happen, or be occasioned, by the neglect, inadvertence, or culpability of another; or where any property is bequeathed to one, after the death of another in existence, and which the former is desirous of having secured safely for his- use, against the effects of any Accident, which 1 See on this subject, Hodg- m Co. Litt. and see 7 Bro» son against Dand, 3 Bro. C. C. P. C. 125. Toml. Ed. 475. PUEVENTIOX OF FRAUD. 179 may happen to it previous to the accruing of his possession, in either of these Cases, a Bill of the above description may he exhibited, which in the one instance will quiet the party's apprehensions of a future inconvenience, by removing the Causes which may lead to it; and in the other, will secure, for the use of the party, the property, by compelling the person in the present possession of it, to guarantee the same by a proper security, against any subsequent disposition, or wilful destruction ". Thus, in a Case decided by Sir Thomas Clarke, a Bill was filed by a Legatee for the security of a Legacy which the Defendant, an Executor, was to pay at the end of Ten Years after the Death of the Testator ; and the prayer of the Bill was, that the Defendant might admit assets and give secu- rity or pay the Money into the Bank; and though no particular reasons were assigned, such as wasting Assets or Insolvency in the Defendant , a decree was made that the Defendant should pay the Money into the Bank, and that he should have the Interest in the mean time, and that at the end of the Ten Years the Principal should be paid to the Plaintiff p . So, in a Case, where a Legacy was left to one to be paid at twenty-four, the Plaintiff being only twelve years old, the Father filed a Bill to invest n Analysis of the Practice of lier cases; see 1 Ch. Case* the Court of Chancery, p. 4-J. 121. Hinde's Prac. 128. p Ferrand against Prentice, ° Some such reason seems to Ambl. p. 273. But more fully have been assigned in the ear- stated by lord Thurlow, in Green and Pis,ot, 1 Bro. 105. N 2 ISO EQUITY JURISDICTION. the Lesracv in the Funds, and so it was decreed, though it was at the same time declared, that the Plaintiff was not entitled to the Money till twenty-four q . In like manner, where .=£2000 was left to the Testator's Daughter at twenty-one, and in default, to her Child, and if no Child, to one Mills; a Bill was filed to secure the Fund, and the Court held that a party so circumstanced was entitled upon such Bill, to have part of the Personal Estate secured for the Legacy r . The Doctrine seems to be the same, whether the Legacy be payable at a fixed, or a future, Contin- £-e?*/ 5 day; as where a Legacy was left to a Female Infant to be paid at twenty-one or Marriage with Interest at 4 per cent., but if she died before to sink into the Residue : on a Bill filed, the Court ordered the Legacy to be paid into the Bank, in order to secure the same, and if greater Interest than £i was made, it should be for the benefit of the Child; for if it produced less Interest, the Executor would not be obliged to make up the deficiency 3 . In this Case, also, there was not the least surmise of any danger of losing the Legacy, from the circumstances of the Defendant 1 , In another Case, where the Testator had given the Plaintiff ^15,000, to be paid at twenty-one, q Walker and Cooke, 15 p. 273; see also Studholme Feb. 1781. cited by Lord and Hodgson, 3 Peer Wins. p. Thin-low, 1 Bro. 105. 299. Pierce v. Taylor, lb. 108. "Johnson v. De la Cruze, s Green against Pigot, 1 Bro. 17th July 1749, cited by Lord 105; but see Palmer v. Mason, Thurlow, in Green and Pigot, 1 Atk. 505. 1 Bro. 105. and mentioned in : See S. C. 2 vol. Dick. Rep, i errand against Prentice, Am b. 580. PREVENTION OF THAUD. 131 or Marriage, with Interest in the mean time; hut if she died before, to sink ; the Master of the Rolls thought the Legacy must be appropriated, and lie decided accordingly v . It must be observed, how- ever, that in cases of this description the Court will not interfere to secure the Fund, upon the application of a Person who does not shew any Title". Where one by will gave an Annuity out of his personal Estate, and a Bill of this kind was filed, the Master of the Rolls observed, " since the Executor has by his answer submitted it to the Court, whether he should give any Security, and appears to have expressed himself in words, threat- ening to defeat the Annuity, let the Master see a sufficient part of the personal Estate set apart, and assigned to a Trustee, in trust to secure the Annuity \ And where there has been no such submission by the answer, or any threats, vet the Court has in like manner interfered b . Other cases where Bills of this description have been held proper, arc also to be found in the Reports. As, where A. being seized of Lands in Fee granted a Rent-charge issuing thereout, and af- terwards devised the Lands to B. for Life, with remainder to C. in fee, and died: it was held, that such a Bill was proper to compel B. to pay • Carey against Askew, 2 b See Slanning t. Style, 3 P. Bro. 58. Wms. 3;J. r ),(3. Rous v. Noble, w Browne against Dud- 2 Vern. 249. S. C. 1 Ch. Cus. bridge, 2 Bro. tf. C. 321. 121. 1 Batten v. Eurnley, 2 P. Win-, p, 163. 182 EQUITY JURISDICTION. the arrears, for fear all should fall on C. the Re- versioner; although it was urged, that this was a remote Possibility . So, where A. was entitled to the use of Goods and a Library for Life, with remainder to the Plaintiff's Wife, who died, the Plaintiff, as her Administrator, brought a Bill of this deseription to have the Goods. &c. secured to him after the death of A., and a decree was made accordingly d . The validity of such a bequest, as that last mentioned, was atone time questioned; but such bequests were decided by Lord Somen to be valid e . It seems, however, according to the ob- servation of Lord Tliurlow, that the cases as to a Tenant for life giving security for the Goods, have been overruled, and the Court now demands only an Inventory, which, he observes, is more equal Justice, and that there ought to be danger, in order to require a Security f . Where a Bill Quia Timet was filed to deliver up an Apprentice's Bond and Indentures, he being out of his Time, it was ordered, that the Defendant should either bring his action within a Year, or deliver up the Bond and Indentures; for if it were at the Master's choice to stay as long as he pleased, he would perhaps stay, till the Apprentice's Witnesses were dead*. c Hayes v. Hayes, 1 Ch. Wms. p. 1. and to that effect Cas. 22'3. S. C. 1 vol. Eq. Cas. are the subsequent cases, 1 P, Abr. p. 78. pi. 4. Wms. p. 500. and 051. d Bracken andBentley, 1 Ch. f Foley against Burnet, 1 Bro. Rep. 110. S. C. 1 Eq. Cas. 279. Bill v. Kvnaston, 2 Atk. Abr. 78. pi. 1. 82. * Hyde and Parrat, IP. « 1 Ch. Cas. 70. S. C. 1 Eq. Abr. pi. 2. PREVENTION OF FRAUD. 183 So, also, the Lord Keeper North thought, that if A. is bound for B. and has a Counter Bond from B., and the money is become payable on the original Bond, Equity will compel B. to pay the Debt, although A. is not troubled or molested for the debt, since it. is unreasonable that a Man should always have such aeloudhun^ over him h . A Bill of this nature lies to secure the property of a deceased Debtor from being misapplied by his Executor'. But such Bill must be filed against the Executor, and not against the Deb'ors, fyc. of the deceased, unless, where the Execu- tor and Debtors collude*. If the Executor is insolvent, on a Bill filed, a Receiver will be appointed, who may bring ac- tions; and if Persons are about to pay Money to an insolvent Executor, the Court will restrain him from receiving it 1 . Pending a Litigation the Property is often in danger of being lost or injured, and in such cases, a Court of Equity will interpose to preserve it, if the Powers of the Court in which the Litigation is depending are insufficient for that purpose. Thus, during a Suit in an Ecclesiastical Court for administration of the effects of a Person dead, a Court of Equity will entertain a Bill for the mere preservation of the Property of the deceased, till the Litigation is determined 10 . But the h Ranelaugh v. Hayes, 1 ' Utterson against Mnir, Vera. 190. 4 Bro. t. C. 277. 1 2 Atk. 212. 1 vol. of Fonbl. m iMitford's Pleadings, 122, Equity, p. 42. in uote. 123. King and King, (J Vttf. fc Elmslie v. M acaulev, 3 Bro. 172. 024. 181 EQUITY JURISDICTION. Court will not interfere by appointing a Receiver, upon the mere ground, that two wills are in con- troversy in the spiritual Court, and no sugges- tion, that the Property is in danger, and can- not be secured by an administration pendente Lite*. 12. Bills for the delivery up of Deeds, or for se~ curing them, or the delivering up of specific Chattels. Bills for the delivery up of Deeds, or for the securing of them, are classable under this head. The Court, however, seldom interferes in cases of this kind, and when it does, the relief is always upon Terms p . Lord Thurlow seems to have been of opinion that, as a general rule, it could not be maintained, that wherever one Party hath an Instrument upon which he cannot maintain an action at Law, he will be decreed in Equity to give it up q ; nor would he, where a Partnership had been dissolved, and a note afterwards given in the name of the Partnership, by the Defendant, order the Plain- n Richards v. Chave, 12 Ves. p Bromley v. Holland, 5 Ves. 4G2. Knight v. Duplessis, 618. 1 Ves. 324. See on this subject Q See Hilton v. Barrow, v. argued on 1 Ves. jun. 284. and Ryan demurrer, 13th June, 1812. against Macraartb, 3 Bro. C. C. MS. 15. PREVENTION OF FRAUD. 185 tiff's name to be erased r ; but tins decision was not satisfactory to the Bar, at the time, for it is observable that the note did not on the face of it appear to be void, but only from collateral circumstances 8 : and in Minshaw and Jordan, cited before Lord Thurlow in the case alluded to ', a note which on the face of it appeared to be good, was ordered to be delivered up. There is no instance, it seems, of a decree for delivering up of a Bond, which on the face of it appears to be void v ; and which by pleading at Law, may be shewn to be void*. Lord JZldon, however, (differing, as he confesses, from others,) always was of opinion, that a Court of Equity has the Jurisdiction, and duty, to order a void Deed to be delivered up, and placed with those whose Property may be affected by it, if it remains in other hands 2 ; but ^voluntary Deed, it seems, will not be ordered to be delivered up, unless fraud appears*. Where the Legislature declares certain Deeds and Instruments to be void, as the Annuity Act* does, there is inherent in the Court of Chancery ' 3 Bro. C. C. 15. * The Mayor, &c. of Col- • Vid. arg. in Jackman v. tester v. Lowton, 1 Ves. and Mitchell, 13 Ves. 565. Bta - 244 - Hayward v. Dims- '3 Bro.CC. 19. dale 17 Ye, 112. v T , ... , „ a Colman v. Sarrel, 1 Ves. tiv JaC r k ' nan v * Mitchell, 50. S. C. 3 Bro. 12. Oxley v. J J Ves. o«5. LeCj j Atk> C24 , und 8ee Doe * Franco v. Bolton, 5 Ves. and Routled^e, Cowp. 705. 368. But Befi what Lord Eldon t> 17 Geo. 3 c. 26 observed of that case in Biom- *" ley v. Holland, 7 Ves. 19. 186 EQUITY JURISDICTION. a Jurisdiction to order them to be delivered up 1 ; but this is always on terms d . And so, where a Deed is void on grounds of Public Policy, as where a Bond is given in con- sideration of future cohabitation' 1 , it will be or- dered to be delivered up, though the Plaintiff be Particeps Crintinis, as he is also, in the case of a Marriage Brokage Bond f . And so, where a Bond was given to secure to one Creditor the deficiency of a composition, not communicated to the other Creditors s , and where a Bond was given to procure an office contrary to Law h , it was decreed to be delivered up ; though to a person, who was Particeps Criminis '. Bills will lie to have Promissory Notes, or Policies of Insurance, delivered up, in cases where a vexatious use may be made of them k ; but the Court will not order a Power of Attorney, which is revocable, to be delivered up '. So, contracts for the purchase of Estates have been ordered to be delivered up after the death of a Purchaser, and a Suit instituted for an account of Assets™. e Underhill v. Horwood, lOVes. 218. I believe Byne v. Vivian, 5 Ves. 004, was the first case. This was followed by Byne v. Potter, lb. C09. Bromley v. Holland, lb. G10. reversed on appeal, 7 Ves. 3. Hoffman and Cooke, 5 Ves. 623. Dnff v. Atkinson, 8 Ves. 077; and see Philips and Craw- ford, 9 Ves. 214. S. C. 13 Ves. 475 ; and see what is said in Low v. Harthard, 8 Ves. 135. u Seethe decree in Bromley and Holland, which seems to have been very carefully drawn up, 7 V«s,29. e Gray v. Mathias, 5 Ves. 28. f Lord St. John v. Lady St. John, 1 1 Ves. 535,6.and Shirley and Ferrers there mentioned. 8 Jack man v. Mitchell, 13 Ves. 581 ; and see Easta- brook v. Scott, 3 Ves. 450. h 5 & 6 Edw. 6. ' Law v. Law, For. 140. S. C. MS. k Bromley v. Holland, 7 Ves. 21 ; and see Jervis and White, 7 Ves. 414. Kemp v. Prior, lb. 249. ' 7 Ves. 28. m Mackreth v. Marlar, 2 P. Wms. C8. in n. 1. PREVENTION OF FRAUD. 1ST A Bill lies for the delivery up of Deeds unjustly detained; for in an action of Trover damages only can be obtained for the detention of the Deed, but not the deeds themselves 1 ". If a Conveyance is made of an Estate with a power of Revocation, and it is afterwards revoked, a Bill lies to have the Conveyance delivered up". So, if one settles Land upon his Daughter in Tail, and takes a Bond from her not to commit waste", or not to suffer a Recovery •', the Bond will be ordered to be delivered up. Where, to a Bill to have Deeds delivered up, the Defendant stated himself to be a Trustee for Mortgagees, bid didnotnamc them, he was decreed to deliver up the Deeds and pay Costs q . Such a Bill will not lie to have a presentation to a living, upon the next avoidance, delivered up, on account of gross misconduct in obtaining it r . In the case, of the Bankruptcy of a Person pos- sessing Deeds, they will not be ordered to be delivered up on Petition, but a bill must be filed'. In some cases, it seems, a Will may be applied for to be delivered up, as an Instrument that ousfht not to vex the Plaintiff's Title; but if it m Jackson v. Butler, 2Atk. man, 2 Vern.233. S.C. Prec. 306. Ch. 28. " Gilb. Eq. p. 1. q Earl of Scarborough v. Jervis v. Bruton, 2 Vein. Parker, 1 Ves. jun. 267. 251. r McNamara v. - — > p Tutton v. Mollineux, 5 Ves. 824. Moore, 809. approved 2 Vein. s Ex parte Poole, 1 Ves. jun. 251. but 6ee Freeman v. Eree- 100. 3SS EQUITY JURISDICTION. contains in it, any thing that has validity, it ought not to be delivered up l . There are many cases where an agreement for the sale of Lands has been ordered to be delivered up y ; and in which the Court has resolved that though it will not specifically perform an agree- ment, yet, where the conscience of the Party is not affected, it will not stand neuter, but order the contract to be delivered up, to prevent proceed- ings at Law z . Prima facie, a Tenant for Life is entitled to the Custody of Title Deeds v , (unless perhaps as against a Remainder-man whose Interest is ex- pectant on the Tenancy for Life w ;) but if the Deeds have got into other hands, and the Tenant for Life is satisfied, and does not interest him- self about them, a Remainder -man> it seems, may apply to have them delivered up x . Where Persons have had successive interests, in Real or Personal Property, Deeds have, on a Bill for that purpose, been ordered to be deposited in Court a ; and there are a great many cases where a Remainder-man in Tail, or a Reversioner in Fee* has been held entitled to have the Title Deeds secured for his benefit, though an Estate for Life was standing out b . But, in general, the Title 1 Pemberton v. Pemberton, * Mortlocke v. Buller, 10 13 Ves. 298. Ves. 308. see also 16 Ves, 83. v Ford v. Peering, 1 Ves. 'See a case of that kind, jun. 76. Hodgeson v. Bussey, 2 Atk. * Ivie v. Ivie, 1 Atk. 430. 89. * 1 Ves. jun. 78. b Smith v. Cooke, 3 Atk. » See Willan v. Willan, 382. Reeves and Reeves,2 Mod, 16 Ves. 83. 132. PREVENTION OF FilAUD, 189 Deeds remain with the Tenant for Life e ; and it has been determined that such Relief will not be given against a Father, Tenant for Life, in favor of his Son, Tenant in Tail '\ The cases in which the Court interferes, are where the Remainder-man has been a stranger to the Tenant for Life, and not where he is Tenant for Life under a Settlement made by a Grand- Father, with remainder to the Son in Tail only, remainder to the Grand-father; but in such casr, i( there were Evidence that the Father was de- stroying the Deeds, in order to better and enlarge his Estate, the Court would take the custody of the deeds e . AH Persons concerned in the Title Deeds, ought, in these cases, to be made Parties f . A Jointress will not be compelled to bring her Jointure Deed into Court or before a Master, unless, the Party requiring it, will confirm her Jointure ; but the Court will direct her to deliver in a Schedule of the Deeds, and the Court, at its discretion, will order what shall or shall not be produced B . If a Bill be filed against her to have deeds delivered up, without an offer to confirm her Jointure, she may plead the Settlement in bar h . With respect to the delivering up of specific Chattels, it has been holden, that such a Bill will c Bowles v. Steward, 1 Srh. « Petre v. Petre, 3 Atk. 511. and I.ei'r. 233 ; and see 1 Ye*. Pyncent v. Pyncent, :3 Atk ;un. 70. 8 Ves. 32#. 071 ; ami see lord v. Peering, d Lord Lempster against 1 Ves. jui.. 7tJ. Senhouse v. Lord Pomfret, Anibl. 104. I-arl, 2 Yes. 450. e Pyncent v. Pyncent, 3 Atk. " Chamberlaia v. Knapp, 571. lAtk. o>. r Ib. 190 EQUITY JURISDICTION. jie, in some cases, for the delivery of a specific chattel, to which the PlaintirYis entitled', and where the object of the suit is not liable to a compensation in damages' 4 ; as in the case of the Pusey Horn f, and of an old silver Altar Piece 1 " ; a silver Tobacco Box, belonging to a club"; a Cherrystone finely engraved ; an extraordinary piece of wrought plate \ and cases of that de- scription p . In Trover, the value of the deeds is recoverable; in Detinue, the Judgment is for the Deeds, or the value : and it is the Imperfection of the Law in such actions, that seems to be the ground of the Jurisdiction in Chancery for the specijic delivery of the thing itself q . 13. Bills to enforce Contribution. Actions between Partners, to enforce a Con- tribution, have been frequent of late, but formerly that was always effected by a Bill in Equity ; and a Bill, it seems, for that purpose, may still be brought r . One surety may compel another in Equity, (and this though he be a supplemental surety %) to contribute towards payment of a debt for which '' SeeNutbrowne v. Thorn- "Pearnev. Listle, Ambl. 77. ton, 10 Ves. 163. S. C. M. S. p See Lloyd v. Loaring, k See Fells v. Read, 3 Ves. 6 Ves. 773. and Lowther v. 71. Lowther, 13 Ves. 95. 1 Pusey v. Pusey, 1 Vern. q Vid. Wallwynv. Lee, 9 Ves. 273. 33.' m See Duke of Somerset v. r Wright v. Hunter, 5 Ves. Cookson, 3 P. Wms. 389. 792. » Fells v. Read, 3 Ves. 71. * Cook's Case, 2 Freem. 97. PREVENTION OF FRAUD. 191 they were jointly bound 1 ; for though the prin- cipal is to discharge all the obligations of all the sureties v , yet they stand with regard to each other in a Relation which gives rise to this right, among others, that if one pays more than his proportion, there shall be a contribution for a proportion of the excess beyond the proportion, which in all events he is to pay w ; but, where any act has been done by the obligee, that may injure the surety, the Court is very glad to lay hold of it in his favor", and will in such case, if called upon, decree a perpetual Injunction, to restrain the holder of the security from suing upon it y . If, therefore, the holder of the Security gives time 7 , accepts a composition, or discharges the Estate of the Principal, without previous notice to the Sureties, and a reserve of the remedies against them, they will stand discharged"; but the discharge of one surety, does not discharge a Co-sure ty b . ' Toth. 14. 1 Cli. Rep. 34, Ves. 809. note a. Rees v. 1 Eq. C. Abr. 114. ease 9 ; Berrington, 2 Ves. jun. 540. and see Lloyd v. Mackworth, Nisbit against Smith, 2 Bro. Bunb. 138. Collins v. Griffith, C. C. 579. and see (> Ves. 809. 2 P. Wins. 314. a Ex parte Smith, 3 Bro. C. v See on this head Tynt v. C. 1. Ex parte Giffoid, Ves. Tynt, 2 P. Wms. 541. " 807. Rees v. Berrington, w Ex parte Gifford, Ves. 2 Ves. jun. 543,4. Wright v. 808. Simpson, 6 Ves. 734. Law v. " Law v. East India Com- East India Company, 4 Ves. pany, 4 Ves. 833. S24. Boulbee v. Stubbs,18 Ves. ' Nisbit against Smith, 20. 2Bro.C. C. 583. b Ex parte Gifford, Ves. ' m Skip v. Hue)-, 3 Atk. 91. 805. 192 feQUITY JURISDICTION - . If A. is bound for B. and has a Counterbond, B. maybe compelled, in Equity, to pay the debt, though A. is not sued c . Contribution has been decreed between the Joint and separate Estates of a Bankrupt ; the former having paid beyond its proportion, a debt to the Crown, under an Extent, the Bankrupts being jointly and separately bound d . Contribution has also been enforced among Assignees in Bankruptcy, to reimburse a payment by one, under an order, for a. Loss, occasioned by their joint Act \ Where entire damages are recovered against several Defendants guilty of a Tort, a Court of Justice will not interfere to enforce Contribution, among the wrong doers : but the non-performance of a Civil obligation is not considered as a Tort f . If a Ship be pledged abroad by the Master for Expences, as it may be, the part-owners are liable and compellable to contribute e . So, where goods are thrown overboard for the safety of a Ship, a right to Contribution arises ; and in cases of dispute, the Contribution may be recovered, either by a Suit in Equity, or an Action at Law h . On the same principle, if a Rent-charge is ? 14. Bills for Dower, or a Partition. There have been doubts as to the Principle on which Equity at first interfered in cases of" Dower; but so early as in the Reign of Eliza- beth, proceedings in Equity for the Recovery of Dower, appear to have been permitted f . Dower is a mere legal demand, and it is the diffi- culty under which a Widow labours at Law, from not being able to ascertain the Lands out of which she is dowable g , or the Persons against whom to bring her Writ h , and from the embarrassments oc- casioned by outstanding Terms, that entitles her to equitable relief. The Law gives her Dower out of the Estates of her Husband, and the mesne profits from his death : and if she proceeds at Law, and there should appear to be any Mortgage, or terms of years in her way, she would lose her Costs. The Heir has all the Title Deeds in his hands, and knows what the Estates are : his con- science therefore is affected, and hence., it seems, Equity interposes 1 , and, so usefully, that Writs of Dower are seldom brought k . In Equity, as at Law., there is no limitation to a claim of the arrears of Dower ', and though at Law by the Death of the Heir, the Widow loses all arrears incurred in his Life-time m , yet in ' Wild v. Wells, I Dick. 3. Curtis v. Curtis, 2 Bro. C. C. K Dormer v. Fortescue, 3 031. etc. Atk. 130. k Munday v. Munday, 2 h Manaton v. Squire, 2 Ves. Jun. 128. Freem. 20. « 9 Ves. 222. 1 See on this subject, Mit- ■ Mordaunt V. Thorold, 3 ford's Pleadings, 110, 111. Lev. 375. 7 19S EQUITY JURISDICTION. Equity, if she has filed her Bill before the death of the Heir, she is entitled to the Mesne Profits", from the time her Title accrued", provided she has made an Entry?; and so, in ease of her death, are her Representatives' 1 . Proceedings to obtain a Partition of Estates are also of frequent occurrence. The Jurisdiction in cases of Partition appears to have arisen in consequence of the Act, (5 9 Hen. VIII.) which makes one Tenant in common accountable to the other, so that since the Statute, they are become as it were Trustees the one to the other r . The earliest instance, however, of a Bill for* Partition 8 , is thought to be in the time of Eliza- beth'. In the Reign of James II. they were become frequent"; and in that of his Successor, the Chancellor observed, " he did no more ques- tion the Jurisdiction of the Chancellor in these eases than he did, whether a gift to a Man and his Heirs were a Fee-simple"*." Proceeding's to obtain a Partition of Estates may be referred to this head, since a Court of Equity issues a Commission of Partition, "on account of the extreme difficulty attending the process of Partition at Law, where the Plaintiff must prove his Title as he declares ; and also the 11 Curtis v. Curtis, 2 Bro. r Sic. diet. arg. 1 Vern. C. C. 020. 421. "Dormer v. Fortescue, 3 s Il.irg. Co. Litt. 1G0*. Atk. I'-iO. ' SeeTothill's Transactions ^ p Tilly v. Bridge, 2 Vern. of Chancery, tit. Partition. 519. S. C. Prec.in Ch. 252. T l Vern. 421. 2 Ch. Ca. " Wakefield v. Child, men- 189. tioned, 1 font*. Eq. p. 158. w Manaton v. Squire, 2 in n. Freem. 2G. PREVENTION OF F11AUD. 199 Titles of the Defendants, and Judgment is given for Partition according to the respective Titl< proved. That is attended with so much difficulty, that by analogy to the Jurisdiction of a Court of Equity, in the case of Dower, a Partition may be obtained by Bill x . And a commission so obtained, is much more convenient than the Writ ; the va- luation of the proportions is better considered, and the Interestsofall parties much better attended to>. It has been said, that a Decree tor a Parti- tion is a matter of right, and that there is no instance of not succeeding in it, but where there is not proof of Title in the Plaintiff "; but on the other hand it has been observed, that as a Plaintiff has a legal Title, it is considered as dis- cretionary in the Court, whether they will grant a Partition or not ; and where there are suspicious circumstances in the Plaintiff's Title, the Court will leave the Party to Law a . The Plaintiff must, it appears, state upon the Record his own Title to a Moiety \ and the Titles of the Defen- dants ; and with the view to enable the Plaintiff to obtain a Judgment for Partition, the Court will direct inquiries to ascertain who are, together with him, entitled to the whole subject . On a Partition, every part of the Estate need not be divided. If there be three houses, it would not be right to divide every house, for that would " Agar v. Fairfax, 17 Ves. Fawcett, 1 Dick. 299. and Jun. 552. Baring v. Nash, 1 Ves. and 5 Calmady v. Calmady, 2 Bea. 556, 7. Ves. Jun. 570. Mitford's Plead- b Cartwright v. Pulteney, ings, 110. 2Atk. 380. 1 Parker against Gerard, ' Agar v. Fairfax, 1? Ves. Ambl. 230. 552. Calmadj v. Calmady, * Cartwright v. Pulteney, 2 Ves. Jan. 570, 2 Atk. 380 ; and see Scott and VOL. I. O 4 200 EQUITY JURISDICTION. be to spoil them ; but some recompence is to be made, either by a Sum of Mori ^y, or Rent for owelty of Partition to those that have the houses of least value 11 . If, however, there be but one house, there may be a decree for the Partition of the same, thourrh highly inconvenient e ; and where exceptions were taken to the Report of Commissioners for the Partition of a House among Jointenants, one party complaining that she could not get to her division, except up stairs, which stairs were al- lotted to another Person, the Chancellor would not interfere f ; and where the Bill was for a Parti- tion of a Cold Bath, it was decreed ? . So it is if there be but one Mill or Advowson h to be divided ; but it is different where there are other Lands which may make up the share '. It is no objection to a Partition, that other per- sons may come in me and be entitled : otherwise, in every case, where there is a settled Estate with remainders to persons who may come in esse, there never could be a Partition 11 . An Infant Joint- ten ant may file a Bill for a Par- tition, or such a Bill may be filed against him 1 , and it will be decreed ; but the Conveyance will be respited till the Infant is of age m . A Bill for a Partition may be sustained on behalf of a Joint- d Clarendon v. Hornbv, 1 1 Dick. 09. Matthews v. Bishop P. \\ ms. 44(5. of Bath and Wells, 2 Dick. e Turner v. Morgan 11 Ves. 052. 143. and see 1 P. Wins. 447. ' Turner v. Morgan, 11 Ves. ' Anou. MS. 143. and see 1 P. Wms. 447. ; Warner against Baynes, k Wills v. Slade, Ves. 498. Ambl. 589. .*'. < . alluded to in ' Tuckheld against ''uller, Barker against Gerard, Ambl. Ambl. 197. S. C. 1 Dick. 240. 236. "' Lord ^irook v. Lord Hert- h As to Partitions of an Ad- ford, 2 P. Wins. 518. Ambl. vewson see Budicoute v. Steers, 197. S. C. 1 Dick. 240. PREVENTION OF FRAUD. 201 tenant of a Lease for years, nor in such case, is'the Reversioner a necessary Party m . And a Bill for a Partition of Tithes will lie"; but the Court has no Jurisdiction to grant a commission of Partition, between Tenants in common ofa Copyhold . Under a commission of Partition to four Com- missioners, and two different returns made, one, by two of the Commissioners, and another, by the remaining two, the Court cannot act; but will grant another commission directed to Jive Com- missioners p . In cases of this kind, the proper mode is to move to quash the returns q . With respect to Costs in cases of Partition it is said to have been determined, that where the Plaintiff was entitled to three or four hundred Acres, and the Defendant to four or five only ; andthough the Defendant would have rather given up his part than beat the expence ofa Partition. yet it was decreed, and to be at the equal expence of both parties'! This unreasonable doctrine seems not now adhered to : the Rule now, seems to be that, in cases of Partition, no costs are given until the Commission ; and that the costs of issu- ing, executing, and confirming the Commission are borne by the Parties, in proportion to the value of their respective Interests, and no costs allowed of the subsequent Proceedings 8 . "Baring v. Nash, 1 Ves. and S.C.MS, and see Corbett v. Bea. 551. Davenant, 2Bro. C. C. 252. n Baxter v. Knollvs, 1 Ves. q lb. 495. r Parker against Gerard. • Scott v. Fawcett, 1 Dick. Ambl. 237. 299. s Agar v. Fairfax, 17 Ves. p Watson v. Duke of Nor- 558, Calmady v. Calmady thumberland, 11 Ves. 153. 202 EQUITY JURISDICTION". Ij. Kills to establish a Modus. A Bill to establish a Modus, in the nature of ii Cross Bill, against a demand for Tithes; for a Person is not allowed to file a Bill to establish a Modus, unless he has been actual!}' disturbed by Pro- ceedings at Law, in Equity, or in the Ecclesiastical Court 1 . And the Bill must set out the Modus sought to be established, with certainty , or the Bill Mill be dismissed v „ It seems doubtful whether occupiers only, and not owners, can have a decree for establishing payments in lieu of Tythes w , there being only one case of that description x . A Lessee of a Rectory who has made a deriva- tive Lease may bring a Bill for Tythe in kind, and to establish a custom of setting out Corn in Stacks, and may make the person who is entitled to the Inheritance, a party, notwithstanding the Tythes themselves were out in Lease at the time for which the Account is prayed ; for otherwise it might introduce great inconveniences by a col- lusion between the Lessees and the occupiers y . 16. Bills to marshal Securities. It has been held, that if a Party has two Funds by which his Debt is secured, a Person hav-* ing an Interest in one Fund only has a right in 2 Ves. Jun. 5G8; and see v Ekins v* Dormer, 3Atk. Metcalf v. Beckwith, 2 P. 534. Wins. 377, 8. Baring v. Nash, w Yid. Warden, &c. of St. I Ves. and Bea. 554. Paul's v. Morris, 13 Ves. 1(>3. 1 Gordon v. Simpkiuson, * Canons of St. Paul's v. II Ves. 510. Lord Coventry v. Crickett, 2 Ves. Jun. 563. Burslem, 2 Anst* 507." n. y Hayterv, Stapilton, 2 Atk. 4 Cwill. Tvth. 15 ( J0. 130. rnEVENTION OF FRAUD. 203 Equity to compel the former to resort to the other fund, it' that is necessary for the satisfaction of both, [f therefore A. has two Mortgages, and B. has one, B. has a right to throw A, upon the Security which B. cannot touch'. So, where in Bankruptcy the Crown by Extent lays hold of all the Property, even against Cre- ditors, the Crown has been confined to such property as would leave the Securities of Incum- brancers effectual \ In a case where the Loyalist Estates in America, were, under the forfeiting Acts, to be sold for the payment of debts, this was held not to be a ground for an Injunction to restrain an Action here on a Bond \ But though, if two Funds of a Debtor arc liable to one Creditor, and only one Fund to ano- ther, the former shall be thrown upon that Fund, to which the other cannot resort, in order that he may avail himself of his only Security, -where that can be done without Injustice to the Debtor or the Creditor, yet that principle has never been pressed to the effect of Injustice to the common Debtor. Much less, have persons who are not common Creditors of the same Debtor, a right to compel the Creditors of both Funds to resort to the one, in order to leave a larger dividend for those who can claim against the other*. o Marshalling of Assets, are considered elsewhere. ■ Lanov v. Duke and Du- b Kempe against Antill, 2 chess of Atholl, 2 Atk. 44G; Bro. C. C. 11. see Aktrieh v. Cooper and c EJtpa'rte Kend.aH, 17 Vc~. •there, 8 Yes. 388. 395, &27. Mb. 204 EQUITY JURISDICTION. Having considered the Cases in which a Court of Equity interferes to prevent Fraud, we now proceed to the consideration of those cases, where Equity remedies Fraud which has been com- mitted. Judges have never ventured to lay down as a general proposition what constitutes Fraud 4 ; nor can any invariable Rule be established. Fraud is infinite, and were a Court of Equity to lay down Rules, how far they would go in extending relief against it, or to define strictly the species of Evi- dence of it, the Jurisdiction would be crampt and perpetually eluded by new schemes, which the fertility of Man's Invention would contrive 6 . All Frauds are cognizable in one or other of the Courts of Justice. Some are of such turpitude, that the Criminal Courts only have Jurisdiction over them ; for Courts of Equity do not affect to consider Fraud in the light of a Crime : It is not their province to punish f ; nor have they a cen- sorial Authority : they interfere in Cases of Fraud in a civil, and not a criminal point of view. The Court of Star Chamber not only gave the same Re- lief as Courts of Equity now do, in Cases of Fraud, but also punished the fraudulent Defendant ; and it was the ancient course of the Court of Chan- cery in cases of notorious Frauds, to decree a De- fendant to pay exemplary costs ; but that practice, d See Mortlock v. Buller, see what is said to the same 10 Ves. 300, 7. effect, in Lawley v. Hooper, e See Lord Hardwicke's 3 Atk. 278. Letter to Lord Kaimes, 1 vol. f See Walthain v. Broughton, Life of Lord Kaimes, 237 ; and 2 Atk. 43. FRAUD. 20.) owing to the difficulty of carrying it into Exe- cution, has long since been superseded. Fraud, has been defined tobe, any kind of Artifice by which another is deceived 6 ': all surprize, trick, cunning, dissembling, and other unfair way that is used to cheat any one, is to be considered as Fraud. Collusion in a Court of Equity is consi- dered as Fraud u . And it is worthy of remem- brance, that in all cases of Fraud, the remedy does not die with the Person ; but the same relief may be obtained against the Executor of the Person committing the Fraud': nor can the statute of Limitations be pleaded to a Bill for the discovery of a Fraud k , length of time forming no Bar 1 . "No length of time "as Lord Erskine has more than once emphatically observed," can prevent the unkennell- ing' of Fraud™." But this general proposition admits of some qualification; for where the Fraud is committed a considerable time back, the Bill ought to state that, it was discovered within six years before the Bill was filed"; or a waiver of the objection as to length of time should appear on * See Pothier Traite des S. C. in MS|. Bacon's Tract9, p. Obligations, Partie 1. chap. 1. 37. 1 Ves. Jun. lt>0, 328. and s. 1. Art. 3. s. 3. see Pickering v. LordStamford, h Garth v. Cotton, 3 Atkyns, 2 Ves. 280. 757. n Purcel and Macnamara, 'Garth and Cotton, 3 Atk. ]4 Ves. 91. Sooth Sea 757. and the decree to that Company v. WymondseH, effect, ib. p. 758. 3 P. Wnos. 243. see also * liicknell v. Gough, 3 Atk. Dough 030. and what is 558. said in Gilford and Hort, 'Pickering and Lord Stam- 1 vol. Scho. and Le Froy, Rep. ford, 2 Ves. Jun. 280. 400. and in Medlicott v. m MS. See also Cottrell v. O'Donncll, I Ml and Beatty, Purchase, Forester 00. and 160. 20O EQUITY JURISDICTION, the face of the proceeding °. Length of time always forms a strong objection where it can be used to shew acquiescence ; but in no other way. In* the case of a Steward keeping his Accounts in a frau- dulent manner, it has expressly been said, " there can be no period, however remote, through which the Court will not look for the purpose of setting such an Account right p ." But even in a case of gross fraud the Court •will not decree an Account after a considerable length of time, against Executors, Legatees and innocent Persons, claiming under the fraudulent party q . In all cases of Fraud which is not penal, a Court of Equity has a concurrent Jurisdiction, with Courts of Law r , with the exception as to Fraud in obtaining a Will, which, where it relates to Real Estate, is always referred to the consideration of a Court of Law, in the shape of an Issue devisavit vel non s ; and if of personal Estate, is exclusively decided upon in the Spiritual Court 1 , where Parties may be examined by way of allegation touching the Fraud v ; though it has often been lamented, that a Court of Equity cannot take cognizance of Fraud as to Wills of personal Estate w . Picket v. Loggon, 14 Ves. * Powis v. Andrews, 2 B:o n 244. P. C. 470. Bates v. Graves, * Earl of Hardwicke v. 2 Ves.jun. 208. Vernon, 14 Ves. 511. ' Keiriek v. Barnsby, 7 Bro. « Doleraine v. Browne, 3 P. C. 449. Toml. Edit; and Bro. ('. ('. 033 ; and see Hefty see Archer v. Mosse, 2 Vern. 8, v. Dinwoodv, 2 Ves. Jun. 02. v Stephenson v. Gavdener s r Colt v. Woolaston, 2 P. 2 P. Wins. 286. Wins. 136. Bright v. Evnon, * Ex parte Fearon. 5 Ves^ I Bur. 305. 4 Inst. 84, " C47. FRAUIi. 807 Every question concerning the Execution and validity of a Will under which any legal OX equi- table Estate in Land is claimed, is properly and only triable at Law ; nor do Courts of Equity establish a Will by which aTrust only is devised, without a Trial, if desired x . The Court will not, in any case, set aside a Will, without direct- ing an Issue y . If, therefore, a Bill be fded to set aside a Will for Fraud, and for a Receiver, the Defendant may plead that the Will was duly executed, aud that it ought to prevail, till upon an Issue at Law it should be found to be otherwise ; but the Plea cannot be extended to the Receiver, for the Court will not suffer its hands to be tied up, if in the progress of the Cause it should be necessary to appoint a Receiver'. But though a Will of personal Estate proved in the Spiritual Court, cannot, though obtained by Fraud, be controverted in Equity yet if a Party claiming under such a Will comes for any aid in Equity, it will not be granted him a . And in some cases, it seems, a Will, though good at Law, may be set aside in Equity for Fraud: as if A. should agree to give B. Bank Bills to the amount of*£lOUO, in consideration that B. should devise his Lands to A., and ac- cordingly B. does make such a Will, and//, gives Vid. what is said Are. ~ Anon. 3 Atk. 17. 7 vol. Bio. 1'. C. 449. Ed" ■ Kelson v. Oldtidd, 2 Vein. Toinl. 70. 3 Bates v. Graves, 2 Ves. jkya, \). 288. *^08 EQUITY JURISDICTION. B. the Bank Bills, but those Bank Bills prove to be forged, this though a good Will at Law, may nevertheless be avoided in Equity by the Testator's Heir, for the Fraud 1 '. Previous to the consideration of cases of Fraud, it is proper to advert to some Rules laid down upon the subject. 1. The Rule of Law as to Fraud, is considered as a good Rule in Equity, (viz.) that Fraud is never to be presumed ; but that may be a Fraud in Equity, which is not so at Law a . 2. If the Principal in a Fraud^ be released, Parties who would have been secondarily liable, cannot be proceeded against b . 3. A Deed cannot be set aside in pari for Fraud. If set aside at all, it must be, in toto c ; and if obtained by Fraud, it will be set aside in toto, though innocent Persons are interested under it d . Solemn Conveyances, Releases and Agree- ments made by Parties wiil not be set aside on slight grounds e ; but whenever Suppressio veri or Suggestio falsi occur, and more especially both together, they afford a sufficient ground for setting aside any Release or Conveyance f . b Goss v. Tracy, 1 P. Wins. e See Myddleton v. Lord 2S8. S. C. 2 V'ern. 700. Kenyon, 2 Ves. juri. 408. Law- a Trenchard v. Wanley, 2 P. ley v. Hooper, 3 Atk. 281. Wms. 160; and see Townshend d Davidsou v. Russell, v. Lowfield, 3 Atk. 536. Sed 2 Dick. 761. Worseley v. De Vid. Earl of Chesterfield v. Mattos, 1 Bur. 474. Huguenin .Tanson, 1 Atk. 351, 2. where and Baseley, 14 Ves. 273. it is said there may be pre- e 1 P. Wms. 727. 1 Atk. 10. sumptive fraud. 1 Ves. If). 2 Atk. 592. b Thompson against Harri- f See Jervis v.Duke, 1 Vern. son, 2 Bro.C. C. 164. 19. Broderick v. Broderick, FRAUD. If any Instrument is obtained from Persons ignorant of their Rights, but whose Rights are known to the Party obtaining the Instrument, a Court of Equity will relieve g . Courts have even gone farther, and have set aside Instruments obtained from Parties, ignorant of their Rights, although no Fraud or Imposition has been prac- tised \ An Agreement for a Lease, founded on a fraudulent statement, Vill be rescinded, and an account directed between the Parties'. If, indeed, a Man upon a Treaty for any Con- tract, makes a false representation, whether know- ingly, or not k , by means of which, he puts the Party bargaining, under a mistake upon the Terms of Bargain, it is a Fraud, and relievable in Equity '. If a Person, under the influence of mistake, builds on another person's ground, that person seeing the Building, and not interfering to put the party on his guard, such suppression of the truth, suppressio veri, is fraudulent, and a Court of Equity will give relief™. But there does not 1 P. Wms. 239. Cann v. Cann, 21 : and see Graves v. White, 2 P. Wms. 727. Bowles v. Freem. 57. Scou v. Scott, Stewart, 1 Sch. and I.efr. 209. mentioned arg. 3 Ves. 458. E Broderick and Broderick, l Nevide against Wilkinson, 1 P. Wms. 239. and the cases 1 Bro. C. C. 540. Evans v. referred to in the note. liicknell, Ves. 174, 183. " Evans against Lewellyn, Burroughs and Lock, 10 Ves. 2 Bro. C. C. 150. 475. De Mannnillev. Cromu- 1 Long v. Fletcher, 2 Fq. ton, 1 Ves. and Bea. 355*6. Abr. 5. ,l Pelling ,and Armitage, * Anslie v. Medlycot, 9 Vt '*. 12 Ves. 85; See also 2 Atk, VOL. I. P 210 EQUITY JURISDICTION. appear to be any Case, in which a Lessee either of a Term, or from year to year, making any im- provement upon the Estate in his Possession, though with the complete knowledge of the Land- lord, has been held entitled as against that Land- lord, to have his Lease prolonged until he shall obtain reimbursement for the Improvements he has made". If a Landlord, knowing the Tenant's Lease to be bad, stands by, and allows him to make im- provements on the faith of the supposed good- ness of his Lease, in such case, it seems, Equity would relieve". So, too, where A. being Tenant in Tail, re- mainder to his brother B. in tail, A. not knowing of the entail, makes a settlement on his wife for life for her jointure, without levying a fine, or suffering a recovery, which B. who knew of the entail engrosses, but does not mention any thing of the entail, because, as he confessed in his answer, if he had spoken any thing of it, his Bro- therly a recovery, might have cut off the re- mainder, and barred him ; although after the death of A., B. recovered in Ejectment against the Widow by force of the entail ; yet she was relieved in Chancery, and a perpetual Injunction granted, for this Fraud in B. in concealing the entail ; since, had it been disclosed, the settlement might have been made good by a recovery p . S2. East India Company v. ° Pelling and Armitage, Vincent; and seeDannv.Spur- 12 Ves. 85. rier, 7 Ves. 231. p 3 Bacon's Abr. 299. " 12 Ves. 85. ; but see 7 Ves. 231. FRAUD. 211 So, where one made his Will, and his Wife Executrix, and his Son afterwards prevailed on his Mother to get the Father to make a new Will, and to name him Executor, he promising to he a Trustee only for his Mother ; this was consi- dered a Fraud, and the Son held to be accounta- ble as a Trustee ''. So, too, there are various cases where a person standing by, and by silence contributing to a Fraud, has been compelled to remedy the mischief his fraudulent silence has occasioned'. Upon this ground it is, that a Landlord has been restrained from cutting ornamental trees in a Lawn during the Term, his conduct amounting to a consent to the Tenant's plan of Improvement, laying out the Lawn, &c. 8 If a Conveyance by Lease and Release, or Bar- gain and Sale, has been obtained by means, which in a Court of Equity have the character of Imposition, Fraud, Oppression, or undue Advan- tage, which, indeed, may all be comprehended under the general term, Fraud, a Fine, constituting part of that Conveyance which is so affected, whatever may be the effect at Law, is no bar to 'Thynev. Thyne, 1 Vern. Sale of Land and suppression 290 ; and see also other cases of articles, determined on the same prill- r See Hunsden v. Cheney, ciple, as Mead and Webb, 4 2 Vern. 150. the concealment Bro. P. C. 497. a case between of an entail, p. 150.^ Draper Lessor and Lessee as to a sup- and Borlan,2 Vern. 370. Com- pression of amount of Land cealment of an Incumbrance, demised. Kamsden and Hylton, Ihbotson and Rhodes, 2 Vern. 2 Ves. 304. Release held bad 554. Concealment of a Mort- on account of the suppression gage. of a Settlement. Beatriff and ' Jackson v. Cator, 5 Ve8. Smith, Eq. Ca. Abr. 357. 088. P 5 212 EQUITY JURISDICTION. relief in Equity. The Person deriving Title under it, is a Trustee; and the species of Relief is, by directing a Reconveyance 1 , [f a Contin- gent Remainder is destroyed by a legal conveyance. and that conveyance is obtained by Fraud, Equity will relieve against it". And so, where a Fine, followed by Non-claim, was levied by one who got possession under a forged deed, a Court of Equity decreed against the fine v . Letters Patent, if obtained by Fraud, may be set aside at the suit of the Attorney General w . Fraudulent Instruments may be proved to be such, by facts apparent on the face of the Instru- ment, as well as by extrinsic Evidence. The consi- deration of a Deed may be such as, of itself, to shew the Deed was fraudulently obtained. Allusion has already been made to the case of young Heirs and Reversioners, and in what manner inadequacy of consideration affects Contracts by them x . In regard to Persons not standing in those situations; mere Inadequacy of Price, unless it amount to what is termed, gross inadequacy, is not a ground for annulling an Agreement, though executory^ i. e. to be performed, if the same appears to have been fairly entered into, and understood by the 1 Pickett v. Loggon, 14 Ves. same case in MS. no such 234 ; see also Wilkinson v. doubt appears. Brayfield, 2 Vern. 307. Baker u Englefield v. Englefield, v. Pritchard, 2 Atk. 390. 1 Vern. 443, 44G. JSarnsley v. Powell, 1 Ves. v Cartwright v. Pulteney, 289. In Penne v. Peacock, 2 Atk. 381. lor. 42. it was doubted how far w Attorney Gen. v. Vernon, fraud could aflect so solemn 1 Vern. 277,370. S. C. 2 Ch, au act as a Fine ; but in the Reports, 353. * A^ite, p. 97. &c. FRAUD. 21.'i parties, and capable of being specifically perform- ed: still less, does such inadequacy form a ground for rescinding an Agreement executed, i. e. actu- ally performed. Lord Chief Baron Eyre, ob- served, (and in this he has been followed by succeeding Judges,) that, " there was no case ■where mere Inadequacy of Price, independent of other circumstances, had been held sufficient to set aside a Transaction x ." A bargain may be hard and unconscionable, and yet valid, unless the Inadequacy of Price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of Fraud in the Transac- tion^. Whenever an agreement is so extremely in- adequate as to satisfy the conscience of the Court, by the amount of the inadequacy, that there must have been imposition, or that species of pressure upon distress, which in the view of a Court of Equity amounts to oppression, the Court will give relief*. An Annuity cannot, generally speaking, be set aside for Inadequacy of Price a ; but x See Griffith v. Spratby, and Barchard, 8 Vcs. 137 ; 2 Bro. 180. in ii. and so Moth and see 10 Ves. 31*3. and v. Atwood, 5 Ves. 845. and 14 Ves. 240. and what is said what is said by Lord Erskine by the Master of the Rolls in in Lowther v. Lowther, 13 Ves. Burroughs v. Lock, 10 Ves. 103. 474. y See Clarkson v. Hanwav, 2 Underbill and Horwood, 2 P. Wms. 203. Coles and Tr'e- 10 Vcs. 219. and so is Ueath- cothiek, 9 Ves. '240 ; and see cote and Paignou, 2 Bro. C. Gibson v. Jeyes, G Ves. 273. C. 107. Peacock v. Evan*, Crowe v. Ballard, 1 Ves. Jun. 10 Ves. 517. 219. Heathcote and Paignon, a Plover against Sherrard, 2 Bro. C C. 107 ; and see How Ambl. 18, Speed and Phillip*, v. Wilder 2 Ves. 510. Low 3 Anst. 752. 214 EQUITY JURISDICTION. if the price be grossly inadequate, it may be set aside 1 '. What shall be termed gross inadequacy , has not been defined, unless the saying, " what shocks the conscience," be a definition ; but where a Sale, was for one half of the worth, that, it has been said, would be relieved against . The doctrine of the Scotch Law as to facile Men does not apply, in its full extent, in England ; but wherever a person taking advantage of the neces- sities of another, practices extortion, a Court of Equity will decree the Party to refund, and without enquiring into the particular circum- stances of the Imposition d . Lord Eldon, however, has on this subject put a very strong case. " Suppose," says he, " that A. B. had said, ' Make out your Title as Heirs, 1 will give no Information or Assistance ; but if without doing so, you will take e£lQOO, I will give that sum:' considering the passages that are to be met with in the Judgments of this Court, though a valuable Property had been acquired, to which that sum was very inadequate, I will not say whether such a case would have been reached by the Doctrine of this Court, protecting, upon public principles, persons in distress e .' J If a Eargain which was fair at the time, becomes, by subsequent events, very advantageous, the b Heathcote and Paignon, a Thornhill v. Evans, 2 Atk. 2 Bro. C. C. 167. Lawley v. 330. Hooper, 3 Atk. 278. Under- e See Pickett v. Loggan, hill v. Horwood, 10 Ves. 219. 14 Ves. 240 : and see on this c Maskeen v. Cote, T. T. subject, Ardglasse v. Mus- 8 Geo. 2. 1733. MS, champ, 1 Vern. 237, 239. Proof v. Hines, Forrester 111. FKAUD. 215 Vendor cannot make any claim in a Court of Equity on the ground of inadequacy of Price*. If, for instance, a Man should contract to Sell an Estate for a Life Annuity, und the contract is signed, and the Party to have the Annuity di< s before the end of the first half year, the Court would still execute the contract *. So, if a Deed be entered into by Parties ap- prized of their rights, in order to put an end to a Suit, although upon inadequate consideration, it cannot be set aside ''. In some few instances, as in Post Obits ', Sales of Reversions k , and Sales by Auction 1 , even gross inadequacy would not, it seems, form a ground of relief. Nor does the Court ever give relief against Marriage Contracts for Settlements, Jointures, or other Provisions, though they may be very unequal, and in favour of the Wife, because it cannot set the Wife in statu quo, or unmarry the Parties, as was said in Wichcrley v. Wicherley, where the Remainder-man brought a Bill to be relieved against a Jointure made by the Tenant for Life, even upon his death-bed, in considera- tion of aud previous to his Marriage, by virtue of ' See Batty and Lloyd, Visct. Bateman, 1 Bro. C. C. 1 Venn 141. and Gowland and 22. De Faria, 17 Ves. 25. * See Wharton and May, ■ See 3 Bro.'C. C. G05. and 5 Ves. 27. Lord Eldon adopts this casein k Nichols v. Gould, 2 Ves. Coles and Trecothick, 9 Ves. 422. 240. Muctimer and Capper, ' White v. Damon, 7 Ves. 1 Bro. 35. * Stephens against Lord 216 EQUITY JURISDICTION. a power, reserved to him ; but relief was denied" 1 . In all these cases it must be remembered, that if a Contract, voidable for inadequacy of consi- deration, is confirmed by the Party, with his Eyes open, it will not be relieved against n . Whatever previous determinations there may formerly have been to the contrary , it is now fully settled, upon the Statute 27 Eliz. c. 4. a Statute passed to prevent Frauds on Purchasers, that a voluntary Settlement, however free from actual Fraud, is, by the operation of that Statute, deemed fraudulent, and void, against a subsequent Purchaser for a valuable consideration, even where the Purchase has been made, with notice of the prior voluntary Settlement. The Statute receives the same construction, and produces the same effect both in Law, and Equity; and a Purchaser of an Equitable Estate for a valuable consideration, though with notice, is no more affected by a voluntary Settlement, than the Purchaser of a legal Estate p . " I hardly know an Instance," says Lord Hard- wicfee, " where a voluntary conveyance has not been held fraudulent against a subsequent Pur- chaser q ." And where a Power is executed under m North v. Ansell, 2 P. Otley v. Manning, 9 East. 59. Wms. 619. Hill v. Bishop of Exeter, n Maskeen v. Cote, Trin. T. 2 Taunt. 09. Evelyn v. Teni- 8 Geo. 2. 1733. MSS. plar, 2 Bro. C. C. 148. said to ° See White v. Stringer, be incorrectly reported, 18 Ves. 2 Lev. 105. 91. and see Ambl. 288. 1 Eq. p Buckle v. Mitchel', 18 Ves. Abr. 334. 110. Pulvertoft v. Pulvertoft, " White v. Sansom, 3 Atk. 18 Ves. 90. Mitcalfe v. Pul- 412. Sed Vid. Jennings v. ▼ertoft, 1 Ves. and Bea. 183,4. Sellick, 1 Vern. 407. FRAUD. 217 a voluntary settlement, and that Power is after- wards executed for a valuable consideration, the Purchaser will have the benefit of it 1 ; but if a Pur- chase has been made, at an undervalue, it would not, perhaps, invalidate the previous voluntary settlement s . If a Man makes a voluntary Conveyance of Land, and the Alienee sells the same for a valuable consideration, the Land is bound '. It is observable, that where a voluntary con- veyance is afterwards defeated by a Sale for valu- able consideration, there is no instance, of a satisfaction being decreed against the maker of the voluntary Conveyance, or his Estate, unless, where there has been some covenant, on which an Action, or Suit might be maintained v . Every voluntary conveyance of a Man, for his own benefit, is fraudulent against Creditors w ; but every voluntary conveyance is not fraudulent x . A voluntary Conveyance of real Estate, or a Chat- tel Interest, in favor of a Child, by one, not in- debted at the time, though he afterwards becomes indebted, is good, as against Creditors, though not against Purchasers >', provided there be no parti- cular evidence, or badge of Fraud, (a power of revocation, for instance 2 , or retention of pos- session a .) r Hart v. Middlehurst, 3 Atk. x Sagittary v. Hyde, 2 Vera. s See 1 Ves. and Bea. 183,4. 44. * Sagittary v. Hyde, 2 Vern. y See Russell v. Hammond, 44. S. C. M\ Rogers v. Lang- 1 Atk. 15,lu. ham, 1 Sed. 133. * Peacock and Monk, 1 Ves. v Williamson v. Codrington, 132. 1 Ves. 51(5. ■ Bates v. Graves, 2 Ves. w Fitzer v. Fitzer, 2 Atk. 292. and see Stileman v. Ash- »13. down, 2 Atk. 481; and Lord Banbury's Case, 2 Freem. 8, 218 EQUITY JURISDICTION. If one voluntarily settles his Estate, with a power of revocation, with the consent of J. S. who is his own Relation, or one that may be supposed to be at his command, it is fraudulent within the Statute ; but if it be with the consent of others, who cannot be supposed to consent but upon very good grounds, it is not fraudulent within the Statute b . If a Father takes back an Annuity to the value of the Estate comprized in the Settlement, it is considered as tantamount to a continuance in possession, and Creditors will be relieved against such settlement. So, if a Bond or Mortgage, or Conveyance of an Estate is made, to himself and his Wife, making her joint purchaser, obligee, or grantee, so as to entitle her to the survivorship if he dies in her life, yet that is considered as a mere voluntary act with respect to Creditors, and fraudulent, although as between the Wife, and the Heir or Executor, it would prevail c . But if one indebted at ike lime^ makes a mere voluntary conveyance to a Child, and dies in- debted, it is still considered as part of his Estate for the benefit of his Creditors : a Man indebted, conveying voluntarily, being always looked upon as meaning a Fraud on his Credi- tors e . If a Settlement be made after Marriage, in ' Lord Banbury's Case, e Lord Townshend v. Wynd- 2Freern. 8. bam, 2 Ves. 10, 11; and see c Underwood v. Hitbcox, 1 Atk. 15. and 94. Taylor v. 1 Ves. 280. Jones, 2 Atk. 600. FRAUD. '2l ( J pursuance of a'Bond f , or other Agreement before Marriage B ; upon payment of Money as a Por- tton h ; or a new additional sum of Money; or even upon an Agreement to pay Money, (provided the Money be afterwards paid ;) this makes the Set- tlement good and valuable both at Law and Equity, against Creditors, as well as Purchasers', provided there be no Fraud, nor vast inadequacy k , for some inadequacy is unimportant '. A Person before Marriage, may settle all his Property upon his intended Wife, even his move- able effects, and the fact of his being indebted at the time, and of her knowing him to be so, will not, even against Creditors, invalidate the Transaction : nor is it necessary that the Hus- band should receive a Portion with his Wife m ; for the consideration of Marriage protects the Set- tlement n . And }i Real Estate form part of the Settlement, and after the Marriage, the Husband build on the Land, or enfranchise Copyholds in- cluded in the Settlement, yet the Creditors can- not have the benefit of these Acts by way of charge against the Wife . So, if a Bond is given on Marriage and receipt f Jason v. Jervis, 1 Vern. 1 Ves. and Bea. 112. Prec. Ch. 286. 101,405. B Hylton v. Biscoe, 2 Ves. k Ward v.Shallet, 1 Ves. 18. 308. l See Jones v. Marsh, For. h Stileman v.Ashdown,2 Atk. 05. S. C. MS. 479. Jones and Marsh, For. 63. - Browne v. Jones, 1 Atk. S. C. MS. Wheeler against 190. Caryl, Ambl. 121 ; and see " Nairn v. Prowse, 6 Ves. Hilton v. Biscoe, 2 Ves. 308. 759. Wheeler against Caryl, •Browne v. Jones, 1 Atk. Ambl. 121. 190. see also ex parte Hall, ° Campion v. Cotton, 17 Ves. 271. 220 EQUITY JURISDICTION. ofa Portion, conditioned to pay a Sum, beyond the Marriage Portion, in case of death or insol- vency, such Bond is good, so far as relates to the Property received with the Wife, but beyond that, is fraudulent as against Creditors ; for no bounds could be set to such agreements: if a Trader could make a provision of that sort to the amount of a£l000, he might do so to the amount of ££100,000, and take all his property out of the hands of his Creditors °. But if a Settlement be made after Marriage, (a Marriage in Scotland is sufficient p ,) such Set- tlement, unless it contains a Provision for Debts q , or is in pursuance of articles before Marriage r , is fraudulent s against such persons as were Creditors at the time the Settlement was made 1 ; unless it be a single debt", or unless the debt be secured by Mortgage, in which case it would not affect the Settlement w ; for to do that, it seems , the Party must have been insolvent at the time ; but it is observable, that if (with the exceptions alluded to,) there be Creditors at the time of such Settle- ment, and the Settlement is on that account declared fraudulent,, the property so settled, be- comes part of the Assets, and all subsequent Cre- Ex parte Meaghan, 1 Sell. 8 See Watts v. Thomas, 2 P. and Left. 179. and Ex parte Wins. 304. Murphy, lb. p. 44. overruling l Kidney v. Coussmaker, what is said by Lord Kenyon 12 Ves. 155. see Middlecombe in Staines v. Plank, 8 T. R. v. Marlow, 2 Atk. 520. and 369. White v. Sansom, 3 Atk. 413. p Ex parte Hall, 18 Ves. 112. v Lush v. Wilkinson, 5 Ves. « George v. Milbanke, 9 Ves. 387. 104. w Stephens against Olive, r Beaumont v. Thorpe, 2 Bro. C. C. 30. 1 Ves. 27. FRAUD. 221 ditors are let in to partake of it x ; and in ont case, a subsequent Creditor filed, what is called, a faking Bill, in order to prove debts antecedent to the Settlement", and thus establish a fund for the payment of his own debt. By the Common Law, fraudulent Gifts or Conveyances were avoidable by Persons who were Creditors at the time such Gift or Convey- ance was made ; but such Gifts or Conveyances were not avoidable by persons who became Cre- ditors, subsequent to the making of them z . And though a voluntary Deed, a Bond for in- stance, is void against Creditors, yet if arrears have accrued under such Bond, these will form a valuable consideration ; and if a new Bond, or the assignment of a Lease, is given for such arrears, the Deed may be sustained against Credi- tors '. So, to those cases, where Property belonging to the wife, in Trustee's hands, is sought by the Husband, by a Bill in Equity, and the Court di- rects a Settlement, such Settlement will be good against Creditors b . A Widow, it has been holden, may, previous to a second Marriage, make a Settlement in favour x See Taylor v. Jones, 2 Atk. that case in Kidney v. Couss- COO ; and see what is said of maker, 12 Ves. 155. that in Dundas v. Duten9, ' Twine's Case, 3 Co. 83. a. 1 Ves. Jun. 198. Arg. Moun- Upton and Bassett, Cro. Eliz. tague and Lord Sandwich, 444. Dyer, 294,5. mentioned in note to 12 Ves. ■ Cilham v. Locke, 9 Ves. p. 15t». See also Walker v. Bur- C12. Stiles v. Attorney Gene- roughs, 1 Atk. 93. ral, 2 Atk. 152. y Lush v. Wilkinson, 5 Ves. b Wheeler against Caryl, 384; and see what is said of Ambl. 121. 22'2 EQUITY JURISDICTION. of the children of the first Marriage, and of the se- cond Marriage; and the same will not be consider- ed a voluntary Settlement, or fraudulent and void as against subsequent Creditors and Purchasers . if There are dicta, that a settlement after Mar- riage, reciting a parol Agreement before Mar- riage, is not fraudulent against Creditors, provid- ed the parol Agreement had actual existence ; but, it does not appear, that the point has been di- rectly decided. It was discussed in Dundas and DuTens d ; but Lord Thurlow, though inclined that it should stand good, said, it was a mere matter of curiosity, if the first point was against the plaintiff, as it was. A case in Levinz e is there referred to ; a Dictum, not a Decision, that the Settlement was void ; for though a parol pro- mise before Marriage was proved, and a Settle- ment made after the Marriage, yet it was not made with such a correspondence to the parol promise, as to appear to have been made in execution of it ; and therefore it was held that the Court could not connect them, but the Settlement must stand upon its own footing, as a mere Settlement after Marriage f . A voluntary Settlement binds the Party making- it, nor can he alter it, how much soever he may be inclined to do so, unless there be a power of revocation s . " He must lie down under his own e Newstead v. Searles, 1 { Randal v. Morgan, 12 Ves. Atk. 264. 74. d 1 Ves. jun. 172. ovei-ruling « Child v. Danbridge, 2 Feize v. RandanS 2Yern. fFitstcriifld arid Jan*9en,2^ es. H02 ; but see Cecil and Plais- J50. Sadler and Jackson, Ex- tow, i Anstr. 202; andrawcett parte, 15 Ves. p. 52. and see 3 and Gee, 3 Anstr. Q10. Ves* 45G. Eastabrooke v. Scott. u 1 Bro. Civil Law. 79, *'" ', but his decree was reversed in t\i& House of Lords': and it is now clearly Settled, that Equity WJW relieve against Bonds given tor the procuring of a Marriage"; and not only decree such Bonds to be delivered up, but also a sum paid to be re- funded x ; they being introductire of infinite jmis- chirl-: and as relief in these cases is given on grounds of public convenience, such Bonds do not admit of confirmation, though, perhaps, (a sort of confirmation) the remedy of the Party may be released 7 . The Court on these occasions docs not interpose in respect of the particular damage to the Party; but from a public consideration, Marriage greatly concerning the Public . Such Bonds tend to introduce improvident Marriages. and every contract relating to Marriage ought to be free and open*': and on this ground it- is that though the match be a proper one, yet the Court sets the Bond aside. If it were not for the in- gredient of public policy, the Court, would not set such Bonds aside at the instance of the. ob- ligor, who is particeps crimirds ; and where the ob- ligor has sought relief, costs have not been given 6 . Another sort of Underhand Agreementis, where v Potter v. Keen or Hall, » 3 P. Wins. 394. Cas. Pari. 70. noticed 3 P. * Shirty v. Martin, men* \N ins. 70. and 302. tioned in note 1, tu Roberts w Drury v. Hook, 1 Vein, and Roberts, 3 P. Wins. 71. 412. Arundel v. Tievilieu, ' i .. v and Law, For. 142. 1 Ch. Ren. 47. Hall v. Porter, S. (\ MS. Debcnhaiu v. Ox, 1 3 lev. 411. sho. P. C. 7o. Ves.277. Cole v. Gibson, 1 (ilanville v. Penning, 3 Ch; Yes. 500, liep. 18 Toth. 27. Cole and - Roberts v. Roberts, 3 P. Gibson, 1 Yes. 507. Smith v. Wms. 70. Debenham v. Ox, Eykwell, 8 Atk. 668. 1 Ves. 277. x Suiirii v. Brumn« r , 2 Yens. ! 1 \ es. '277. 392. Q2 2'2S EQUITY JURISDICTION - . a Man sells his Interest to procure another an office of trust or service under the Crown ; it is a contract of turpitude and cognizable by the Jurisdiction of Equity' 1 : as where money was advanced for procuring a commission in the Marines, and the Purchaser was discovered to have worn a livery, he was discarded, and it was held that he was entitled to a decree for the Money paid, and to be refunded with Interest. " If," says the Lord Keeper Henley, " there is no Precedent of such a determination, I have no scruples to make one, and shall glory in it*." Fraudulent alienations by Executors will be re- lieved against. Executors are, in Equity, mere Trustees for the performance of the Will, but in many respects, and for many purposes, third persons are entitled to consider them as complete owners f . The absolute power they possess over the Property of their Testator, is very large, both at Law and in Equity, and it is considered neces- sary, the better to enable them to execute their Trust, and prevent the general inconvenience of entangling third persons in inquiries, as to the application the Executors may propose to make of the Money produced by the conversion of the Assets f >; nor is it of any consequence, with refe- d "Whittingham v. Burgoyne, e See Humble and Bill, 3 Anstr. 900. 2 Yern. 440. the doctrine of e Morris v. M'Culloek, which case appears to have Ambl. 4152; and see Law v. been followed, though the Law, For. 140. Haningtoi) and decree was reversed in the Du Chatel, 1 Bro. C. C. 124. House of Lords, 1 Bro. P. C. and see the late Act, 41) Ceo. 71. Nugent v. Ci fiord, 1 Atk. 3. c. 12G. 40;J, 4. S. C. 2 Yes. 209. Elliot f 7 Yes. ICG. Hill and Simp- v. Merriman, 2 Atk. 42. Mead son; and see Taylor l. Haw- and Lord Orrery, 1} Atk.. "2J7. kins, S Yes. 209. FRAUD. 220 rcnce to the power of Executors, whether the personal Estate is bequeathed on a Trust or not. But if a person dealing with an Executor, is aware that the Executor is misapplying the Testator's Property, a Court of Equity will m some cases, (it must be a very strong case '',) interfere on behalf of Persons beneficially entitled under the Testator's Will'. If, for instance, one con- certs with an Executor, by obtaining the Tes- tator's effects at a nominal price, or at a fraudulent under-valuc, or by applying the real value to the purchase of other subjects for his own behoof, or in extinguishing the private debt of the Executor k , or in any other manner contrary to the duty of the office of Executor, such concert will involve such fraudulent Purchaser, and render him liable for the full value l . And it has been said, that even if there has been only gross negligence in the Purchaser, though not direct Eraud, Legatees may set aside the Purchase"'. If an Executor should release a debt of j£100, for one shilling, that would not bind a Creditor ; but in case there is no other Creditor except the Executor himself, it would Peacock v. Monk, 1 Ves. 131. against M'Aulay, 3 Bro. C. C. Brickley v. Donnington, 2 Eq. 020. Utterson v. Maire, 4 Bro. Abr. 253. Franklin v. Ferae, C. C. 270. S. C. 2 Ves. Jun. Barn. 32. 95. Doran v. Simpson, 4 Ves. h Crane v. Drake, 2 Vern. 005. 21G. Ewer v. Corbet, 2 P. k As in Scott v. Tyler, 2 "Wins. 148. Jacotnb v. Har- Dick. 725. wood, 2 Ves. 208. Dickenson ' See M'Leod and Drum- v. Lockver, 4 Ves. 42,3. mond, 17 Ves. 1(37. ' See Franklyn v. Feme, m Scott v. Tyler, 2 Dick. Barn. 30, 33. Newland v. 725. Hill and Simpson, 7 Ves. Champion, 1 Ves. 105. Ehnslie 152. 230 TQVITY- JCTUSDICTICN, bind hitn \ If an Administrator grants a Lease to- a; Person who has notice that a sale of the Pre- Hjjsgs was required by the Parties beneficially interested, it will be set aside . Residuary or general Legatees, and, as it seem?, Co-Execfltors. »yare never permitted, in any case, to question the disposition which the Executors have made of the Assets ; but Creditors, specific and pecuniary Legatees, may follow either legal or Jlquitahle Assets, into the hands of third persons to whom fraud is imputable. Why a Residuary Legatee should not, in such cases of Fraud, be allowed to follow the Assets, is not very obvious *. Though a transaction with an Executor or Ad- ministrator be suspicious, yet if there has been long possession by the Purchaser, or the Person under.whom he takes, tlfe Court will not relieve". Fraudulent Agreements on a Marriage, are re- lieved against, in. Equity: as where one affects to put the Party contracting for Marriage in one situation by the Articles, and puts that Party in another, and a worse situation, by a private Agree- ment. If a Fortune paid, is in part privately received back ; or a Bond of Indemnity is given a ; Underhand Agreements of this description are always set aside ; for that which is the open and. n Skr. diet. Noel v. Robinson, r Andrew against Wrigley, } Vern. 455. 4 Bro. C. C. 125. DroUu v. Drohan, 1 Ball a Palmer v. Neve, 11 Ves. and TV-arty, 185. 107 ; and see Chesterfield and S M'Leod and Drummond, Janscn, 2 Ves. 156. 14 Ves. 1353, and S. C. 17 Ves. b See Redman v. Redman, |72. 1 Vern. 248. quot. 2 vol Blac, * So*: what Lord F.ldon* says Com, 309, in M'Leod a:id Drummond, \'$ Ves. 169, 170. FBAUO. S3| public treaty and agreement upon Marriage mur not be lessened, or any ways infringed by any- private Treaty or Agreement . Where, therefore, a Son, on his Marriage, was to have £:i()00 Portion with his Wile, and private! v, without notice to his Parents (Father or Mother.) that treated tor the Marriage, gave a Bond to the Wife's Father to pay back .€1000 of the Portion seven years afterwards; this Bond was held void in a Court of Equity ; and not made effectual, by being assigned to Creditors' 1 . So, where a Father on the marriage of his Son, gave a Bond for £ I JO per Annum, the private agreement of Husband and Wife being that he should only be called upon for ^100 per Annum, the Bond being given to deceive the uncle of the Lady, it was held that the Father could not file a Bill to have this Bond delivered up, though the Uncle made no Settlement on his Niece e . So, if a Father takes a Bond from a Daughter entitled to a Fortune, unknown to her Husband, it is considered tobem the nature of a marriage Brocage Bond, and will be ordered to be delivered up f . Upon the same Principle, not only Bonds, but a Lease granted by a Tenant in Tail, in consi- deration of procuring a match, has been set aside at the Suit of a Remainder-man*.. A Bond by a young Woman secretly given to c Lanilee v.IIannam,2 Vera. e Pitcuirn v. Oybourne, 2 499. Ves. 370. 1 Turton v, Benson, 1 P. ! Anon. 2 Eq. Abr. 1ST. Wow. 490. ■ StribblehiU v. Brett, 2 Yern. 440. . 232 EQUITY JURISDICTION. a Man conditioned to pay him a sum of Money, if she did not marry him within a certain period after the death of her Father, he giving a Bond to the same effect on his part to marry her, has been set aside, and principally on the ground that it was a Fraud on the Parent, who was ig- norant of the Bond and disapproved of the mar- riage. The fraud consists in this ; that the Father thinks his child has submitted to his opinion of the match, and in that opinion, makes a provision for her to advance her in marriage, which had he known of the Bond he would not have done, or might have done in such a manner as would have prevented the marriage: it is therefore in fraud of the Father's right of disposing of his Fortune among his children according to their deserts h . In these cases where part of the marriage Por- tion is agreed to be returned, there is no Fraud be- tween the contracting Parties, but on the Parents or Friends of one of them, who are deceived by settling Lands, equal to the Portion that appears to be given, and for that reason such Bonds are set aside'. Where, however, A. treated for the Marriage of his Son, and in his settlement on the Son, there was a power reserved to the Father to join- ture any Wife whom he should marry, in ^£200 per Annum, paying .§£1000 to the Son, and af- terwards, the Father treating about marrying a second Wife, the Son agrees with the second Wife's Relations to release the ^£1000, and does * Woodhouse v. Shipley, subject Cock v. Richards, 10 2 Atk. 535. and see on this Ves. 429. S. C. MS. ' lb. 539. FRAUD. 233 release it, but takes a private Bond from the Father for the payment of this £\0()0, the Chan- cellor would not set aside the Bond, because it would be injurious to the first marriage, which being prior in time, was to be preferred k . In Marriage Contracts, the happiness of the Parents and Children are so much at stake, that it has been held, that whoever treats fraudulently on such an occasion, shall not only not gain, but even lose by it. As where upon a treaty for a marriage ', the Woman not having so great a por- tion as the Man insisted upon, prevailed upon her brother to let her have ^160 to make up her por- tion, and gave him a Bond for the repayment of it. The marriage was had; and the Husband who knew nothing of the Bond, died without Issue. The Wife survived, and after her death, and the death of the brother, the Defendant, his Executor, put the Bond in suit against the Plain- tiff, her Executor : but the Bond was set aside. A quoery is put by the Reporter, if the condition of the Bond had been, that in case the Wo- man survived her Husband she should pay it, whether she could have been relieved ; but Lord Thurlow ra thought this would have made no difference. In a Case where a Widow on the Marriage of her Son, agreed to release her jointure, that he might make a Settlement, and the Son privately k Roberts v. Roberts, 3 P. 1 Bro. C. C.54G; and see what "Wms. 66. is said in Wilmot against 1 See Gale v. Lindo, 1 Vern. Woodhonse, 4 Bro. C. C. 230. 475. S. C. cited by Lord Chan. m See Neville v. Wilkiuson, in Neville ajid " Wilkinson, 1 Bro. C. C. 546. £31 EQUITY JURISDICTION. agreed to assign a Leasehold Estate to his mother, the Agreement of the Son was set aside as Frau- dulent". Awards, if fraudulently obtained, may be set aside in Equity °; and this, though the Award be made a Rule of a Court of Law, under the 9th Wm. 3. c. 15 p ; but, in one case, Lord Hardwicke seems to have entertained doubts' 1 . When Parties of age, (for an Award does not bind an Infant',) have submitted to make the submission to the Award a Rule of Court, it is a contempt of Court to dispute the order, unless partiality, corruption, or misbehaviour in the Arbi- trators can be shewn; and this depends upon the denial in the Answer of the facts charged, and if that is sufficiently done, a plea of the Award will be sufficient'; but still, if upon the hearing* of the Cause, the Evidence should be strong enough to convince the Court that the Arbitrators have been guilty of corruption, partiality, or mis- behaviour, itwill effectually open the plea 1 . Insurances fraudulently obtained, may be set aside; as where a Merchant had a doubtful x\c- countofa Ship, and insured his Ship without acquainting the Insurers what danger the Ship was in, it was held to be a Fraud, and the Policy "Lamkv. Hannam,2 Vern. p Lord Lonsdale v. Littledale, 465,499. 2 Ves. Jim. 451. ° 1 Vern. 157. Harris v. q Hampshire v. Young, Mitchell, 2 Vern. 485. Burton 2 Atk. 155. v. Knight, 2 Vern. 514. Tit- * 1 Ch. Cas. 279. tenson v. Peat, 3 Atk. 529. s Mitford's Pleadings, 209. Chicot v. Lequesne, 2 Ves. * Lingoodv.Croucher,2Atk. 315. Champion against Win- 396. and S. C. p. 506. ham, Ambl. 245. TRAVD. 23. J was ordered to be delivered up with Costs, but the Premium to be paid back and allowed out oi the Costs v . So, a Policy of Insurance for insuring a Life, gained by Fraud, has been set aside with Costs, both at Law and in Equity, and the Premium received on the Policy directed to go in part of Costs w . Other Frauds on Marriage besides those already noticed, are redressed in Equity. A Woman, while unmarried, may dispose of and convey her pro- perty in any manner she pleases ; and a Husband whom she afterwards marries, without any Settle- ment made by him, or any inquiry concern- ing her fortune, cannot impeach a conveyance, which she has made of her property for her own separate use ; provided the conveyance was not attended with such circumstances as prove the same to be fraudulent". So, if a Feme Sole, with the privity of her in- tended Husband conveys, before Marriage, a term for years in trust for herself, it is out of her Hus- band's power ; but if a Feme does secretly, on the eve of Marriage, without the knowledge of her Hus- band, convey a Term for years in Trust for herself, this does not exclude the Husband's right >'. But though, if a Woman previously to Marriage con- veys her Property without the privity of the T De Costa v. Scandret, 2 P. House of Lords, 6 Bro. P. C. Wins. 170. 430. Toml. Edit. S. C. 2 Bro. " Whittingham v. Thorn- G. C !345. burgh, 2 Vera. 206. S. C. Prec. * Draper's Case. 2 Freem. Ch. 20. 29,30. Pitt v. Hunt, 1 Vera, * See Bowes v. Strathmore, IS, S, C. 2 Ch. Cai. 73. 235 EQUITY JURISDICTION. intended Husband, it will be considered as a fraud ■; yet where the Deed had been made in contemplation of a Marriage with another Person, and with the consent of that person, it was held to be unimpeachable \ And where a Widow previous to the second Marriage, and to the Treaty for the same, made a suitable provision for the Issue by her first Hus- band, this was held to be valid b ; but a power reserved to herself to dispose of the remainder of a Term settled on herself and Child, after the decease of herself and child, was determined to be void c . Bonds, to be paid if the obligor should marry such a Man d ; or being a Widow, if she should marry again 6 , have been ordered to be delivered up to be cancelled as being contrary to the nature and design of Marriage, which ought to proceed from free choice, and not from any compulsion. If a verdict has been obtained by Fraud, a Court of Equity will give relief f . So, if a Judgment at Law be obtained against conscience, a Court of Equity will decree the 1 Cotton v. King, 2 P. Wms. b Cotton v. King, 3 P. Wms. 360. Poulson v. Wellington, 357,674. Hunt v. Matthews, 2 P. Wms. 535. Carleton v. 1 Vera. 408. Earl of Dorset, 2 Vera. 17. c Blithe' s Case, 2 Freem. 1 Strathmore v. Bowes, 2 Bro. 91 ,2. C. C. 345. Decree affirmed in d Key v. Bradshaw, 2 Vern. the House of Lords, 3d March 102. 1789. S. C. 1 Ves. Jun. 28. c Baker v. White, 2 Vern. contra. Edmonds against Don- 215. nington mentioned in Carle- f Batemanv. Willoe, 1 Sch. ton v. Earl of Dorset, 2 Vern. and Lefr. p. 205. 17. rp.AUD. 237 Party to acknowledge satisfaction on that Judg- ment, though he has received nothing*. A Decree obtained by Fraud, may be set aside not by rehearing or appeal 1 *, but upon an original Bill in the nature of a Hill of Review'. It is said, indeed, that a Decree, or Interlocutory order, obtained by Fraud, may be set aside on Petition k . An Order in Lunacy may be set aside by Bill, if obtained by Fraud 1 . So, if Probate be obtained of a Will procured by Fraud, the Court will oblige the Party so obtaining Probate, to consent to a revocation of the same 01 . The Purchase of an Estate in the West India; by a Creditor, under his own execution, and which under the circumstances appeared to be a sham Sale and without competition, and contrived with a view to get the Estate at an under-value, has been set aside*; but unless Fraud is proved, a Judicial Sale, had under the Process and Judg- ment of a Court having a competent Jurisdiction cannot beset aside b . In a case where a decree that a Will was well proved, had been obtained by consent, which afterwards, in another Suit in the Court of Chan- z Barnsk'v v. Powell, 1 Ves. k Sheldon v. Fort< 289. See diet. Mitchell v. Hap- Aland, 3 P. Wins, 111. ris, 2 Ves. Jun. 185. ' lb. h Bradish against Gee, ra Barnsley and Powell, Ambl.229. 1 Ves. 290. 1 Mussell against Morgan, ■ Lord Cranstown v. John* 3 Bro. C. C. 74 ; and see Rnoh- ston, 3 Ves. 170. and S. C. xnond v. Tayleur, 1 P. Wins. 5 Ves. 277. and see White v. 734. l.oydV. Mansell, 2 P. Hall, 12 Ves. 321. Wms. 73. Barnsley v. Powell, b White v. Hall, 12 Ves. 1 Ves. 120. 321, 23S EQUITY JURISDICTION". eery was on an Issue, proved to be a forged Will, the Chancellor restrained the setting Up of that decree r . So if Dower be fraudulently or partially as- signed by the Sheriff, a Court of Equity will relieve d . Deeds procured from a drunken Man, will not, it seems, be relieved against. Lord Coke ob- serves in regard to Inebriation, " Although he who is drunk, is for the time non compos mentis, yet his drunkenness does not extenuate his actor offence, nor turn to his avail; but it is a great offence in itself, and therefore aggra- vates his offence, and doth not derogate from the act which he did during that time ; and that as well in cases touching his life, his lands, his goods, or any other thing that concerns him e /* And it was the doctrine of Sir J. Jekyll\ that the having been in drink, is not any reason to relieve a Man against any deed or agreement gained from him, when in those circumstances, unless the Party was drawn into drink through the manage- ment or contrivance of him who gained the Deed. So, too, the opinion of Lord Ilardwiche on this subject appears to have been, that the Drunken- ness of one of the parties was not sufficient to set aside an agreement, unless some unfair advantage was taken ; and therefore in the case before him, the agreement being to settle disputes in a family, c Barnsley v. Powell, 1 Ves. e 4 Co. 125. 287. 'Johnson v. Medlicott, 3. P. d Hoby v. Hoby, 1 Vern. Wins. p. 130. n. a. and see 218. S. ('. 2 Ch. Cas. 160. Cook v. Clayworth,18Ves. 12, Sneyd v. Sneyd, 1 Atlc. 442. 1-IMUD. 239 a I reasonable, and no unfair advantage appearing :ve been taken, he refused to set it aside, I ugh the party complaining of it was drunk •when he executed it K . Decisions, by such Lawyers, are as a Law to successive Judges, though the reasons for them ma) not be satisfactory. It may, however, be ob- served, that by the Scotch Law, Persons in a state o'i absolute. Drunkenness, and consequently deprived of the exercise of reason, cannot oblige themselves; but a lesser deg-ce of drunkenness, which only dark- ens reason, has not the effect of annulling a con- tract 1 '. Thedistinctionthustaken,seems reasonable; for it never can be said that a Person absolute/;/ drunk, to use the Scotish term, lias that freedom of mind, generally esteemed necessary to a deliberate consent to a contract; the reasoning faculty is for a time deposed. At Law it has been held that upon noil est factum the Defendant may give in evidence that they made him sign the bond when he was so drunk that he did not know what he did'. And will a Court of Equity be less indulgent to human frailty ? It seems to be a Fraud to make a contract with a Man, who is so drunk as to be incapable of deliberation ; and if so. the contracts of such Persons would, one might think, be relievablein Equity. Cases of glaring injustice, may easily be imagined. Ifcincccius k , Puffendor(j'\ and Pothler m , all agree ■ Cory and Cory, 1 Ves. p. I\ 172. S.'C. referred to in MS. 11). hut Lord Eldou has oh- in 1 Selw. Abridgment, 49.3, served, " it is a very strong n. \ . case." vStoeklcy v. Stockier, k B. 1. Ch. 14. s. 392. 38 Ves. :30, :ji. ' R. 1. Ch. 4. s. 6. u Krsk. Lust. p. 447. m Traite dea Obligations, P, *Cok t. Mo!. I. ins, ijull. N. 1. Ch. 1. 9. 1. art. 4. 240 equity Jurisdiction. inconsidering contracts, under such circumstances, as invalid, and the admirable Author of the Treatise of Equity, thus expresses himself : "Although drunkenness is a kind of insanity for the time ; yet as it is of his own procuring, it shall not turn to his avail, either to derogate from his act or to lessen his punishment ; but it is a great offence in itself, and this holds as well to his life, his lands, his goods, or any thing concerning him* How- ever, Equity, as it seems, will relieve, in this case, especially if it were caused by the Fraud or con- trivance of the other party, and he is so eXces_ sively drunk that he is utterly deprived of the use of reason or understanding ; for it can by no means be a serious and deliberate consent ." Conveyances in Fraud of the Law are relieved against ; for as the Court acts to protect Individ duals in cases of Fraud, so it will act to prevent a fraud upon the Law itself. A Devisee, therefore, is bound to answer a charge by the Heir that the Devise was upon a Secret Trusty or undertaking for a charitable pur- pose, contrary to the Statute of Mortmain p . It is not, however, considered as a Fraud on the Law to take out a commission for the purpose of defeating an Execution' 1 , or after a Judgment obtained and before execution to convey all the Party's effects by way of mortgage r . Even after 1 Vol. Treatise of Equity, and see on this subject, Ad- edited by Fonbl. p. 07. lingtonand Cann, 3 Atk. 141. p 9 Geo. 2. c. 36. Striek- « Exparte Edmonson, 7 Ves. land v. Aldridge, 9 Ves. 51(3. 303. S. C. MS. Mucklestone v. r King v. Marissal, 3 Atk. Browne, Ves. 52. S. C. MS. 192. frRAUD. 211 a Fieri facias, the Debtor may assign a Legacy* bona Jide for a valuable consideration and without notice, and the Assignment will be good against the Creditor 3 . A Bond given for Silks taken Up in order to sell to raise Money, has been ordered to be deli- vered up, upon payment of the Sum really raised, this being a method under the mask of trading, of lending Money at an extraordinary rate of Interest 1 . So, a beneficial lease gFanted at the same time with a loan of Money by Lessee to Lessor, has been set aside, as giving to the lender a profit on the Money lent, beyond legal In- terest \ There has long been a struggle between Courts of Equity, and persons who have made it their endeavour to find out schemes to get exorbitant Interest, and to evade the Statutes of Usury ; and the Court, very wisely, hath never laid down any general rule beyond which it will not go, lest other means of avoiding the Equity of the Court should be found out: they, therefore, always de- termine upon the particular circumstances of each case ; and wherever they have found the least tincture of fraud in any of these oppressive bar- gains, relief hath always been given*. A Bill may be filed to have a Bond delivered up, and, the principal being discharged, to have ? fedgell v. Hay wood, 3 Atk. aud I.eiV. 115; and Be$ Drew 367. v. Power, ib. p. 182. MoUoj v. ; Barker against Vansommarj Irvin, 1 Scho. and Lefr. 31(K 1 Bro. l.\ ( . U!». w Luwlev v. llooptr, 3 Atk, » Browne v. Odea, 1 Sch. 279. VOL. 1- R 242 EQUITY JURISDICTION. repaid what has been paid over and above legal Interest w . It might be different if the Securities had been delivered up*. In the Case of Money lost at Gaming and paid, the Court, it seems, would not grant relief, the Plaintiff in Equity being particeps criminis y . Other instances, where the Court has interfered to prevent Acts in Fraud of the Law, may be mentioned : as where A. granted an Annuity of *£300 a year to qualify his Son to sit for a Borough, and after his Son was chosen, he tore off the Seal ; but the Agreement was established, it being an Imposition on the Public'. So, where a Father sought by Bill, a Re-con- veyance from his Son, of an Estate given to him as a qualification to enable him to sit in Parlia- ment, the purpose being answered, the Bill was dismissed with Costs \ If the Party found his mistake, and repented of it before he had carried his intention into execution, and the Party did not go into Parliament, the determination would be different 13 . So if a Father, a Citizen, makes a voluntary conveyance to a Child to enable himself to swear he is not worth the Sum of ,§£1.5,000, so as to avoid being chosen Sheriff, the Child would be entitled to the Estate . But, it seems, a Conveyance of an Estate to qualify as a Game.. Keeper can be recovered back' 1 ; but there were * Bosanquetand Dashwood, Birch against Blagrave, Ambl. For. 37. S. C: MS. 265,6.' x lb. 41. b Birch against Blagrave, y lb. Ambl. 266. 2 Anon. MSS. c Birch against Blagrave, * See what Lord Eldon says, Ambl. 265, 6. in Curtis and Perry, 6 Ves. d See Bridgman v. Green, 747. and Lord Hardwicke in 2 Ves. 627, FRAUD. 213 circumstances of gross fraud in the case alluded to, which may distinguish it. Conveyances made of Estates in Trust, in order to screen them from Forfeitures for Treason or Felony % have been set aside as against the Crown, though good as against the Party f . So, if an Estate in Fee, or in Tail, be given to A. but in case he commits Treason within such a Term of Years, is limited over, this is a void clause, and will not prevent a Forfeiture 5 . There is a very strong case on the subject of Fraud on the Law, determined by the highest authority. It has been holden that Parties should be liable to an additional duty, though the Act imposing that duty had not in fact passed, the intention of the Legislature to impose it, being- publicly and sufficiently known, by means of the printed votes of the House of Commons' 1 . The intention of the House of Commons, might ap- pear from a vote of that House, but not the in- tention of the Legislature. It is now usual to make Revenue Laws in some degree retrospective, to avoid evasions of this nature, which if not chargeable as a fraud on the Revenue, are greatly injurious to it'. Frauds on Covenants are relieved against. If, for instance, a Father covenant on his Da ugh- ' Young v. Peachy, 2 Atk. 8 Carte v. Carte, 3 Atk. 180. 258. The case of Fletcher v. S. C. Auibl. 32. Kobinson, Prec. Ch. 250. h Vicars and Attorney contra, was over ruled in Chap- General, 6 Bio. C. ft 491/ lin v. Chaplin, 3 P. Wms.233. Toinl. Edition. f See Duke of Bedford v. ' lb. note by Editor. Coke,2Ves. 117. R 2 214 EQUITY JURISDlCriO>. tcr's Marriage to leave her at his death a full and equal share of his Personal Estate with his Son, and afterwards transfers his Personal Estate in the Funds into his Son's name, who verbally promised to pay the Father the Dividends for his life, this will be set aside as a Fraud on the Covenant 1 . Covenants of this nature, are by no means cen- surable. They do not confine or restrict the Father's Powers. He may alter the nature of his property from personal to real ; or he may give scope to projects, or indulge in a free and un- limited expence. But he is not allowed to enter- tain more partial inclinations and dispositions towards one Child before another. If his partia- lity to one Child is greater than to another, and he determines to make a difference in favor of such Child, he must do it directly, absolutely, and by an unqualified gift, surrendering all his own Right and Interest, lie must give out and out. He must not exercise his power by an Act which is to take effect, not against his own Interest, but only at a time when his own Interest will cease k . If undue influence be used to obtain a Deed, a Court of Equity will set it aside ; as if a Parent abuses his authority over his Child, and obtains from it a Conveyance. An Act done out of a fear of displeasing a 1 Jones v. Martin, 6 Bro. «'ase in the House of Lords, F. C. l-'37. and 8 vol. p. 242. 5 Ves. 266. n.a. reversing decree, in Exchequer, k Jones and Martin in House 3 Anstr. 882. See a Note of the of Lords, 5 Ves. 268, in note. Chancellor's Argument in this FUAUD. Q45 Father or Mother, is not that sort of fear which •vitiates a Contract; hut if a Person having ano- ther under his authority employs ill treatment, or menaces, to procure a Contract, the Contract under such circumstances, would, it seems, be void; but Lord HardmcJa was of opinion, that if a Son Tenant in Tail and a Father Tenant fo Life, a^ree on something for the benefit of the younger Children, and afterwards the Son com- plains of paternal authority being exerted, though there might be something of that sort, yet if the Agreement be reasonable, the Court will not set it aside 1 . Transactions of this sort between Parent and Child will be looked at with jealousy, and so that the Father shall not take an improper advantage of his Authority *; but the complaint must always be made in tune, not after the Father is dead, and the Son has entered into an Act by his Marriage, under which immediately, the moment it is celebrated, persons unborn, acquire a right". As where a Son, Tenant in Tail in re- mainder, when just of Age joined his Father Tenant for Life in a Recovery, for the purpose of raising .€3000 for the Father, and resettling the Estate, the Son taking back oulv an Estate for Life, with remainder to his first and other Sons, &c. it was held, that, whatever Equity he might 1 Cory v. Tory, 1 Ves, JO ; m Young v. Peachy, 2 Atk. and see Kinchaot against Kin- 254. chant, I 15ro. C. C. 300. see ' Bower v. Carter, 5 Ves. also on tliis subject, Pothier, 877; and see 1 Ves. 401; Tom. 1. 17. and Domat's Civ. Cocking v. Pratt. L. 1 Vol. 243. Brown v. Car- ter, 5 Ves, 570, 24(3 EQUITY JURISDICTION". have had against that Settlement was lost by his Marriage and acquiescence till after the death of his Father °. If a Son, in plentiful circumstances, gives his Father a Bond to pay him an Annuity for his Life, and it is done freely and without coercion, it is good p ; but if a Father who is Tenant for Life draws in a Son who is Tenant in Tail to join in a Conveyance which will destroy his Remainder, the Court upon very slender evidence will relieve the Son\ If a Warrant of Attorney to confess a Judg- ment r , or if a Compromise, be obtained from a Man in Gaol, it will not, it seems, be good, unless he has proper advice and assistance 5 ; as if a Counsel be present*. Frauds on Powers are often the subject of Relief in Equity. Some of them have been adverted to. A Party, for instance, will not be allowed to execute a Power for his own benefit ; as where Lord Sandwich having a Power of appointment, and thinking one of his Children was in a con- ■ sumption, appointed in favor of that child, with a view, as the Court supposed, to take the chance of getting the Money as administrator of the Child v . But the Court will not act against a Title under a Power, upon a mere suspicion % that the Power • Browne v. Carter, 5 Ves. ' Hinton v. Hinton, 2 Ves, SG2. Sen. 635. p Blackborn v. Edgley, 1 P. : Roy v. Duke of Beaufort, Wms. 607. 2 Atk. 193. q Heron v. Heron, 2 Atk. v See what is said in Mac 161. Queen v. Furquhar, 11 Ves, 1 Roy v. Duke of Beaufort, 479. 2 Atk, 193, *RAUD. 247 had been fraudulently exercised"": as where there Was a Purchase under the Execution of a Power of Appointment by a Father, subject to Estates for Life in him and his Wife, in favor of their Son : all three joining and receiving the Money, the fair value, which is presumed to be received according to their Interests in the Estate, and the Purchaser not bound to see to the application, and the transaction appearing fair both upon the Instru- ment and the abstract, it was held that the Pur- chaser could not object to the Title on the ground of a fraudulent execution of the Power". Though there be a Power in a Settlement to raise a portion for a younger Child, at such time as the Parent should direct, the Parent cannot direct it to be raised at fourteen ; for this is against the nature of the Power. Such a Power only enables the Parent to raise it in his own Life, if it should be necessary . It would be proper so to do upon the Daughter's Marriage, or for several other pur- poses y . The Cases relative to Illusory Appointments, under powers, have created much difficulty in the mindsof Judges, and great contrariety of opinion. At Law, if some share, hoiccver small, be allotted, the Ap- pointment is effectual"; but in Equity, the Doc- trine is very different. There, an Illusory Appoint- ment, is considered as nfi aud*; and it is there held that, if a Person has a power of appointment among "lb. 11 Ves. 467. * Vanderzee v. Aclom, 4 * lb. Ves. 785. y Lord Iliiiehinbrokeiigiiinst a Boyle v. Bishop of Peter- Seymour, lBro.C.C. 3D5. borough, 1 Ves.Jun.310. £48 EQUITY JURISDICTION. Children, or other objects, in such shares, manner, and form, and at such times as he thinks fit, he must make a fair, substantial, reasonable, and not an illusory appointment ; and of this^ the Court will, on a Bill filed for that purpose, form its Judg- ment*. This doctrine, reluctantly adhered to in conformity to Precedents, seems to have overturn- ed the Principle laid down in several other cases , where the Court, from the difficulty of determining what is an illusory appointment, has surrendered all discretionary authority on the subject, and has said, in determining what is illusory, that it will go as far as it is bound by Authority, but no farther ; or in other words, that where the Sum appointed in any case, is not so small in proportion to the whole Sum to be appointed, as in former cases where the Proportion given has been held to be illusory, the appointment is valid. It is very clear that wherever a Power is given, to appoint to and among several Persons, the Power is not well executed, unless some part is allotted to each d ; but if the Power be in these words, " to be disposed of amongst her Children as she shall think proper," she may give it to one Child c . . I b Baxv. Whitbread, 10 Ves. 12 Ves. 123. and Dyke v. Syl- 22; and see particularly Van- vester,ib. 126. derzee v. iclom, 4 Ves. 784, d Menzie against Walker, 5. Butcher v. Butcher, on For. ?2. Vanderzee v. Aclotn, appeal, 18 Ves. 79. etc. Col- 4 Ves. 784. man v. Seymour, 1 Ves. 211. e Kemp v. Kemp, 5 Ves. c Butcher v. Butcher, 9 Ves. 85G. 383, JHoccata v. Lousada 4 IIMUD. 119 If an appointment be determined to be illusory, and therefore proper to be rectified, the Court, it has been holden, cannot do otherwise than by decreeing an ajual distribution f \ and giving the property as in default of execution of the Power 5 . Where, upon the face of the Appointment, a sufficient reason has appeared, why a nominal Sum is given, it has been held to be effective 11 ; and Lord A Ivan ley was of opinion, that as between Parent and Child, a sufficient reason tor giving such a sum might be proved '. If a Power of Appointment be in part defec- tively executed, the whole of the Fund will not be distributable, as in default of appointment; but so much of the Fund which is well appointed will stand, and the remainder divided as in de- fault of appointment k . It has been long settled that an appointment cannot be made to a deceased Child 1 . And it appears to be universally admitted that if under a Power of Appointment among Chil- dren, a substantial share is given to each Child, it may be by different Instruments, at different times in . A power, for instance, of appointing a f Gibson and Kinven, 1 Vein. 310. Spencer and Spencer, 07. last edition, and see Spen- 5 Ves. 80S. cer v. Spencer, 5 Ves. 302. » lb. 5 Ves. 368. 6 Pocklington and Bayne, 1 k Bristow v. Warde, 2 Ves. Bro. C. C. 450. 350. Wilson v. Pijjott, in, 857. b Bristowe and Ward, 2Ves. Routledge v. Do; nl, ib. 360. 330. Long and Long, 5 Ves. ' Mad lison v. Andrew. 1 448 ; and see Kemp v. Kemp, Ves. 57. Butcher v. Butcher, 5 Ves. 859. Boyle v. Bishop 18 Ves. 91. of Peterborough, 1 Ves. Jun. "See Wilson v. Pig 2 Ves. 354. 250 EQUITY JURISDICTION. Fee may be executed at several times — at one time to pass an Estate 'for Life, and the Fee at another". In some of the Cases, it has been determined that where there is a power to divide among Daughters in such proportions as the Wife should think fit, it must be equally : unless a good reason appeared ; but that is not now the Rule of the Court. But, under words of that sort, if some very good reason does not appear, for giving a very small Sum to one, such a disposition will not be allowed p . But if the Person having the execution of the Power has provided for the Person in some other way, that is sufficient, and the appointment will not be considered as illusory q . U the words of the power be, iC then to be dis- posed of amongst her children, as she shall think proper ;" a series of Judges, from Lord Notting- ham to the present time r , have held that they amount to a gift to all the objects ; and the ex- clusion of one is an undue execution 8 . If the words of the Power arc, " to such of her Chil- dren as she shall think proper/' that would give n Borcy v. Smith, 1 Vern. ' Kemp v. Kemp, 5 Ves. 85. 861. Bristow v. Warde, 2 Ves. * Astry v. Astry, Prec. Ch. Jun. 336. 256. ' See Gibson v. Kinven, 1 p Kemp v. Kemp, 5 Ves. Vern. 66. Menzey v. Walker, 859 ; and see Gibson v. Kin- For. 72. Maddison v. Andrew, ven, 1 Vein. 67. and Maddi- 1 Ves. 57. Alexander v. Alex- son v. Andrew, 1 Ves. 59. ander, 2 Ves. 640. SeeBurrell v. Burrelh Arubl. s Kemp v. Kemp, 5 Ves. C60. 656,7. FRAUD. £51 a latitude to appoint to one only 1 . So, where the words are, " to one or more of his Children/* or, " to any of his Children v ," or, " to and amongst all such Child or Children"" or, " amongst all or such of his Children *," or, ■■ to such of my Children'," they have been held to shew a manifest intention to give a Power to ap- point to anyone Child, that should answer the description z . A Power of appointing among Children, will include Children by any Marriage*. A Power to make a Jointure, if fraudulently exercised, will be relieved against. As where a Jointure is to be made, in proportion to the Por- tion to be received, the Transaction must be fair, bona fide, without fraud and collusion, and there- fore if it is a nominal, not a real portion, that will not do. It often happens a Man marries a Lady with a small Portion, and he or his Friends ad- vance Money to make up that a nominal portion, and take it back; but that is a fraud. So if the Wife has the requisite Portion, and it is settled to her separate use, that is not allowable ; but wherever the Portion of the Wife is stipulated to be applied in a proper and reasonable manner, in the usual 1 Thomas v. Thomas, 2 y Leife v. Saltingstone, in Vern. 513. C. P. 1 Mod. 189, 2 Lev. 104, v Tomlinson v. Dighton, Carter 232. 1 P. Wms. 149. ■ Kemp v. Kemp, 5 Ves. w Wollen v. Tanner, 5 Ves. 857. 218. ■ Butcher v. Butcher, IS x Macey y, Shurmer, 1 Atk, Ves. 91. 389, •lb* EQUITY JURISDICTION, way of settling for the benefit of the family, that will be considered as a portion received 1 *. A Jointure of a " clear yearly Sum" means clear at the time of making the Jointure, and not that it is to be so during its continuance . The term, clear, is adjudged to mean, clear of Incumbrances, and all other charges which by the course and usage of the Country, in which the Lands lie, ought be borne by the Tenant ; but subject to the Land-Tax and all other outgoings, which accord- ing to such course of the Country ought to be borne by the Landlord d . The Books abound with a variety of Cases, which have been considered as a fraud on the Custom of London ; but the Statute of 11 Geo. I. c. 18. s. 17. having enabled Freemen of London, " to give, devise, will and dispose" of their Per- sonal Estates, " as they shall think fit," most of those cases are now of no importance. Fraud occasioned by Preventing the execution of Deeds, will be relieved against in Equity. As where a Recovery was prevented by a Person, with a view that the Estate should devolve upon another, with whom he was connected, Lord Thurlow considered it as against conscience, that any one should hold a benefit, which he derived through the fraud of another Q . b See Earl of Tyrconel v. e Huguenin v. Baseley, 14 Duke of Ancaster, 2 Ves. Ves. 290. see also 289 ; and 501, 2, see Mestaer v. Gillespie, 11 c lb. 502. Yes. 6-38. Prec. Ch. 393. d lb. 504, 5. 4 FRAU0. 253 It has been doubted whether on the Sale of a Ship, the want of an Indorsement upon the Certifi- cate, as required by the Register Acts f , though occasioned by Fraud, can be remedied in Equity ; so imperative are the words of the Acts K . Where an Heir apparent*, or Devisee, prevents a Testator from charging a Legacy, by telling him it was unnecessary to give himself that trouble, and that it should be paid ; such under- taking has been enforced in Equity '; but if the promise had been made, by a person not inter- ested, or not solely interested, it would be differ- ent 1 '. With regard to Fraudulent Devises, it is observ- able, that before the Statute 3 W. and M. c. 14. bond and other specialty Creditors, whose debts did not immediately affect the Lands of their Debtors, were liable to be defrauded either by their Debtor devising his Lands, or by the alie- nation of the Heir before any action could be brought against him ; to obviate these frauds, the Statute declares all Wills and Testaments, limi- tations, dispositions, and appointments of real f 20 Geo. 3. c. GO. and v. Aldridge, 9 Ves. 519; and 34 Geo. 3. c. 08. see Ruck v. Kennegal, 1 Ves. e See Mestaer v. Gillespie, 123. Barrough v. Greenougb, 1 1 Ves. 0-21. 8. C. MS. and see 3 Ves. 152. Ruck v. kennegal, Speldt v. l.echmere, 13 Ves. Ainbl. 07; see Sellack and 588. Harris, Vin. Abr. tit. Contract h See Chamberlaine v. Cham- and Agreement, (H.) Cas. 31. berlaine, 2 Preem. 'M. k See Whitton v, Russell* Mestaer v. Gillespie, 11 1 Atk, 449. Ves. 038; s:?. I a si edition 025 ; and Bee what is ^ai and Lord Hunsdon v. Countess S. C. 1 Dick. 4. Eytonv. Eyton, Dowager of Arundel, Hob. 2 Vern. 380. S. C. Prec. Chan. 100. S. C. mentioned 2 P. 116. and 1 Bro. P. C. 151. Wins. 748. and Woodcroft v. m Whitfield v. Faussett, Burton, noticed in the first 1 Ves. 387. mentioned Case. n Tucker v. Phipps, 3 Atk. " See 1 P. Wms, 732. 3ti0. r Sanson v. RumSey , 2 Vern. Saltern against Melhuish, 561. Ambl. 249. s Hampden v. Hampden, p Dalston v. Coatsworth, mentioned 1 P. Wms. 733. S< J P. Wms. 731 ; and see King C. 1 Bro. P. C, 250. FRAUD. 259 In every Case, however, of this description the proof of the existence of the Deed appears to be fundamental to the Decree 1 , and is usually men- tioned in Decrees, affording relief in such cases. Where a Devisee obtained a Decree to hold and enjoy against the Heir, who, it was supposed, had suppressed the Will, and pending the Suit, a third person got an Assignment of a Mortgage made by the Testator, and then purchased the Equity of Redemption of the Heir with notice of the Will, the Court would not admit the pur- chaser to dispute the justice of the Decree, nor to try at Law, whether the Will was not cancelled by the Testator v . The suppression of Deeds will, it seems, afford a strong ground for the intervention of a Court of Equity to prevent the operation of a Fine, even in the case of a legal Estate, and clearly, in the case of a Trust Estate w . If a Remainder-man gets the Deed by which the Remainder is created, into his Power, and will not allow the Tenant for Life to have a sight of it, the Tenant for Life, in such case, may execute conveyances, and though he does not 1 Cowper v. Earl Cowper, Cowper v. Lord Cowper, 2 P. 2 P. Wins. 745 v 749,75l). Such Wins.. 749; and see Eyton v. proof appeared in •*. s9 260 EQUITY JURISDICTION. pursue the terms of the Power, yet Equity will- relieve x . If a Bond be destroyed by the Trustee, the Cestui que Trust may file a Bill of Discovery, and if the destruction of the Bontl is admitted, that does away the necessity of Profert at Law, and Liberty will be given to the Plaintiff to bring an action in the name of the Trustee, and further directions will be reserved till after the Trial y . If a Person gives a voluntary Bond, and after- wards procures, and destroys it, r a Bill will lie for a discovery and payment of the Money 2 . If one has notice of an unregistered Con- veyance in a Register County, it is considered as a fraud in him to obtain a registered Convey- ance a , and insist on the Statute* 5 ; and in such case the Court will relieve c . Notice to the Agent, is in these cases considered as notice to the Principal d . If a Deed of Appointment of Lands? in Middlesex be made in pursuance of a power » Gilbert's Lex Praetoria, Neve, 3 Atk.C46. S. C. Amh\ MS. 430. and 1 Ves. 67. etc. Blades y Seagrave v. Seagrave, v. Blades, 1 Eq. Abr. 358. & 13 Ves. 43Q. C. 3 Atk. 654. Beatriff v. * Atkins v. Fair, 1 Atk. 287. Smith, ib. p. 357. Clieval v. S. C. more full 2 Eq. Abr. 247. Nichols, 1 Str. 664. S. C. 2. 8 Bushell v. Bushell, 1 Sch. Eq. Abr. 63. Hine v. Dodd, and l.efr. 102. Worseley and 2 Atk. 275. S. C. Barn. 258. Do Mattes,' 1 Burr. 474. Wrightson and Hudson, 2 Eq» h 7 Anne, C. 20. Abr. 609. Sheldon v. Cox, c Forbes v. Deniston, 2 Bro. Ambl. 624. Moreeock v» P. C. 425. This is the leading Dickens, Ambl. 678. Bushel} ca?e on the subject, and appears v. Bushell, I Sch, and Lefr. to have been extremely well p. 100. considered. See 1 Sch. and d Lc Neve y. Le Neve, ut Lefr. 99,100. Le Neve v. Le supra, FRAUD. 261 in a former Deed, it will be postponed to a Mortgage, subsequent to, but registered before it*. The notice may be proved by parole Evidence ; upon which, however, Lord Alvanley observes, " I regret that the Statute has been broken in upon by parole evidence, and am glad to find Lord 'Hardwickt, in Hine v. Dodd f , says, nothing short of actual fraud will do s ." With respect to the form in which Relief is given, in cases of Deeds fraudulently obtained, it appears that, where a Deed is set aside for fraud and imposition, a reconveyance has in several cases h ,been directed; but it seems unnecessary, and to have been done ex abundanti cauteld '. If the Estate has been conveyed to a third person, as an Instrument, not privy to the Fraud, it would be different ; and so, if the Deed is set aside, upon paying so much Money, there, till payment, the Estate remains in the Grantee k . e Scraftonv. Quincey, 2 Ves. jun. 294 ; and see Hawes and 413. Wyatt, 3 Bro. TF. 567 submit to the Will, the Court has made the Father's opposition work a Forfeiture of his Son's Estate. If there is any Gift to the Father in the Will, and he submits to it, the Court directs and appoints a Guardian on his presumed submission '. If a testamentary Guardian refuses to act, a Petition, (a.Bi\\ for the purpose is unnecessary,) may be presented to appoint another Guardian w ; but it has been said, that where Guardians have accepted the Guardianship, if afterwards they will not act in the Trust, the Court will compel them, nor will the Court appoint others in their stead, unless under very particular circumstances '. Where there is no Guardian, an Infant may, by Petition, without suit, obtain an Order for the appointment of a Person to act as Guardian m , (even where the Father is living, if he be an im- provident Person,) and also obtain a reference as to Maintenance ; but though such an Order has often been made", it has in some instances been prevented being fully carried into execution until a Bill has been filed: as where the Property is considerable, or it is necessary to take accounts in the Master's Office ; or when Trustees in whom a discretionary power is vested are called on to 1 Blake v. Leigh, Arnbl. by the Register. Ex parte Kent, 300,7. ib. p. S8. Mellish and Da k O'Keefe v. Casey, 1 Sch. Costa, 2 Atk. 14. Ex parte and Lefr. 100. Ex parte Salter, Whitfield, '2 Atk. 315. Lady 3 Bro. C. C. 500. Tenham v. Barrett, 2 Bro. P. 1 Spencer against Earl of C. 315. Chesterfield, Ambl. 140. " Ex parte Mountt'ord, 15 m Ex parte Birchill, 3 Atk. Ves. 445. 813. Ex parte Salter, 3 Bro. ° See the cases mentioned C. C. 500. S. C. 2 Dick. 700. by Mr. Dickens, in Ex pane where subject much di?cusicd £ Dick, 772 265 equity Jurisdiction,, allow a Maintenance p . The Costs of the Petfc tion will be allowed to the Guardian in his «c- co tints q . In some cases a Receiver has also been appoint- ed on Petition 1 -, but Lord Hardwickc thought that was going too far s . The right to Guardianship Will never be decided on Petition, but only on a Bill \ Where the Infant's Property is excessively small, the Court, on Petition, appoints a Guardian, without a reference to the Master ; but where the Property amounted to .§£1500, the Court would not appoint without a reference v . If the Ecclesiastical Courts take upon them to appoint Guardians, ex officio, without a Suit instituted for that purpose, a Quo Warranto, it seems, might issue against them, for it is breaking in upon the Jurisdiction of the Chancery, in regard to the Guardianship of Infants w . If any misbehaviour be shewn in a Guardian, the Court, as it is a matter of Trust, has a su- perintendency over it*; and will interfere on Petition only y , and the proper application to change a Guardian, is by Petition z ; but it is said, p Corbet v. Tottenham, ' Ex parte Hopkins, 3 P. 1 Ball and Beatty, Irish Rep. Wins. 152. p. CO. * Wheeler, Ex parte, 16 Ves. "Ex parte Salter, 3 Bro. 2CC. C. C. 500. w Buck v. Draper, 3 Atk: r Ex parte Odell, mentioned 031. 2 Alk. 315. Ex parte Peploe, x Evrev. Countess of Shaft mentioned 3 Bro. C. C. 501, bury, "2 P. Wms. 100. Kx parte Whitfield, 2 Atk. » lb. 1 17. 315. z Vid. Earl of Ilchester 7Ves. 348. s- INFANTS. *iG<> that if a Testamentary Guardian has once t.ikou the Trust upon him and acted as Guardian, it' it is sought to remove him for misconduct, a Bill must be filed a . If a Testamentary Guardian be declared a Bank- rupt, it will be referred to the Master to approve of another person to act as Guardian b . But it is no objection to a Guardian, that he is a Dissenter . A Guardian cannot, unless authorized by the Will so todo d , change the nature of the Infant's Estate, real into personalt} r , or personalty into real", unless by some act manifestly for the Infant's ad- vantage. They cannot do it wantonly f . Lands purchased by the Guardian with the Infant's per- sonal Estate, or the Rents and Profits of his Real Estate, will, in case of his death during his Mi- nority, be considered still as personalt e : and there seems good reason for this ; for if an Infant's Trustees could turn and convert his personal pstate into Real Property, they would thereby debar the Infant of the right the Law gives him of disposing of his personal Estate at seventeen, and might at their pleasure advance the Heir, and • O'Keefe v. Casey, 1 Sch. « See Diet, in Rook and and T.efr. 106. Warth, I Ves.46f. 6 Smith v. Bate, 2 Dick. s Inwood v. Twyne, Ambl. 631. 410, 420. Corbet v. Tottenham, h ' Gibson and Scudamore, 1 Ball and Beatty, Irish Rep. 1 Dick. 45. S. C. Select cases P- 61. in Ch. p.'C3. and Mos. (5. Earl * Terry v. Terry, Free. Ch. of Winchelsea v. Nordiffe, 273, 1 Vera. 434. ^70 EQUITY JURISDICTION. prevent an Infant from providing for his younger children h . Where the Guardian of an Infant Tenant in Tail, cuts down Timber, the Money it produces will be considered as the personal Estate of the Infant; but if the Infant has the 'Fee, it will be considered as Real Estate '. Money ordered to be laid out in Land, must be so laid out ; nor can there be an election to have the Money, as there might if the Infant was of age to elect k . In some cases the Personal Property of an In- fant has been ordered by the Court to be laid out in the purchase of Land, though there was no authority in the Will for changing the nature of the Property ; but at the same time, it has been ordered that the Estate purchased should be con- veyed in Trust, for the Infant his Executors and Administrators , until he should attain the age of twenty-one, and afterwards, for him and his Heirs 1 . If a feme purchases a Church Lease to her and her Heirs for three Lives and dies, leaving an Infant Daughter, and two of the lives die, and the Infant's Guardian renews the Lease, this is ,l 1 Vem. 437 ; and see Pier- k See diet, in Rook and son v. Shore, 1 Atk. 483. Wartli, 1 Ves. 461. i Tullit v. Tnllit, Ambl. ' Ashburton v. Ashbnrton, 870. Mason v. Mason, men- C Ves. 6 ; and see Sergeson v* tioned Axnbh 37K Sealey, 2 Atk. 413. INFANTS. 271 anew acquisition, and goes to the Heirs on the part of the Father™ The Guardian is the proper Judge at what school to place his Ward ; and the Court will not indulge the Infant in being put with a private Tutor, or in changing his school ; and if he should refuse to go to school, will compel him". In the case of a Female Ward, above the age of puberty and marriage, some weight will be laid on the inclinat'on of the Infant, as to with whom she should reside, and be educated . If Guardians disagree as to the management of their Ward, the Guardianship devolves on the Court p ; and where there were differences between Guardians, as to the Education of the Ward, parole Evidence was held to be admissible f the Intent of the Father. Indeed, in such Cases, all 6orts of Evidence, it has been said, are received, to govern the Court in its direction q . 2. The doctrine of the Court relative to the Maintenance of Infants, may next be considered. Sir Joseph Jekyll was the first who ordered a reference as to Maintenance, though no Bill was filed for that purpose ; and this has since been frequently practised 1 ; but the more recent course of the Court seems to be, not to grant a Mainte- nance, upon Petition only, except in very special m Mason v. Day, Prec. Ch. «• Storkev. Storke, 3P. Wms. 3H> ; and see Pierson v. Shore, 52. 1 Atk. 4S0. o Anon. 2 Ves. 56. n Hall v. Hall, 3 Atk. 721 ; r See Ex parte Kent, 3 Bro. and see Anon. 2 Ves. 374. C C.86. and Ex parte Salter, A"OQ. 2 Vei. 375, lb. 500, 27- EQUITY JURISDICTION. cases : as where there is a specific fund for Main-* tenanee ; or the property is very small ; hut, as a, general Rule, if the Infant has ^HCOper Annum, a Bill should be filed s . In those cases where Maintenance is directed without suit, Costs may also be ordered *. Maintenance will not in general be allowed for time past v ,but it may, under particular circum- stances"; but interest is never allowed on arrears of Maintenance, any more than upon the arrears of a Jointure x . Where there is a specific Legacy of Stock, Divi- dends are due for Maintenance, from the death of the Testator y . Where a Fund is given as a Bounty, to a child, the Father, if of ability, notwithstanding a Provi- sion for maintenance in the donation, must main- tain the Child 7 , unless in cases where it is given to the Father \ Where Legacies are given to. a Child by a Re-* lation, a Father is notonly obliged to maintain the Child, and provide for him out of his own Pocket, s Ex parte Mountfort, 15 Sherwood and Smith, 6 Ves, Ves.p. 448. 454. 1 Ex parte Thomas, AmbL x Mellish and Mellish, 14 140. Ves. 510, 517. v Hughes v. Hughes, 1 Bro. y Barrington v. Tristham, C. C. 380. Hill and Chapman, Ves. 349. 2 Bro. C. C. 231. z Hughes against Hughes, w . Maberly and Turton, 14 1 Bro. C. C. 380. Munday Ves. 499. overruling Andrews against Earl How, 4 Bro. C. C. and Partington, 3 Bro. 00. but 226; but see Hoste v. Pratt, see the remark on that rase 3 Ves. 730. where, maintenance, bytheSolicjtorGeneral in Hoste being directed by the will, no. v. Pratt, 3 Ves. 733 ; see also inquiry was directed as to the Sisson v, Shaw, 9 Ves. 288. ability of the father. Reeves v. Brymer, 6 Ves, 425, » 1 Bro. C, C. 388. INFANTS. 273 buthe cannot apply the Legacy to set him out i i the World, or put him out an apprentice or clerk b . But whether an Infant shall have an allowance of Maintenance during the life of the Father, depends always upon the particular circumstances of the case 1 . The question generally is, whe- ther he is of ability . A parent must maintain bit Child, unless totally incapable, or by having a numerous family of children, he borders upon necessity; nor will the Court direct the Interest of a contingent Legacy to be applied for the Child's Maintenance, unless, from the Poverty of his Parent, he is in danger of perishing for want d . And where Maintenance is allowed, it is always paid to the Parent out of the Child's Estate ; and there is no instance of its being de- ducted out of a Legacy left by a Father to the Child % or out of a debt due from the Father, though insisted on by Creditors f . A Mother, married to a second Husband, is not obliged to maintain the Children by the first s ; but is entitled to an allowance for Maintenance, from the Interest of their fortunes h . Where a Man had children by his first Wife, and on her death married a second, and by the Settlement, the Children of that Marriage were expressly secured a Maintenance, it was held b Darley v. Darley, 3 Atk. e Jeffreys v. Jeffreys, 3 Atk. 399. 123. r Jackson v.Jackson, 1 Atk. ' lb. Bank of England v. 515. Morris, cited lb. d Butler v. Buller, 3 Atk. ■ Sed Yid. 2 Ventr. 353. GO ; and see Jeffreys v. Jeffreys, '' Billingsly against Critchet, 3 Atk. 123. 1 Bro. C. C. 2b8. VOL. I. T 274 EQUITY JURISDICTION. after the second Wife's death, that the Father was not bound to maintain a Child by the second Wife. Maintenance will, i[ necessary, be allowed to Infants, where the chance of surviving is equal among all, and no other interest that upon any contingency would take effect, will be defeated ', or where the Devisee over consents 1 "; and this, though there be in the Will, under which the Infants claim the maintenance, a direction for ac- cumulation during Minority. But where, in the Event of the Infant's death under twenty-one, leaving Issue, the accumulated -Property is to go to such Issue, Maintenance is not allowed 1 . In those cases where the Infant has not the absolute Interest, Maintenance is not granted on Petition only, but on a Bill filed exclusively for that purpose" 1 . Where, from proceedings on a Bill for an Ac- count, the Court is satisfied that the Fund is clear, a Residuary Legatee in respect of the ne- cessary delay on taking of the accounts, may have an allowance for maintenance, in the mean time". When Trustees are directed by will to apply so much Interest as may be necessary for main- ' See Greenwell v. Greemvtll, 12 Ves. 321. Ex parte Kebble, 5 Ves. 194. Errington v. Chap- 11 Ves. 004. Collis v. Blaek- man, 13 Ves. 25. Ex parte burne, 9 .Ves. 470. Kebble, 11 Ves. 004. Lomax m Fairman v. Green, lOVes. v. Lomax, ib. 48. 45. Sed quaere; for Ex parte k Fairman v. Green, 10 Ves. Kebble, 11 Ves. 004. was on 48. petition. 1 Errat and Barlow, 14 Ves. ° Warter v. , 13 Ves- 202. Aynsworth v. Pratchett, 1)2. INFANTS. 270 taining, &c. the Court will, if the Infants have other Property, confine the maintenance to what is actually necessary °. The strongest case, perhaps, where maintenance has been allowed, was where a Testator directed maintenance for his Sons during Minority, and for his Daughter till twenty-one or Marriag and gave her a Legacy in case she should attain twenty-one, payable, and to carry Interest from that time; yet having married at eighteen, she was allowed maintenance for the interval, until twen- ty-one p . The Interest of small Legacies (.=£300) has been ordered to be paid to the Mother for mainte- nance, upon her affidavit, that the Father was abroad, in very embarrassed circumstances' 1 . The Court, it seems, always refers it generally to the Master, to consider of a proper allowance, and does not make a special reference'; and a large allowance, for maintenance and education, will, under circumstances, be allowed"; as where a Guardian or Father are in distressed circum- stances': and where younger children are left destitute, a large allowance will be made to tin \ldest Son, to enable him to maintain them v . Rawlins v. GoldiVap, 5 VeSi ' Ex parte Lord Petre, 7 Ves. 440. ^ 403. v Chambers y. Goldwin, l Roach v. Garvan, 1 Ves. 11 Ves. 1. 160. « Walker v. Shore, 15 Ves. 'Harvey v. Harvey, 2 !\ 122. Wins. 24.Lanoy v. Ouke arid r Burnett v. Burnett, 1 Bro. Duchess of Aihol, 2 Ait. 417. C. C, ITU. Petre v. Petre.. 3 Atk. 511. T 2 276* EQUITY JURISDICTION. It is a general rule that a Trustee cannot, for the purpose of maintenance, break in upon the capital, though the capital may be so small, as not to leave a comfortable maintenance and edu- cation; and it is very rarely, that the Court it- self has broke in upon the capital, for the mere purpose of maintenance w . 3. The Marriages of Infant Wards of the Court of Chancery may next be considered. Where Infants under the care of the Court, are upon a Treaty of Marriage, the consent of the Court ought to be obtained. When the Court is applied to, it generally makes a referrence to the Master, to see whether the settlement proposed is proper : if it is found to be improper, the Court will not give the Infant leave to marry x . In like manner, in the City, an Orphan Infant cannot marry without the Licence of the Court of Aldermen, on pain of commitment. The Hus- band is usually required to take out his Freedom of the City, and the Court refers it to the CommoR Serjeant to approve of a proper Settlement y . And though it appears the Party had no notice of his Wife being a City Orphan, yet still he is punishable, for he is bound to enquire z . The Marriage of a Ward, without the consent of the Guardian, is a ravishment of the Ward, and w Walker v. Wetherall, C Ves. y See Frederick v. Frederu k, 474. 1 P. Wms. 710. etc. x Smith y. Smith, 3 Atk. ■ Vid. note D. to Herbert's 305. Case, 3 P. Wms. 118. INFANTS. 277 severely punishable by the Stat, of Westminster, '2.0.35.". Nor is there anything a Court of Equity entertains greater jealousy of, nor shews more resentment against, than the unlawful Mar- riage of Infants ''. No act in Life is of more importance to an Indi- vidual than Marriage ; none on which the color of his future Life so much depends. If an Infant, a Ward of the Court, (filing a Bill makes him a Ward of Court',) be suspected of being about to make an improper Marriage, and there bean affidavit of such intended Mar- riage, the Chancellor will grant an Injunction generally to restrain all communication with the Infant, by Letter or otherwise 11 . Hearsay Evi- dence of declarations, will be attended to, on such occasions 6 . Where an Infant Ward of the Court is sus- pected of forming an improper Marriage, and the Mother, her Guardian, countenances it, the Court will appoint a Guardian in her room, and restrain her from giving her consent to the Marriage with- out leave of the Court, and that the Infant should not be married without leave of the Court, and ""the Infant will be restricted from receiving any Letters or Messages from her admirer'. ' 2 Inst. 440. 2 P. Wins. S. C. MSS. Beard and Travers, 110. Fitz. Nat. Brev. o"29. 2° lVes.313. Edit. e Beard v. Travers, 1 Ves. b 2 P. Wins. 111. 313. c Ambl. 303. Lord Ray- ' See Lord Shi pb rook v. raond's case, For.GO. S. C. MS. Lord Hincbinbrooke, 2 Dick. d Pearce and Crutchlield, 547,8. and the case there men- 14 Ves. 20(5 ; and see Lord tioned ; and see Roach and Raymond's Case, For. 58. Gai van, 1 Dick. S8. 2?8 EQUITY JURISDICTION". All Persons, it seems, concerned in the contri* vance of the Marriage of a Ward of Court, knowing her to be such, are punishable for the contempt e . If Peeresses are instrumental in the Marriage of a Ward of Court, without the leave of the Court, a sequestration will be issued against them for their contempt 11 . A Barrister, a principal contriver of the Mar- riage of a Ward with a large fortune, has been, for his offence, committed to the Fleet, prohi- bited from practising at the Bar, and has been struck out of the Commission as a Justice of the Peace ! . If a Lady, a Ward of the Court, marries after she is of age, without the consent of th.e Court, this is no contempt in the Husband, nor can the Court oblige him to execute a Settlement, if the Husband does not seek its assistance to obtain her Property ; but if the Lady be under age, it will be considered as a contempt, and the Court is ena- bled, by Imprisonment, to compel the Husband to make a proper Settlement k . In a very aggravated case, where a Guardian married his Ward, who was of age, to his Son, who had no Property, it was held to be punishable by an Information '. Where a Marriage of a Ward of Court, without consent, takes place, on a Petition by the Guar- dian, all Parties concerned will be ordered to s Moore v. Moore, 2 Atk. 2 Atk. 173. S. C. mentioned 157. Ambl.304. h Evre and Countess of k Hall v. Coutts, 1 Ves. and ghaftsbury, 2 P. Wms. 112. Beames, p. 300. ' 'JWr. Justice Mitchells Case, 1 Goodhall v. Harris, 2 P. Wms. 5G0, INFANTS. S7fl attend, and the Husband will be committed, but not to close confinement^ (though Lord Hardwickt made some orders to that effect '",) and restrained from receiving his W.jfe's visits; and she, it seems, may be compelled to leave her Husband : after some time, the Husband may petition to be dis- charged, on executing a Settlement, approved by the Master. The personal attendance, of a person running off with, and marrying a Ward, has been dis- pensed with, on offering to go before the Master, and make a Settlement ": and in some cases, he has been discharged, on undertaking to make a Settlement"; but this, Lord Eldon refused to do p . The common course of the Court is to have a reference to the Master, to see that a proper Set- tlement shall be made, before the contempt can be cleared q . Marrying an Infant Ward of the Court is a contempt, though the Parties concerned in such Marriage had no notice that the Infant was a Ward of the Court r ; and a Marriage in Scotland, though on the day the Bill was filed, has been held to be a contempt ', And though a Marriage has been had with a Ward of Court, and some years elapse before it comes to the knowledge of the Court, yet it will m See 8 Ves. 79. « Stevens v. Savage, 1 Vet, n Green against Pritzler, Juu. 154- Ainlil. 602, ' Herbert's (.'use, ^ P. Wins. Stackhole's case, 'A Yes, 89, 1 10. Winch anil .1 nines, 4 Yes. 387. s SulU* v. Kavijjnou, G Yes, v Batlmrst v. Blnrm, 8 Ves, 572. 70. 4 280 EQUITY JURISDICTION. not suffer time to affect the right of the Court to interpose in respect of the contempt'; but it will not punish the Party in such case, unless very strongly called upon so todo v . v If the Father is of ability, and implicated in the procurement of the Marriage, the Court, it seems, will use its animadversion, to force a proper provision from him. In Settlements of the Property of Female Wards of Court, much will depend upon the Fortune of the Husband, and his conduct. If a Beggar mar- ries the Woman for the sake of her Fortune, the Court will not permit him to touch that Fortune ; but if the Husband be of equal rank and fortune with the Ward, and as considerable a Settlement is made by the one as by the other, attention will be paid to such circumstances w . The usual Settlement, seems to be, to settle one- fifth of the Dividends and Interest of the Property upon the Husband, and the residue upon the Wife for her sole and separate use during their Joint Lives, with a clause to prevent anticipation", and a power to the Wife to give another one-fifth to the Hus- band by Will; the residue, subject to a Provi- sion for maintenance, to accumulate, and with the principal to go to the children at their ages of* twenty-one or Marriage, or if only one child, to that child ; and in the event of a second Marriage^ 1 Ball v. Coutts, 1 Ves. and >' In one case on a second Beames, 297. Marriage, the Wife was enabled Y lb. 302. to settle the Interest of a * Ball v. Coutts, 1 Ves. and moiety of her fortune on the Beames, p. 303. second Husband. See 4 Ves. * See Chassaing v. Parsonage, 386. 5 Ves. 17. INFANTS. 261 a power to the Wife to charge, by way of appoint- ment, to each child, a share not exceeding the share of each child by the first Marriage y . In case of no Children, the Husband surviving, the Limitation, is, in default of appointment, to her next of Kin, exclusive of the Husband z . In a gross case on the part of the Husband, the Court refused even to pay his debts out of the accumulation . Where, upon the Marriage of a Ward of the Court, the Husband had falsely sworn she was of age, though only fourteen, the Clergyman was ordered to attend and was reprimanded, and the Husband was committed, and ordered to be in- dicted, which he was, and was convicted, and suffered the punishment of the Pillory and Im- prisonment. On his Petition to be discharged, on executing a Settlement, the Chancellor would not approve a proposal giving him any farther Interest, than in case of his surviving his Wife, and no Children, and an appointment in his favor by his Wife \ Contriving a Marriage, without a due publi- cations of Banns, is a conspiracy at Common Law, exclusive of the contempt, for which, it has been said, a Party may and ought to be indicted . AYhere an Infant is committed by the Court to the custody or care of any one, such Committee gives a Recognizance, that the Infant shall not y See Wells v. Price, 5 Ves. 419. and vid. what is said of 398. that case in Ball v. Coutts, 1 * Bathurst v. Murray, 8 Ves, Ves. and Beames, p. 296. 74. c Priestley v. Lamb, 6 Ves. 1 Chassaing v. Parsonage, 421. Schrieher v. Letevrerd, 5 Ves. 15. 2 Dick. 592. and *he c^ej b Millet v, Rowse, 7 Ves. cited; and 2 P. Wins, 5G0. 262 EQUITY JURISDICTION. marry without leave of the Court, which form is very rarely altered, and only under special cirr eumstances: so that if the Infant marries, though without the privity or knowledge, or neglect of the Committee, yet the Recognizance is, in strict- ness, forfeited, whatever favor the Court upon ap- plication, may think fit to shew such Committee, -when he appears not to have been in fault rt . In Dr. Davis's Case % the Recognizance was on ap- plication moderated, viz. " That the Infant shall not marry, with the Committee's Privity, without the Consent of the Court." It has been determined, that- a general Act of Pardon, though with an exception of contempts, extends to pardon contempts in marrying Infant Wards of a Court of Equity f . Agreements before Marriage on behalf of Infants, by Parents and Guardians, or by the Infant alone % have been held binding on the Infants 11 ; but, it seems, a female Infant cannot be irrevocably bound by an Article entered into during minority, as to real Estate, but may refuse to be bound, and abide by the Interest the Law casts upon her, which nothing but her own act after the period of ma- jority, can fetter or affect '. It has, however, been determined, that a female Infant may by a Join- d See Eyre v. CounteRS of Carruthers v. Carruthers,4Bro. Shaft,burv, 2 P. Wms. 102. C. C. 510. Canpel v. Buckle, e 1 P. Wms. G98. 2 P. Wms. 244. J.acy v. 3Ioore, f Phipps v. Earl of Anglesea, 3 Bro. P. C. 514. Price v. 1 P. Wms. 090. Srys, Barn. 117. Seamer v, .« Williams v. Chitty, 3 Ves. Bingham, 3 Atk. 5(5. 545. see on this subject, Slo- ' Clough v. Clough, 5 Ves. combe against Glubb, 2 Bro. 717. 8. C. before Lord Thurlow, C. C. 551. mentioned, 3 Woodeson, LecL h Anslie v. Medlycott, 9 Ves. 453. in note; and see what is 19 ; and see Dinnford and said in Durnford and Lane* lane, 1 Bro. C. ( . 100; but \ Bro. C. C. 11$. see what is said of that case ia INFANTS. 283 turebc barred of her right to Dower, if the same be competent and certain*, — as certain as hel Dower ; but it' not certain, if only to take place upon a remote contingency, it will not bind 1 . And though, in general, a Father or Guardian, on the Marriage of an Infant Child or Ward, can? not, it seems, by Agreement bind the Interest of the Infant in its real Estates, unless where there is issue of the Marriage, and for that reason, Acts of Parliament have in such cases been resorted to 1 ", in order to make an effectual Settlement ": it has yet been held, that a Feme Infant seized in fee, on a Marriage, with consent of her Guardians, may covenant, in consideration of a competent Settle- ment, to convey her Inheritance to her Husband, and that a Court of Equity will execute the Agree- ment, though no damages could be recovered at Law . But this doctrine is not fully settled. Lord Ilardwicke thought Connelly. Buckle went a great way, as it related to the Inheritance of the Wife ; V but there are cases," he observed, " where the Court will do it: as if the Lands of the Wife were no more than an adequate consideration for the Settle- ment that the Husband makes, and if after the Marriage the Wife should die and leave Issue, who would be entitled to Portions provided for them by the Settlement, it would in that case be very reasonable to affirm that Settlement 11 ." k See Drury v. Drury, or m As in Blois v. Lady Here- Prury v. Karl of Bucks", by ford, 2 Vera. 501. which name it is reported, in "Harvey v. Ashley,3Atk.613. 5 Bj-o. P. Cases 570. °.Cannellv. Buckle, '1 P. ' See Canruthers v. Carru- Wms. -43. approved in 3 Atk. thers,4 Bro.C.C. 500: and see 615. but see 1 liio. 100. and Smith v. Smith, 5 Yes. 189. 5 Ves. 717. Clough v. Clough, 5 Ves. 710. p Harvey and Ashley i 3 Atk. G15. £S4 EQUITY JURISDICTION, There are cases in regard to Money Portions in possession or Contingency*, where a Father con- tracting for an Infant Child may bind the Child, especially if the Child claim any thing under the Settlement ; but then it must be before Mar- riage, and in consideration of the Marriage; for the Court will not suffer her to claim a benefit one way, and not to be bound the other' 1 . Indeed, if a Parent or Guardian could not, in such cases, contract for the Infant, so as to bind the property, the Husband, as it is a personal thing, would be entitled to the absolute Property in it, imme- diately upon the Marriage r . And though in cases of this kind, Parents or Guardians act fraudulently ox corruptly, the Mar- riage Agreement is not therefore to be set aside, or the Children to be stript, but the Father or Guar- dian will be decreed to make satisfaction, and the Husband if a Party to the Fraud will be made do so likewise *. A Settlement to bind an Infant must be fair and reasonable 1 ; but inequality between the Dower and the Jointure will not always invali- date a Settlement. If, for instance, a female Infant, marries a Gentleman of great Estate, the Dower is one-third, and she has a Jointure made to her of one-tenth of the value ; yet as the Law intrusts Parents and Guardians with the Judgment for the Provision of Infants, she can- not set aside the Settlement". * Harvey v. Ashley, 3 Atk. 'Harvey and Ashley, 3 Atk. 613. Theobald v. Delay, 2 P. 611. AVms. C08. S. C. 1 Inst. 101. ' Williams against Williams, H Seamer y. Bingham, 3 1 Bro. C. C. 152. Atk. 55. * 3 Atk. 612. ' 3 Atk. 613. INFANTF. And in those cases where the Settlement is voidable by the Infant, it may be confirmed by the Act3 of the Infant, after attaining full age, as by receiving Interest", or accepting a Jointure for a year and an half*. Ifa Male Infant marries an adult female, who by Settlement covenants that her Estate shall be settled to certain uses, he is bound by her Cove- nant y . The favor shewn to Infants maybe traced in a variety of cases, and particularly in the Practice of the Court, as will be seen hereafter. Ifa Legacy is given for the benefit of an Infant in one way, and it cannot be so applied, it may be applied for his benefit in another way : as where the Legacy was given to put him into orders, and he became a Lunatic, it was applied in hissupport*. It appears to have been formerly the Practice, to petition the King to direct his Judges to take a Fine or Recovery from an Infant. This Petition, the King referred to his Chancellor for his Report as to the propriety of what was thus petitioned for; and if after argument before him, he reported that the Petition was reasonable, the King granted a Privy Seal*. But Common Recoveries, and Fines suffered by Privy Seal, are now disused, and private Acts of Parliament are had recourse to instead b . • Franklin v. Thoruburgli, * Barton v. Cooke, 5 Ves. J Vera. 132. 4G3. - x Hervey v. Ashley, 3 Atk. a Vid. Sir Humphry Mack- 607, mentioned, 2 Ves. 671; worth's- Case, 1 Vera. 461 • and see Smith v. Low, 1 Atk. Mr. Raithby's note. 490. b Hesketh v. Lee, 2Sannd. y Slocombe v. Glubb, 2 96. ft. Bro. C. C. 548. 280 EQUITY JURISDICTION. 5. SPECIFIC PERFORMANCE OF AGREEMENTS. The Jurisdiction of the Chancellor to enforce the Specific Performance of Agreements, forms one of the great heads of Jurisdiction in Courts of Equity, and in the opinion of Lord Hardwicfcc, " the most useful oneV' By the Common Law, every Covenant and Agreement, where there was no proper Conveyance to transfer the Right of the thing itself, was but personal, and being only personal, the party, if it were unperform- ed, could only recover damages. If, there- fore, a man covenanted to settle his Lands upon Marriage, or to convey them for a valuable consi- deration, the Covenantee could only recover da- mages at Law for the breach of such Covenant ; but had no remedy there, for the Settlement of the Thing itself. This was thought much less than complete Justice, because the party who had entered into the Covenant, was in conscience bound not only to make compensation for the breach, where he could not perform it, but also actually to perform it, where it was in his power, and, therefore, a Court of Equity interposed b . The earliest trace of the Equitable Jurisdiction of the Court of Chancery, in decreeing Agreements^ is supposed to be, in a case stated in the Year Book * Penn v. Lord Baltimore, Mitford's Pleadings, p. 108. 1 Ves. 440. 1 vol. Sch. and Letr. 129. Lex b See on this subject Alley Pnetoria, MS. v. Deschamps, 13 Ves. 226". IFIC PERFORMANCE CF AG It BE U E2i TS. 2S7 of 8 K. 1. 4 b. where it is said by Genua/, " that it 1 promise to build yon a house, and do not perform my promise, yon have your subpana' . And Fincu.v, Chief Justice, in the 21 Hep. 7. speaking upon the different remedies given in the Courts, for non-performance of contracts, observes, " that if a man bargain with another that he shall have his land for j£lO, and that he will make him an estate therein by such a day, and he do not make the estate, an action upon the case lies ; but it is to be observed in that, he shall only recover dama- ges ; but by Subpoena the Chancellor may compel him to execute the estate, or imprison him." At whatever time the Jurisdiction began, it is now very clear, that if a contract has been entered into by competent Parties, and is, in the nature and circumstances of it, unobjectionable, it is as much of course in a Court of Equity, to decree a specific performance, as it is to give damages at Law d . The Court, it is said, has a discretion in such cases e , and so it has ; but it is not an arbitrary and capricious, but a regulated and judicial, dis- cretion^ a discretion, governed by established Rules of Equity *. It has been said \ and generally speaking, cor- rectly ', that in cases of Agreements, before Lord c Sed.quee, if such an agree- 35; and see Buckle v. Mitchell, meat would now be enforced, 18 Ves. 111. see post. B Goring v. Naslv, 3 Atk. d Hall v. Warren, 9 Ves. 188. C08. h Dodsley v. Kinner>ley, • See 1 Ves. 2? ( J. and 1 Ves. Ambl. 400. and Bea. 5'27. ' Marquis of Normanby v. 'White v. Damon, 7 Ves. Duke of Devonshire, 2 Ireew. 216. "1 Vern. 159. 233 EQUITY JURISDICTION. Soyncrs's time, the Party was sent to Law, and if he recovered any thing by way of damages, the Court of Chancery entertained the Suit; but there must have been exceptions to this Rule, for there are cases where the Party maybe relieved in Equity, though no damages could be obtained at Law : as where a feme Infant seized in Fee, on a Mar- riage, with the consent of her Guardian.?:, cove- nants in consideration of a competent Settlement, to convey her Inheritance to her Husband, Equity will execute the Agreement, though no action would lie at Law to recover damages k . So, if an Agreement be made for the Sale of an Estate, and the Vendor dies before the period when the Es- tate was to be conveyed, the Heir is bound to convey, though no action lies. So, upon an Agreement to assign a chose in Action, Equity will relieve, though no damages at Law would be given for the breach of the Agreement; and there are other cases of the kind which might be men- tioned ': the proposition, therefore, of Lord Ray- mond m , that a specific performance shall never be compelled, for the not doing of which, the Law would not give damages, seems too broadly laid down. The effect of a mere contract for the Purchase of Land, is in many respects very different at Law, from what it is in Equity. At Law, the Estate remains the Estate of the Vendor, and the k Cannel v. Buckle, 2 P. Vcs. 222. Whitmill v. Farrell, Wuis. 244. see ante p. 282, 3. ib. 258. 1 See Wiseman v. Roper, m Dr. Betresworth and 1 Ch. Rep. 158. Cary 84. Dean and Chapter of St. Paul's, Attorney General v. Day, 1 Select. Cas. in Ch, 08, 8 1 1 1: c i r i v p l B ro u u \ KC £ or a g it i; e m i:nt«. 281) Money that of the Vendee n . It is not so in Equity; there, in general, it is a Rule, that what is contracted to be done foT a valuable considera- tion, is consid :red as d<>nr\ and nearly all the con- sequences arise, as if it had been so, and as if a Con* had Ueen made at the time to the Vendee'. The Vendor of the I . whether it b/e Freehold or Copyhold", is from the time of his contract, and previous to a Conveyance, consi- dered only as a Trustee for the Purchaser, and the Vendee is, as to the: Purchase Money, considered qs a Trustee for the Vendor*. The Estate, pro- vided a good Title can he made v , is considered as the Ileal Property of the Vendee ; and vendible, chargeable, cteviseablc " '', by him, even under general and sweeping words*, will be considered as Assets y . So, money, articled or directed to be laid out in Land, is considered as Land, and has all the inci- dents of a real Estate 7 . It is no longer consid as personal Assets \ A Husband may be Tenant " Seton v. Slade, 7 Ves. v See lb. and see Brome and. '274. and Bee the Reasons in Monk, 10 Ves. Cave a. id Holford, 7 !iro. P. ton and Slade, 7 Yes. C. 602. 274. 4 See Frederick v. Frederick, x Potter v. Potter, 1 Ves, ] P. Wms. 713. Lechmere and 437. (Gibson v. Lord Mount- Earl of (Anil,!.', 3 P, Wms. ford, I Ves. 494. 215. Bash v. Dalway, 3 Atk. » Paine v. Meller, fl Ves. 5;:3. 302. ' Attorney General and Day, ' Seewhal Sir Thomas Sevell 1 \ es, 220 ; and see 3 Atk. says in Fletcher v. Ashburner, G87. 1 Bro. C, C. 497. Hinton v. Hinton, 2 Ves. * Earl of Pembroke v. Bow- 632. S. C. Ambl.277. den, 3 Ch. Rep, 115. S. ( '. 1 Green v. Smith, I Atk. 2Vem. 52. Lechmere v. Earl 573. Polexfen v. Mooie, 3 Atk. of Carlisle, 3 P. Wms. 217. 273. VOL. I. U 290 EQUITY JURISDICTION. by the Curtesy of it b , though (a singular decision, constantly adhered to, but never approved ,) a Wife cannot claim Dower out of it d . It passes as Land by Will 6 : and will not go as Money under a general bequest to a Legatee f . If, indeed, the Testator has described the Money, as so much Money agreed to be laid out in Land, it may pass under the Will as personal Estate, and by a Will not attested by three Witnesses ; but without such a particular interposition of the Testator, mani- festing his intention, it remains as Land, and belongs to the Devisee or Representative of the Real, not of the personal Estate 8 . If upon an Agreement for the purchase of an Estate, any casualty happen after the time ap- pointed for the payment of the purchase Money h , or as some cases say, between the Articles for the purchase and a Conveyance 4 , the Purchaser bears the loss k ; and, on the other hand, he will be entitled to any benefit which may accrue. The same principles apply also as between the Representatives of the Vendor and Vendee ; the k Sweetapple v. Bindon, 2 222. and the cases there men- Vem. 536. Otway v. Hudson, tioned, particularly Edwards 2 Vera.583. Chaplin v. Chap- v. Countess of Warwick, 2 P. lin, 3 P. Wms. 232. Allen v. Wms. 171 ; and see Wheldale Allen, Mos. 123. v. Partridge, 8 Yes. 235. over- c See 3 P. Wins. 234. ruling Walker v. Denne, 2Ves. 4 Crabtree v. Bramble, 3 Jun. 170, 172. Atk. 687. h 2 Atk. 400. Stint v. Bailey, e Green v. Smith, I Atk. 2 P. Wms. 220. 573. Lingen v. Sowray, Eq. ' White and Nutt, 1 P. Cas. Abr. 175. confirmed 3 P. Wms. 61 ; and see Pool v. Wms. 221. Shergold, 2 Bro. C. C. 1 18. ' Lech mere v. Earl of Car- Paine v. Meller, 6 Ves, 349. lisle, 3 P. Wms. 221. in note. k Ves. 349. 8 Vid.uoteC. to 3 P. Wins. SPECIFIC PERFORMANCE OF AGREEMENTS. 291 Death of either of the Parties to the Contract not afifectingit 1 . The Heir of the Vendee, (even a col- lateral Heir" 1 ,) is entitled to insist on the com- pletion of a Contract to purchase Land, out of the personal Estate of his Ancestor ", and this, though the Ancestor would have had an Estate Tail which he might have barred ; but if there is not a good title, he can neither claim the Estate, or the Money 1 '. In like manner, where there is an effectual Agreement for the Sale of an Estate, by- one then entitled q , the Heir of the Vendor is bound to perform it; and the personal Represen- tative may enforce it against the Vendee ; and such personal Representative is entitled to the Purchase Money r ; but where the Court holds the Contract cannot be performed, or ought not to be performed, though it might, there the real Estate belongs to the Heir of the Person contract- ing to sell s . If the Land agreed to be sold, be Bo 1 Legavd v. Hodges, - Ves. 47S. (..ill and Vermedun, 2 Freemj 199. Seton v. Slade, 7 Ves. 274. Winged v. Life- bury, 2 Eq. Abr. 82; and see Jackson against Lever, 3 lira. C. C. G05. a very hard case; see also Lacon v. Mertins, 3 Atk. 1. and Potter v. Potter, 1 Ves. 437. ai Lingen v. Sowray, i P. Wms. 172. S. C. in Gilb. 91. and in 10 Mod. 39. Count ss of Warwick and Edwards, 2 P. Wins. 271. approved, For. 90. Kettleby v. Atwood, 1 Vera, 299, 471. Vernon v. Vernon, *il>. Wms.223 n Seton v. Slade, 7 Ves. 274. liuckmaster v. Han op, 7 Ves. 341. andS. C. 13 Ves. 172. and see Langford and Pitt, 2 P. Wins. 629. Parson* and Freeman, Ainl.il. Ub\ ° Vid. 1 P. Wms. 719. p Green v, Smith, 1 Atk. 573. « 1 Anstr. 14. r Baden v. Countess of Pem- broke, 2 Vera. 315. Lacon t. Mertras, 3 Atk. 1. 7 Ves. 425, * Attorney General v. Duv, 1 Ves. 220. L 292 EQUITY JURISDICTION. rough English Land, the younger Son, after the death of the Father, will be bound to carry the Agreement into effect'; and in all cases of this description, the Creditors of the Bargainor may compel the Heir to convey the Land v . Such is the converting effect of a mere Agreement, that a Covenant by a Joint-tenant to sell, severs the Joint-tenancy in Equity, though not at Law w . And where a Surrender by a Copyholder, would bar the Widow's Fiee Bench, a Contract to sell or Surrender, has the same effect x . If a Tenant for Life, having a power to grant, covenants to make such a grant; this will, iu Equity, bind the Remainder-man, it being in the nature of an execution of a Power. So, if a Tenant for Life agrees to make a Lease pursuant to his power, the Remainder-man is bound y . And in like manner, contracts for Join- tures, will bind the Remainder-man, though made only in pursuance of a Power to make Jointures. Contracts for a valuable consideration to execute a Power, or to make a charge of any description under a power, are also binding on the Remainder- man z . A parol Agreement for a Lease made by a ' Hinton v. Hinton, 2 Vern. x Jlinton v. Hinton, Ambl. 640. 277. S. C. 2 Ves. 633. over- v Best and Stamford, 1 Salk. ruling Musgrave v. Dashwood, 35*. 2 Vem. 63. w Browne v. Raindal, 3 Ves. 7 Shannon v. Bradstreet, 257. and see Partriche v. 1 Sch. and Lefr. 52. IVnvlet, 2 Atk. 54. contra diet. » lb. 60. 2 Vein. b-:. SPECIFIC PERFORMANCE OF AG RE L U :.N IS. 2£3 Tenant for Life, in pursuance ofa Power, if partly performed, might be enforced against theTenant far Life ; but itseems questionable, whether it could be enforced against a Rcmaindtr-man; for though the Tenant for Life is bound, it is principally, as will be seen, on the ground of Fraud, which is personal, and which does not apply to the Re- mainder-man V 1 If the Remainder-man, after the death of the Tenant for Life, acquiesced, it would be different 1 *. Upon the sameprinciple that what is agreed to be done is considered as done, it has been holden that, the personal Estate ofa Man, who in consideration of Marriage with an Orphan ofa Citizen of London, covenanted to take up his Freedom of the City, should be divided according to the Custom, in the same manner, as if the freedom had been taken up in performance of his Covenant c . It has been «aid, that in general, it is a Rule that what is contracted to be done for a valuable con- sideration, is considered as done d , and it seems proper so to qualify the Rule ; for though it ope- rates in the various instances that have been men- tioned, it is not without its exceptions. An Agreement, for instance, to convey, does not affect a subsequent Purchaser, without notice of the * Shannon r. Bradstreet, c Frederick v. Frederick, 1 Sch. -and l.efr. 72. 1 P. Wins. 710. S. C b lb. 73. Styles v. Cowper, 455. and 4 Bro. V. C. ' 3 Atk. 692, d Ants, p 289 294 EQUITY JURISDICTION. Agreement '; nor has a Covenant to levy aFine f r or to suffer a Recovery 5 , the same effect as a Fine or Recovery levied or suffered; but if the Covenant relates to an Entail in Equity, the Court will force the Heir to comply with a bargain made by his Ancestor 1 '. Nor does the Rule hold, in regard to Dower, the Wife not being entitled to it out of an Estate, agreed only to be purchased by, and not actually conveyed to her Husband'. So, if a Body corporate, having a Power, make an Agreement for the Renewal of a Lease, and the fine is paid, and a new member is introduced amongst them, it may be doubtful, whether the Agreement could be enforced against such new Member k . He would certainly be en- titled to his proportion of the Fine, paid on the Renewal 1 . With these preliminary remarks on the effect of a mere Agreement in Equity, we may now pro- ceed to consider, what Agreements will be decreed « EchlifFe v. Baldwin, 10 Ves. 2lb. SPECIFIC PERFORMANCE OF AGREEMENTS. 2. JJy the Statute (29 Cur. 3. C 9. 8. 4.) no Qetion shall be brought, whereby to charge a person upon arty Agreement made upon conside- ration of Marriage, or upon any Contract or Sale of Lands, Tenements, or Hereditaments, or any" interest in or concerning the same, an less the Agreement upon >vhich such action shall be. brought, or some Memorandum or Note thereof, is in Writing, and signed by the party charged therewith, or some other person thereunto by him lawfully authorized. The reason of this provision, in respect to Mar- riage, seems to be, that in no case can there be supposed so many unguarded expressions and promises used, as in addresses in order to Mar- riage, where mauy passages of Gallantry usually occur'. An Agreement, therefore, made by the Husband before Marriage, and not reduced into Writing, is within the Statute 1 . Nor will a written recognition after the Mar- riage, of a Parol Promise before Marriage, take the case out of the Statute b . But a Letter containing the terms of a Matri- asre Agreement takes the case out of the Statute'. y See Buxton v. Lister, 3 3 Montacute v. Maxwell, Atk.385. That an Agreement 1 P. Wms. 618, for the Sale of Timber need h Randall v. Morgan, 12 V. 9. not be in writing, see 1 Lord 7D; but see Hodgson ▼. Rutcft- Raym. 182, but see Crosby inson, Vin. Abr. tit. Contract and Wadsworth, 6 East. (JO'2. and Agreement, (11.) C'a. o4. and also 11 EastJ 362. r Bird v. Blo&e, 2 Ventr. * Vid.wbat is said Arg. in 361. Moarev. Hart, 2 Ch.-Refi. Montacute v. Maxwell, IP. 147. VVankford r. Fotherby, Wins. (319. 2Vern.S22. 298 EQUITY JURISDICTION. Marriage, however, is not considered as a paFt performance of a parol agreement, made before Marriage, so as to take it out of the Statute of Frauds a . Sales by Auction are within the Statute of Frauds b , except Sales under a Decree c , Indeed, wherever the substance of the statute has been complied with in the material part, the forms hav^ never been much insisted on d . If, therefore, a Letter contains the terms of the Agreement, or if it refers to another Paper, which contains the Terms, parol Evidence will be ad- mitted to shew what was the thing so referred to% and renders it a sufficient written Agreement f ; and a Letter has been held binding, though the Per- son did not intend to be bound g : and even a Letter sent to an Agent h , or other third person \ has been considered as a sufficient signing within the Statute. Whether a note, written in the third person, viz. " Mr. T. proposes, &c." (mak- ing thereby an offer to purchase), amounts to a a Montacute v. Maxwell, Bunb. 65. and the dictum in 1 P. Wms. 618. Taylor v. Parteriche v. Powlett, 2 Atk. Beech, 1 Ves. 297; and see 383; and see Brodie and St. diet. Redding v. Wilks, 3 Bro. Paul, 1 Ves. Jun. 326. C.C.400.Du;idassandDutens, f Tawney against Crowther, 1 Ves. Jun. 199. 3 Bro. C. C. 161, 319. 1 Blagden v. Bradbear, 12 g Welford v. Beezely, 1 Ves. Ves. 466. 8. S. C. 3 Atk. 503. see what c Attorney General v. Day, ,is said 3 Taunt. 172. 1 Ves. 218. h 1 Ves. 8. d Welford v. Beazely, 3Atk. ■ Moore v. Hart, 1 Vern. 110- 503. Welford and Beazeley, 3 Atk. e Clinan v. Cooke, 1 Sch. 503. Cooke v. Tombs, 2 Anstr, and Lefr. 33. overruling what 420. is saidin Binstead v. Coleman, SPECIFIC PERFORMANCE OF AGREEMENTS. 299 contract in Writing signed within the Statute of Frauds, is not decided k . Where there is a compleat Agreement in writ- ing, and a person who is a l J aity and knows the contents, signs as a Witness only, this has held a sutHcient signing within the Statute'; but altering the draft of the conveyance, has not been considered toamountto a signing of the Agree- ment m ; and though the Party writes the Agree- ment, it is ineffectual, unless it be also signed ". With respect to the signing of an Agreement, by an Agent lawful/// authorized, it has been holden, that the authority of the Agent need not be in writing . An Auctioneer, on the Sale of Estates by Auc- tion, is considered as the Agent of both Parties, the Seller and the Buyer ; and his receipt , if it contains in itself, or by reference to something else shews, what the Agreement is, has been con- sidered as a note or memorandum sufficient to satisfy the requisition of the Statute 1 *. There are, however, Cases where, though an Agreement as to Lands is not in writing, it will be decreed to be performed ; as where a parol Agreement has been partly performed, and is k Morison v. Tumour, 18 tit. Contract and Agreement Ves. 175. (H.) Ca. 45. Coles v. 1'reco- 1 AVelford v. Beazely, 3 Atk. thick, 9 Ves. 250. Clinan v. 503 ; and see Coles v. Treco- Cooke, 1 Sell, and Lefr. 31. thick, 9 Ves. 2^4. The note in 7 fast, 5C5, stating m Hawkins v. Holmes, 1 P. that the Agent's Authority Wms. 77. . must be in writing, is a mistake. n Bawd a v. Amhurst, Prec. p Coles v. Trecothick,9 Ves. Ch. 40-'. 252. S. C. MS. Emmerson r. _" V.'aller v. Cox, Vin. Abr. Heelis, 2 Taunt. 38. VOL. i. u6* 300 EQUITY JURISDICTION. admitted, or proved % as it may be in such cases, by parol Evidence produced on the hearing of the cause r , or, on some occasions, before the Master 5 . In these cases, relief is administered on the ground of Fraud 1 , in suffering the Party to pro- ceed on the Agreement, and then, unconscien- tiously, insist on its imperfection, and is a species of Fraud cognizable only in Equity \ It is true, Mr. Justice Buller observed, in one or two cases", that part performance takes a case out of the Sta- tute, at Law, as well as in Equity; but he after- wards abandoned so untenable a position w . Common Law Judges, (with deference be it said) have never shone greatly in Courts of Equity. It is not their proper sphere of exertion. The doctrines of Equity cannot be well under- stooct, but by long study, and continual practice. Lord Eldon, speaking of Mr. Justice Buller, ob- served, " With all the veneration and respect due to so great a judicial character, the point in which it seems to have failed, is, that he thought too q See Daniel v. Davidson, a doubt arises in the mind of 1C Ves. 249. the Court, or Witnesses being r 1 Ves. 221. discredited after the case ha* 6 Allan v. Bower, 3Bro.C. been proved, that an Inquiry or C. 149. S. C. noticed 1 Sch. Issue is directed. and Lefr. 37. Boardman v. l 1 Sch. and Lefroy, 130. Mostyn, 6 Ves. 4C7. but see u 1 Bro. C. C. 417. 3 Bro. C. C. 149. and 1 Ball v Brodie v. St. Paul, 1 Ves. end Beatty, 265. and Savage jun. 333 ; and see 1 Bro. C. C. against Carroll, 1 Ball and 417. Beatty, 551. in which case it is w See what is said in Cooth laid down that an Inquiry or v. Jackson, 6 Ves. 39. O'Her- Issue is only directed, where lihy v. Hedges, 1 Sch. and from contradictory Evidence Lefr, 123. BPEGIFIC I'EBl'OUMANCEOf AGREEM ENTS. 'i"l confidently, that lie understood all the doctrine of the Court of Equity \" The first case in which reli« -i' was given on the ground of part-performance, is frequently laid* to have been Foxcraftv. Ly*ter*;but from some Reports of that Case', it rather seem* to have proceeded on another, and a very indisputable ground ; on the fraud of the Heir, in preventing the Lessor, who was dying, executing a Lease. Certain it is, however, that very soon after the passing of the Statute ofFrauds b , this species of equitable relief was administered: but whether •wisely, or not, has, sometimes, been questioned. If, therefore, it be clearly shewn,what the Agree- ment was, and that it has been partly performed ', that is, that an act has been done, not a mere vo- luntary Act% or merely introductory or ancillary to the Agreement d , but a part execution of the substance of the Agreement, and which would not have been done unless on account of the Agree- ment', an Act, in short, unequivocally referring to, and resulting from, the Agreement ; and such, that the Party would suffer an Injury, amounting to Fraud f , by the Refusal to execute that Agrec- * Marquis of T^wnshend v. h 20 Ch, 2. c. 3. room, ti Ves. 833. c As in Robertson agairist Sr. r See what Lord Redesdale John, 2 Bro. C. C, 140. says, Bond and Hopkins, I Sen. d See I Bro. C. ('. 412. and Lefr. 403. and Mitfqrd's Lacon v. Mertins, 3 Atk. 4. Treatise. e Cooke v. Tombs, 2 Anstr. ■Citi 12 Vera. 456. 424. Gunter against Hal 1 See the Report of the ease, Ainbl. 586. in Gilbert's Eq. Reports, p. 11. ' Clinan v. Cooke, 1 Soli, and Colles' Pari, cases, 10S. and Lefr, 41. 502 EQUITY JURISDICTION, ment: in such Case, the Agreement will be decreed to be specifically performed 5 . Wherever, therefore, a parol Agreement is sought to be established on the ground of part performance, if the Statute is pleaded, the answer must deny the acts of part performance h . The ground on which the Court acts in these cases is, as before observed, Frauds in refusing to perform, after performance by the other Party ! ; and not because the Agreement was not within the original conception of the Statute k . The allowing any other construction upon the Statute of Frauds would be to make it a guard and pro- tects n to Fraud, instead of a security against it, as was its design and intention 1 . It was the opinion of Lord AlvanUy, that the Court had gone rather too far, in permitting part performance and other circumstances, to take cases out of the Statute, and then, unavoidably perhaps, after establishing the Agreement to admit parol evidence of the contents of that Agreement. " Part performance might be evi- dence of some Agreement, but of what must be left to parol Evidence. I always thought/* says he, " the Court went a great way. They ought not to s Gunter v. Halsey, Ambl. ' Whitbread against Broek- 586. Vid. Frame and Dawson, hurst, 1 Bro. C. C. 413. Hare 14 Ves. 38(5. and Lewis and v. Shearwood, 1 Ves. jun. 243. Clitherow.MS.The case contra. Buckmaster v. Harrop, 7 Ves. Ilollis and Whiting, 1 Vern. 346. 151. cannot be considered as k 1 Bro. C. C. 413, 417. Law. ' Walker v. Walker, 2 Atk, h Bowers v. Cator, 4 Ves. 91 . 100. Wills v. Stradling, 3 Ves. 378. SPECIFIC PERFORMANCE OF AG RtEM tNTS. 303 have held it Evidence of an unknown Agreement, but to have had the Money laid out, repaid. It ought to have been a Compensation. Those c:ases are very dissatisfactory. It was very right to say, the Statute should not be an engine of Fraud: therefore compensation would have been very proper. They have, however, gone farther ; saying, it was clear, there was some Agreement, and letting them prove it: but how does the circumstance of a Man having laid out a great deal of Money, prove that he is to have a Lease for ninety-nine years ? The common sense of the tiling would have been to let them bring an Action for the MGney. / should pause upon such a case™ ." Impressed, probably, with similar feel- ings, Lord Eldon, early in that judicial career which has immortalized him as a Lawyer, ex- pressed a determination not to go one iota fur- ther than the cases". The cases are numerous in regard to what acts are to be considered as a part performance . If the Vendee, on a parol Agreement for the Sale of Lands, is let into Posscssionby the Vendor, this has been held to amount to a part perform- ance q ; a fortiori, if the Party enters and improves * Foster v. Hale, 3 Ves. 7 12. ° See 3- Ves. Jim. 39. and etc; and see what is said in the cases there cited. Mills v. Stradliug, 3 Ves. 382, < Butcher v. Stapely, 1 Vera. and in Attorney General v. 365. Py key. Williams, 2 Vera lUiv, 1 Ves. '221. 455. Wheeler v. Newton, Tree-. "Cooth v. Jack son, G Ves. Cjl. 16. Lockey v. Lockey, 32, 37; and see whdt is said Prec, Ch. 519. 2 Str. 783. and by Lord Redesdale, in 2 Sen. the cases cited in die note, and Lefr. 5. 1 Atk. 12 : and see Lacon v. Mertins, 3 Atk. I, 30i EQUITY JURISDICTION". them r , or builds'; and if what was the parol Agreement clearty appears, it will be enforced *. The payment of Money, either in part, by way of earnest, or, in full, for the purchase, is not, it seems, deemed a part performance v ; but the cases are contradictory. In some, it has been holden that if a substantial part of the purchase Money is paid, that is a part performance, but that a small sum paid, the twentieth part of the purchase Money, for instance, is not w ; but Lord lledesdale appears to have thought, that payment of the purchase money will, in no ease, amount to a part performance x . Giving of Directions for Conveyances, and taking a view of the Estate, have been resolved, not to be a part performance* '. Putting of a Deed into the hands of a Solicitor to prepare a Conveyance, is not a part performance of a parol Agreement to convey \ And where there was a parol Agreement for a compromise, and a division of the Estate by Arbi- tration, acts done by the Arbitrators towards the execution of their duty, such as surveying,, &c. were not considered as acts oi'pai t performa^ic^ r Hawkins v. Holmes, IF, • fr. p. 40. and same book, Wms. 770. p. s Savage and Foster, 2 Mod. Mai te v. Melbourne, 37. s.720, LaconandMertius, 1 Boardman v. Mostyn, G 3 Atk. 4. Ves. 470. x Clinan r. Cooke, 1 Sch. v Lord Pengall and Ross, and Lefr. 40. and the cases 2 Eq. Abr. 46. Leake and mentioned in note (a). Morris, 2 Ch. Cas. 135. Sea- ' * Clerk v. Wright, 1 Atk. good and Meale, PrecXh. 5(50. 1 2. but see Freeman 281. and the * Redding v. Wilkes, 3 Bro. authorities mentioned in the C. C. 400. Cook v. Tombs, note to Clinan v. Cooke s 1 Sch, 2 Anstr. 425. *Cooth v. Jackson^ 6 Ves. 4L SPECIFIC PERFORMANCE OF ARRF.r.MrSTS. 306 If a Eill be filed tor the Specific Performance of a parol Agreement, and the Defendant admits the Agreement, and submits to perform it, it will of course be decreed ''. JUit if there be a Plea of the Statute of Frauds, and no parol Agreement confessed by the answer, the Court has in no case compelled the Defendant to execute it c . And though the Agreement is admitted by the answer, (and it seems it must be admitted or denied '\) yet, if the Defendant insists upon the Statute of Frauds, a Specific Performance will not be enforced °. But if the Defendant admits the parol Agreement, and does not insist on the Statute, he is taken to have renounced it, and a Specific Performance will be decreed f . It seems questionable, whether an Agreement for a separate Maintenance, will be enforced, where such Agreement rests in articles between the Husband and the Wife. The Spiritual Court, being considered as having exclusive cognizance of the rights and duties arising from the state of .Marriage. r ' Ambl. 586. Spurrier v. Fitzgerald, (5 Yes. 548. c Whitchurch against Bevis, 2 Bro. C: C. 667. Whatey v. Bugenal.G Bro. P. C. 45." d See Child and Godolphin, mentioned 2 Bro. C. C. 550. and the principal case. * Roue v. Teed, 14 Yes. 375. Cooth v. Jackson, Ves. SO. Blagdeu v. Bradhear, 12 Ves. 471. Prec. Ch. 208. Cilb. Eq. Cas. 35. contra Child v. Godolphin, 1 Dick. 30. f Cooth v. Jackson, Ves. 37 ; and see Moore v. Edwards, 4 Ves. 24. Whitchurch against Bevis, 2 Bro. C. C. 550. Whit- bread against Brockhurst, 1 Bio. C. C. 410. Attorney General v. Day, 1 Ves. 220, 1. but see Croyston and Banes, Prec. Ch. 2G0. S. C. 1 Eq. VOL. I. 306 EQUITY JURISDICTION. The Court has never decreed an establishment of a separation between Husband and Wife, and compelled a Husband to pay a separate mainte- nance to his Wife s , without some Agreement for Abr. ID. Symondson v. Tweed, Prec. Ch. 374. S. C. 1 Eq. Abr. 19. 1 During the Usurpation the Court of Chancery exercised a Jurisdiction in casesof alimo- ny, there being then no spiri- tual coii'ts, nor any toleration of the civil law; but upon the reestablishment of courts chris- tian, the Court of Chancery no longer retained this Juris- diction ; insomuch, that when afterwards a Bill was brought for Alimony in the Court of Chancery, a demurrer was allowed. Vid. 2 vol. Shower's Rep. p. 283. and the cases there cited. From the decision of the Lords Commissioners in cases of alimony, an appeal lay to the Protector. In a tract published in 1054, entitled, "Alimony arraigned, or the Remonstrance, &c. printed in 1054, Q°." there is given the petition to the Lords Commis- sioners and the decree of the Commissioners, The mode of proceeding on these occasions appears on the face of the decree. " Lords Commissioners. Saturday, 24th of July 1052. between Theodosia Ivie, plain- tiff, and Thomas Ivie, her hus- band, defendant. Whereas, the Plaintiff hav- ing exhibited her petition (against the Defendant her husband,) to be relieved for alimony, unto which, the de- fendant having put in his an- swer, divers witnesses were examined by Commission, an4 others were, (by their Lord- ships' directions,) also examin- ed by the Register, in the pre- sence of counsel on both sides ; and for the better clearing of the matters, and satisfaction of their Lordships, therein ; their Lordships were also pleas- ed themselves to examine seve- ral witnesses, viva voce, and the cause having taken up many days in hearing (after much debate, and pains spent herein ; and upon full and deli- berate hearing of what could be offered on both sides ; and upon reading of the said de- positions, and of the indenture, made upon themarriage, where- by the estate of the Plaintiff's father is settled upon Sir John Brampstone, Knight, and Wm. Booth, Esq. to the uses in the said indenture declared,) their lordships were fully satisfied that there is good cause to give allowance for alimony to the Plaintiff; and do order and decree, that the Plaintiff have paid unto her, the sum of £300 by the year, which their Lordships intend to be had and raised out of the Plaintiff's father's estate, so settled in the said trustees as aforesaid until further order. And do therefore order, that the said Defendant, and the said trus- tees, shall authorise, or permit and suffer the Plaintiff, or whom she shall nominate and appoint, from time to time, SPECIFIC PERFORMANCE OF AGREEMENTS. 307 that purpose ; but Lord Hardivickc seems, though reluctantly, to have thought such an Agreement might be decreed 1 '; and there are cases which enforce that doctrine 1 . Jn one case, and after great consideration, it was determined that, articles of separation may be N specifically enforced, at the suit of the Wife, and this, though the Husband offered, by his answer, to receive his wife again k ; but that de- cision has been disapproved by subsequent Chan- quietly, and without interrup- tion, to receive the rents and profits of the said lauds : and the several tenants off the pre- mises are hereby ordered to pay the same accordingly, from our Lady-day last; and the said trustees, and the said tenants, in so doing, are to be saved harmless, by the decree of the court. But in case the said lands arc in a greater yearly value, than the said ,£,300 per annum : and that the said De- fendant, shall at any time, sig- nify so much unto t!» ir lord- sbips, and undertake -and suffi- ciently secure the payment of £300 per annum (quarterly, unto the said plaintiff by equal portions, to begin from our 1 ady-day last, then the said defendant is hereby decreed to pay unto the said plaintiff, the said yearly sum of j£300 accordingly, until further or- der a3 aforesaid. And that the said trustees are in such case to permit and suffer the said defendant and his assigns to receive and enjoy the rents and profits of the said fa- her's estate, (any thing herein contained to the contrary in anywise, notwithstanding.) Hob. Dod, Dep. Regis. The defendant considered himself a» much aggrieved by this decree, and brought an ac- tion against a Mr. William- son, who detained his wife, and under the directions of Lord Ch. Justice Roles, obtained a verdict for ^100, and an ex- eeution afterwards issued; but he filed his bill in Equity, for an injunction, and it was ob- tained, and thereby the plain- tiff and others were enjoined, under the penalty of £500, against proceeding on the judgment. Upon this, the plaintiff petitioned, " the Par- liament forthe commonwealth of England ;'' but what whs done upon this petition, does, not appear. b Lady Head v. Sir Francis Head, l'Ves. 17. S. C. 3 Atk, 550. ' See for instance, Angieraud Angier, Gilb. Lq. Hep. 152,3. S. C. Prec, Ch. 49(5. Lex Pre- toria, MS. k Guth v. Guth, 3 Bro, G14 : and see Fitzer v, Fitaer, 2 Atk. 511, X 2 308 EQUITY JURISDICTION'. cellors', though not positively overruled. Those marriage cases in which the Court has acted upon an Agreement to separate, have been, in ge- neral, where a third party has intervened, and the agreement was not merely between the Husband and Wife m ; or where a fortune has accrued to the Wife after separation" ; or where there has been Trust Property, obtainable only in a Court of Equity . The Wife, certainly, is not. bound in any degree by a deed of separation, and a specific performance could not be enforced as against her p . Articles of separation are put an end toby Re- conciliation" 1 : and as against Creditors/ it seems, the Court will never decree an agreement for a separation r , unless in those cases where Trustees undertake to indemnify the Husband against the debts of the Wife, for that forms a valuable con- sideration s . 1 See Legard v. Johnson, SVes. 361. Lord St. John v. Lady St. John, 11 Ves. 532; and see Wilkes v. Wiikes, 2 Dick. 791. "' Sterling v. Crawley, 2 Vern. 385. Stephens and Olive, 2 Bio. C. C. 90. Comp- ton against Collinson, ib. 386: and see the observation, in Legard v. Johnson, 3 Ves. 359. and in Lord and Lady St. John, 11 Ves. 532. see also Cooke v. Wiggins, 10 Ves. 191. n bull and Montgomery, 2 Ves. 3G0 ; and see the ob- servation in Legard and John- son, 3 Ves. 360. ° Sidney v. Sidney, 3 P. Wms. 269. observed on ia Legard and Johnson, 3 Ves> 350. 360. p See Lord St. John v. Lady St. John, 11 Ves. 533. q Lord St. John v. Lady St. John, 11 Ves. 537. r Lord Hard wick e expressed a doubt as to this in Fitzer v. Fitzer, 2 Atk. 514; but see the observations and decision in Legard v. Johnson, 3 Ves, 361. * Stephens v. Olive, 2 Bro. C. C. 90. and King v. Brewer, cited ib, p. 93, in note. STECIFIC PERFORMANCE OF ACRtE.MCNTS. 30<) A parol Agreement for an equality of partition, entered into between persons who had a right to contract, and accordingly put in execution, will, though of longstanding, be established. And if a Joint-tenant upon equality of partition, thinks proper to accept of a contingent, uncertain ad- vantage, where one moiety of the Land is of supe- rior value to the other, it will not vacate the Agreement" 1 ; but the Agreement of the Husband will not bind the Inheritance of his Wife b . A Covenant to renew a Lease, at the request of the Lessee within the Term, will be enforced, even in favor of the Executor of the Lessee who died before any request made . A clear contract for the perpetual renewal of a Lease for Lives 6 -, or for Years, will be specifically executed ; but a Covenant at the expiration of one Lease for twenty-one years, to make a new Lease, " with all Covenants, Grants, and Articles, as in the former Lease contained, *' will not be allowed to operate as a Covenant for perpetual Renewal \ It has been holden, that upon a Bill for the specific performance of an Agreement for a Lease, the Court cannot apportion the price according to the time already expired f ; but, it appears, that ■ Ireland v. Rittle, 1 Atk. the subject of this case. 642. Bridges v. Hitchcock, 1 Bro. Mb.Sed. vid. Co. Pitt. 171. a. P. C. 522. Bettesworth Against c Hyde v. Skynner, 2 P. Dean of St. Paul's, 8 Bro. P. C. Wins. 190. 389. Somerville v. Chapman, d Furnivaland Crew, 3 Atk. 1 Bro. C. C. 63. Trittou a^iinst 83. Foote, 2 Bro. C. C. (j:j(>. Kus- * Moore v. Foley, C Ves. sell v. Darwin, mentioned in 232. Iggulden v. May, 9 Vea. note to 2 Bro. C. C. 639. 325. and see 3 vol. HargraVe's f King v. AYiglituian, 1 Jurisconsult Exercitatioiftj, on Anstr. bU, 310 EQUITY JURISDICTION'. where the Vendor of a Lease has continued in pos- session, and in consequence of a Suit, time has elapsed, Interest will be ordered to be paid by the Purchaser, on his Purchase Money ; and Rent in respect of his Possession, by the Vendor g . It has long been determined, that a Man may be decreed to procure his Wife to acknowledge a fine of mortgaged Lands h ; or to procure his Wife to join in a Surrender of a Copyhold : and with this doctrine, recent cases agree 4 . And if a Feme Covert agrees to join with her Husband in making a Surrender, or in levying a Fine, and he dies before it is done, a Court of Equity will compel her to perform the Agreement k ; her conscience being bound. So, if a Husband possessed, in right of his Wife, of a term of years, agree with another, for an under Lease, but dies before the Lease is executed, the Agreement will yet be specifically performed against the Wife 1 . If a Husband covenanting for his Wife, states an absolute impossibility to perform his Covenant, and offers to put the Party in the same situation as if the Agreement had never taken place, the g Dyer v. Ilargrave, lOVes. procured; see also Berry v. 505. Wade, Finch. p. 180. h Rust v. Whittle, Tot. 94. k Baker v. Child, 2 Vein. and Griffin v. Taylor, ib. 100. 01. Seu vid. what is said of ' Morris v. Stephenson, 7 that case, Eq. Cas. Abr. 02. Ves. 474; and see Hall v. pi. 2. Hardy, 3 P. Wins. 187. and ' Steed against Cragh, 9 Barringtoa v. Rome, 2 Eq. Mod. 43. Druce v. Dennisou, Abr. 17. PI. 7. 5 Vin. 547. the Ves. 394, 5. case of a Fine agreed to be SPECIFIC PERFORMANCE OF AGREEMENTS. 311 Agreement, it seems, would not be attempted to be enforced" 1 . In one case the Husband was decreed to join in a Conveyance, and procure his Wife so to do ; and to induce him, an alternative was added, viz. that if he did not in the time and manner directed by the Master, perform it, he should account to the Plaintiff for the Money received in respect of the Agreement". It seems, however, very doubtful, whether under a Contract by a Husband alone, to sell the Lstate of his Wife, the Court would decree him to procure her to join . Lord Coicpcr refused to enforce a specific performance of a Covenant by a Husband, that his Wife should levy a Fine p . In one case, it is laid down that if a Husband agrees by articles under his hand to convey nia Wife's Lands to B., B. may prefer his Bill against the Husband and Wife to compel a specific exe- cution of this Agreement, and if the Wife upon private examination consents, the Court will de- cree it; but it was doubted, whether the Court would decree a specific performance, if the Bill be preferred against the Husband only, because, if the Court should compel the Husband to convey, the Husband would compel the Wife, who is under his power ; and the Wife ought not by Law to ™ See Outread v. Round, Fmery v. Wase, 5 Ves. 8 II 4 Yin. Abr. 20)i. pi. 4. iVlorrii C on Appeal, b VeS 84S: v. Stephenson, 7 Ves. 478. p Outread v. Round, Yin. n SeeSedgwickev. Hai grave, Abr. tit. Baron and F^me, 2 Ves. 57. (11. b.j Ca. 4. S. C. 2 Eq. Abr. •Gilbert's Lex Pretoria, 245, 145, 312 EQUITY JURISDICTION. convey by means of any compulsion from the Husband ''. The specific performance of Covenants is frequent- ly sought in Equity ; and where a Person seized of Lands, agrees by Articles, to settle Lands of a certain value, the Articles have been held to be a lien on the Lands, of which such person was then seized, though no particular Lands were mentioned in the Articles r . So, where Tenant for Life, with power to make a Jointure of £500, in consideration of Marriage, and of .=£ 10,000, covenants to make such Jointure, but dies without doing it, it has been held that the Articles are a lien on the Es- tate, and that by the execution of them, the Covenantor became a Trustee for the Feme 5 . Where a Husband is bound by his Covenant, or his Trustees arc bound with his consent, and with his Money, to purchase and settle Lands, and he does purchase Lands of less 1 , equal", or greater value than the Sum he covenanted to lay out w ; but does not settle it, he is (unless the Land be Copyhold 71 ,) presumed to have made the purchase for the purpose of the Settlement y ; for it is a q See Wheeler nnd Newton, ' See 2 Atk. 035. Lech mere Gilb. Eq. Rep. S. C. Pvec. ( h. and Carlisle, 3 l\ Wms.228. 10. Gilb. Lex Pretoria, MS. ' Wilcox v. Wjlcox, 2 Verjr, and see. Davis v. Jones, 1 New 558. relied on 2 Atk. 034, Rep. 267. Deacon v. Smith, 3 Atk. 323. r Houndell v. Breary, 2 w See Garthshore v, Chulie, Vern. 482. coniirmed, 3 Atk. 10 Ves. 9. 327, 9. Coventry v. Coventry, * Attorney General and Gilh. 1CS. Whorewood/l Ves. 541. s Lady and Lord Coventry, y Lench v. Lench, 10 "Ves. 2 Mod. 19. 510; see also Wilson and Fore- SPECIFIC PERFORMANCE OF AGREEMENTS. 313 Rule that where a Man is bound to do an Act, and he does what may enable him to do the Act, it is taken to have been done by him with the view of doing that which he was bound to do \ The reason why it is held a satisfaction : n these cases, seems to be, that the Court will not draw out of the Personal Estate to the prejudice of the Widow and younger Children, a Sum of Money, which would be a double Provision for the eld- est Son \ These cases of satisfaction, however, depend upon the Intent of the party, and Evidence is admissible to shew, that a purchase was not made in performance, or part performance of the Cove- nant b . If the Purchaser sells or mortgages the Lands, it will be considered as Evidence that they were not meant to be in satisfaction of the Covenant c ; but a Devise will not have such con- struction d . In one case it was held that, if there be a con- tract to settle a partiru/ar Estate, and there is a breach of the contract, it is a question of damages, and an issue must be directed to try what the damages are, in which it was said to differ from a contract to purchase Lands, in which case Lands man, imperfectly reported in 80. and see Weyland v. Wer- 2 Dick. 59:3. but stated from land, 2 Atfc. («4. the Ue-ister's book, 10 Ves. * See Lee and Cox, 3 Atk.' 01'.), 520j Leehmere and Lech- 421. mere, For. 80. b Garthshore v. Chalie, 10 7 Sowtleii v. Sou-den, 1 Bro. Ves. 10. C. C. 58:}. s. C. mentioned in c Deacon v. Smith, 3 Atk. note, 3 P. Wms. 228. I. etch- 320. mere v. Letchinere, Forester d Tooke v. Hastings, 2 Vern. 97. 314 EQUITY JURISDICTION. would be decreed to be purchased e ; but previous cases appear to have established it as the doctrine of the Court, that, though a Covenant to settle or convey particular Lands, would not, at Lau\ create a lien upon the Lands ; yet, in Equity, such a Covenant, if for a valuable consideration, would be deemed a specific lien on the Lands, and a performance of the covenant decreed against all persons claiming under the Covenantor, ex- cept Purchasers for a valuable consideration, and without notice of such Covenant 1 . If one covenants, before Marriage, to settle cer- tain Lands on his Wife for life, and afterwards, devises such Lands for the payment of debts, the covenant operates as a specific lien on the Lands. But a covenant to settle Lands of the value of £60 a year, without mentioning any particular Lands, does not operate as a specific lien, but the wifo must come in as a Creditor in general, and the Master will value her Estate for life, and she will be allowed to the amount of that valuation e Where a Husband covenants that Lands set- tled, are of such an annual value, this amounts to a covenant on his part to settle and make good to that extent, in case of deficiency; but the value must be calculated at the time of the Settlement, and not to the death of the Husband h . c Wade v. Paget, 1 Bro. Rep. 1GC and at end of Francis* C. C. 368 ; and see Vernon v. Max. cit. 1 Fonbl. Eq. 359. Vernon, 2 P. Wins. 594. n. (d). ( Finch v. Earl of Winch el- « Freemoult v. Dedire, 1 P. sea, 1 P. Wms. 282. Freemoult Wms. 429. v. Dedire, 1 P. Wms. 429. h Speake v. Speake, 1 Vera. Coventry v. Coventry, Gilb. 217. SPECIFIC PERFORMANCE OF AfiREEMEMj, 31j If a Husband covenants to settle on the eldest Son of the Marriage, and lets Lands descend to him in fee, this is, so far, a performance of his covenant*. It is the same, where Lands descend to an Heir at Law, who claims in place of his an- cestor, a sum of Money to be laid out in Land v . All these cases of implied satisfaction, or pre- sumed performance, are where the Husband or Father has done nothing, as in the suffering Land to descend, without any declaration what way he intended they should go. But where a Will is made, and a clear intention discernible, the con- struction must be according to the Will 1 . So, where parties enter into an Agreement as to the produce of Land, the Land itself will be affected by the Agreement. Where, therefore, there was a covenant to appropriate one third of the produce of a real Estate to raise a sum of Money, it was considered not merely as a per- sonal covenant suable at Law, but as creating a lien upon the Land, and the covenantees en- titled to have it specifically performed™. If a sum of Money, say s£500, be covenanted to belaid out in Freehold and Leasehold Property, and the Covenantor dies, it might be a question, no where, it seems, decided, between the Heir and Personal Representative, how muck of the ' See diet. 2 Ves. 41 1. m Legard v. Hodges, 3 Bro, k lb. C. C. 531, and 8. C. on r«- 1 Sir Prime v, Stebbing, hearing, 4 Bio. C, C. 421. 2 Ves. 4 LI. 31(> EQUITY JURISDICTION. money is to be considered as Freehold Property descendible to the Heir, and how much as Lease- hold, belonging to the personal Representative ; but if in such case the Covenantor by his Will makes a general devise of all his Freehold and Leasehold Lands and Hereditaments, this would pass the^oOO". It is observable that where money is agreed or directed to be laid out in Land, to be settled to particular uses, it will, whilst uninvested, be considered as Land in regard to succession, and accordingly goto the Heir of the person intitled to the Inheritance in the Land to be purchased, in the same manner as the Land, if purchased, would have done ; until some person competent to dispose of the Lands under the limitation of the uses, shall clearly^manifest and decide his in- tention to terminate the realizing Trust, and to dispose of, or have the uninvested fund again considered as mere personal Property p . And where a sum of money is given by Will, and directed to be laid out in the purchase of Lands, or of Lands in a particular county, and after they are bought to be settled upon such and such Persons ; if a Bill is filed, the course of the Court is, to direct a purchase, and the pro- duce of the money to go, as the Land itself, till n See Guidot v. Guidot, TBro.P. C. 548. Toml. Ed,; 3Atk.254. and see Earlom v. Sounder;, °See Attorney General and Ambl. 242. Bradish v. Gee, JUilner, 3 Atk. 1 14. Ambl. 229. * Palteney v. Darlington, SPr.CIFIC PERFORMANCE OF AGREEMENTS. 317 purchased q . So, if there be a direction by Will to purchase a particular Estate, which is swallow- ed up by an Inundation, as happened in Essex: or it* the direction is to purchase an Estate in such a county, ami it cannot be procured, the money will not go to the Executors, but in such manner as the Rents and Profits would do, where the Land is purchased". And where money is agreed by articles to be laid out in Land, the Party who would have the sole Interest iu the Land when bought, may elect to have the money paid to him, and that it shall not be laid out in Land\ And it is the same in case of a bequest of money to be laid out*. A wife is examined apart from her Husband as to the disposition of money devised to be laid out in Land for her and her Heirs v , or for her in Tail, Reversion to her in fee, whether she would Teceive the money, or have it laid out in Land. If she elects to take it in money, an enquiry is directed, whether she has a Settlement w . And where money is to be laid out in Land, to be settled on one for Life, with Remainder in Tail, the Court will pay out the Money upon the application of the Tenant for Life and the Te- « Earl of Coventry v. Co- * Seeley v. Jago, 1 P. Win?, rentry, 2 Atk. 39(i. S. C. best 389. reported at the end of Francis's v Pearson v. Brereton, 3 Atk. Maxima inEq. 71. r 2 Atk. 3G9. and see 10 ■ Binford v. Borden, 1 Ves. Ves. 610. Jan. 512; and see Oldham v. s Benson v. Benson, 1 P. llu-hcs, 2 Atk. 453. Traftbrd Wms. 130. v. Boehm, 3 Atk. 447. Cun- ningham v. Moody, 1 Ve9. 17t>. 318 EQUITY JURISDICTION. Bent if) Tail x , provided they are not Infants r ; but the Wife of the Tenant in Tail, as she would be entitled to Dower out of the Land, if the Money were laid out, must give her consent 2 . If, however, the Estate to be purchased was to be settled on A. for Life, Remainder to B, in Tail, Remainder to C in fee, the Money was not directed to be paid on an application by A. and B. because of the contingency to C. but if the remainder was to B. in fee, or to A. in Tail, re- mainder to him in fee, then on such application, the Money was paid a , as it was also, where those in Remainder consented h . The old rule was > to decree the Money to one who would be Tenant in Tail, if laid*outin Lands, with remainders over ; but Lord Cowper altered that doctrine % and held that the Remainder- man should have his chance, as he could not be barred but by Recovery, which required time, and would not direct it to be paid in Money ; and the accident of the death of the Tenant in Tail in that case, before a Recovery shewed the Remain- der-man's interest in so glaring a light, that it established the precedent (1 . But where the re- mainder can be barred by Fine, the Court will decree the Money e . ¥ Amlcr v. Amler, 3 Ves. » Short v. Wood, 1 P. Wms. 587. 470. Trati'ord v. Boehm, 3 Atk. > Carr against Ellison, 2 Bro. 447. C. C. 50. 1 P. Wms. DO, 130. b Collet v. Collet, 1 Atk. 12. wnd 389; and see Forester, c See Colwall v. Shadwell, 272. 1 P. Wms. 471, 485. ■ See note G. to Eyre's case, d 1 Vcs. 170. 3 I\ Wms. 14, e lb. Sl'ECIFIC PERFORMANCE OF AGREEMENTS. 319 And now, by the Statute (39 and 40 Geo. 3. c. 56.) it is not necessary to have such Money actually invested in Land, in order to bar the Estate Tail and Remainders over ; but upon the Petition of the Tenant of the first Estate Tail, and of, the owner of the antecedent particular Estate, if any f , in the Lands, Courts of Equity may order the Monies subject to such Trusts to be paid to the Petitioners. But if it be a doubt- ful question what Estate the Party is entitled to, the Court will not decide it upon an ex parte Pe- tition under this Act g . And before an order can be obtained under the Act, the Court takes care to see, by a Reference to the Master for that purpose h , that the Fund is clear; and a Petition will not be heard on the last day of Term; but to obtain the order in Term, the application must be made at such a period of the Term, as to give sufficient time for a Recovery to be suffered l . If the application is made in the vacation, the Money is ordered to be paid to the Party in case he should be living on the se- cond day of the ensuing Term k . Having considered those cases in which a specific performance is decreed, we may now pro- ceed to notice those instances in which a Specific Performance has been refused. f In such case there must be ' Ex parte Frith, 8 Yes. COO. two petitions, Baynes v. L Es parte Bennet, Ex parte Baynes, 9 Ves. 402. Dolman, 6 \>s. 110. and Vid. * Ex parte Sterne, 6 Ves. note to Fletcher v. Toilet, 150. 5 Yes. 12. in note. b Ex parte Hodges, G Yes. 57G. 320 EQUITY JURISDICTION. The Court will not decree a specific perfor- mance of contracts of every description. It is only where the party wants the thing in specie 1 , and where the legal remedy is inadequate or defec- live, that a Court of Equity interferes 111 . It is on this ground that, generally speaking, (as before adverted to) a Bill will not lie for the specific performance of an Agreement respecting diattels ; and on the same principle a Court of Equity has refused to decree a specific perfor- mance of a covenant to make good a gravel pit, for complete Justice could be done at Law in an action for breach of the contract u . It has been said (though there are early dicta to the contrary ,) that a specific performance of an Agreement to build an House will not be de- creed 11 ; but Lord Hardwicke seems to have thought differently % and decreed a specific performance of a covenant to rebuild, though he would not of a covenant to repair"; and it seems that if on a covenant to build, the transaction is in its nature defined, a specific performance would be decreed ; but if it is loose and undefined, and it is not ex- pressed distinctly what the building is, so that the Court could describe it as a subject for the 1 Errington v. Aynesley, 8 Yes. 1G4. contra, Holt v. 2 Bro. C. C. 341. Holt, 2 Vein. 322. and diet. m Mint v. Brandon, 8 Ves. 1 Ves. 401. Ui3. <«3Atk. 515. n lb. 159. Scliolefield v. ' City of London v. Nasi), Whitehead, 2 Vern. 127. 1 Ves. 12. S. C. 3 Atk. 512, See ante, p. 267. see Mosely v. Virgin, 3 Ves. p See lucas against Com- 185; Hill and Barclay, 16 Ves, merford, 3 Bro. C. C. 107. J 84. as to covenant to re- fi. C. 1 Ves. Jun. 230. Erring- pair; and see Whisler and ton against Aynesley, 2 Bro. Mainwain, mentioned 3 Wood, C C, 313. Flint v. Brandon, 434. in note. 6PECIFIC PERFORMANCE OF AGREEMENTS. 321 Report of the Master, the Jurisdiction docs not apply \ A Bill will not lie for a specific performance of an Agreement to refer to Arbitration l . If an Estate be sold under a Decree, a Bill for a specific performance will not lie, but the Pur- chaser must proceed under the Decree*. A Party calling for the aid of a Court of Equity, must come, as it is said, with clean hands w . A Defendant, therefore, to a Bill for a specific per- formance of an Agreement, is allowed to resist it, by shewing, that under the circumstances, the Plaintiff is not entitled to the prayer of his Bill, as by evincing, there has been an Omission or Mistake, in the Agreement x , or that it is uncon- scientious*; or Fraud, or Surprize 1 , or that there has been Concealment \ Misrepresentation b , or other unfairness", ( intoxication, for instance d , ) attend- ing it : and in these cases parol Evidence of such circumstances is permitted ; for though parol Evidence is inadmissible on the part of a Plaintiff, ' Mosely v. Virgin, 3 Ves. C. C. 326. alluded to in Mort- 185. locke v. Buller, 10 Ves. 305. 1 Street v. Itigby, G Ves. * Shirley v. Stratton, 1 Bro. 81S. C. C. 440. Olfield v. Hound, T Anne.-doy v. Ashurst, 3 P. 5 Ves. 508. Wffls. 282. " Cadman v. Horner, 18 Ves. " Caduiauv. Horner, IS Ye?. J 1. Buxton v. Lister, 3 Atk. 11. 386. Phillips v. Duke of Bucks, x Jovnes v. S(atliarn,3 Atk. 1 Vern. 227. Howard v. Ilop- 388. Woolamv. Ileum, 7 Ves. kins, 2 Atk. 370. 211. see 1 Ves. and Bea. 532. c Savage v. 'Taylor, For. Mason v. Armitage, 13 Ves. 234; anil see Child v. Daw- 25. 1 ridge, 2 \ erq. 71. Scott v. y Vaughan against Thomas, Murray, 1 Ves 2. 1 Bro. C. C. 556. a C agg v. Holme, mention- * Clowes v. IiigLdnson, 1 Ves. ed in note to Cooke v. Clay- 52G, 7. Marquis Townshend worth, IS Ves. 14. and ap- V. Sim groom, 6 Ves. 328. proved (ib.) p. 15. but see Twining v. Morriee, 2 Bro. ante, p. 238. etc. VOL. I. X 3-22 EQUITY JURISDICTION. > to explain, add to, or vary a written Contract", (except incases of Fraud 1 ,) it is admissible on the part of a Defendant to a Bill for a specific per- formance, to shew circumstances, dehors, indepen- dant of the Writing, making it inequitable to in- terpose for the purpose of a specific performance. AVhere, therefore, on the face of the Agreement a specific sum was to be given for timber, but it was shewn by parol Evidence that the Defendants were induced to give that sum, upon an untrue Representation, that it was valued by two Timber Merchants, it was not enforced s . So, where an Agreement was to pay so much Rent, but by the Evidence it appeared the Defendant was induced so to agree, because she thought from the Plain- tiff's false representation, it was the rent he paid, a specific performance was refused' 1 . So, in a case, where the Defendant proved that, at the time the Agreement was executed, there was a parol Agreement by the Plaintiff, upon the faith of which, the Defendant executed, which parol Agreement had been unperformed, a specific performance in favour of the Plaintiff was refused', Where an Agreement lias been unfairly ob* Ramtbottom v. Gosden, Coles v. Trecothiek, 9 Ves\ 1 Yes. and Bea. 166 ; and see 240. Winch v. Winchester, what is said in Butler v. Cooke, 1 Ves. and Bea. 375. Clowes 1 Sch. and Lefr. 39 ; and set and Higginson, 1 Ves. and Bea, Meeresv. A null, 3 Wjls. 275. 520,7.* " l'i nn v. Lord Baltimore, 1 Ves. ' Baker v. Paine, 1 Ves. 456, 451. Baker v.Payne, 1 Ves. • Pembei» v. Matthews, 1 Bro, 400. Woolam v. Hearn, 7 Ves. C. C. 52. 211, 219. Robson v. Collins, « Buxter v. LisUr, 3 Atk. 7 Ves. 139 ; and see Marquis 383. Townshend v. Stangroom, * Woollam v. Ileum, 7 ^ es, Ves. 328. Rich and Jackson, 219. 4 Bro. C. C. 514. Judgment ' Clark v. Grant, 14 Ves. more lullv given. Ves. 33(3. 519. SPECIFIC PERFORMANCE OF AGREEMENTS. 3"2J tained, and the Party has been in possession, and made lasting Improvements, he has been allowed for them, on consenting to deliver up the agree- ment and account for the Profits, but not it" he goes to Law, and fails there k . In the case of articles, if they appear unrea- sonable, or if even some parts of them appear un- reasonable ', or founded on a fraud, or it would be unjust or unconscionable to give assistance, a Court of Equity will not enforce them m . So, ifan Heir sells a Reversion in the life of his Father at an under value, the Court will not, in favor of such a Purchaser, decree a specific performance ofa covenant for further assurance n . An Agreement may be resisted on the ground of a parol icaivcr"; but the proof must be very clear 1 ". If variations in an Agreement, by Parol, be so acted upon, that the original Agreement can- not be enforced, without injury to one party, that circumstance would be a bar to a specific per- formance of such original Agreement* 1 ; but varia- tions, verbally agreed upon, are not sufficient to prevent the execution ofa written Agreement, if the situation of the Parties, in all othef respects, remains unaltered . k Savage v. Taylor, For. 336. ij i ote Cibbons v.Caunt, 2:34. 4 Ves. 8*8. Sedvide Woollam 'See 3 Atk. 190. and Hearne, 7 Ves 511. "' Young v. Clerk, Pieced. p Buckhouse and Crosby, Ch. 53& 2 Eq. Abr. 33. " Johnson v. Nott, 1 Yern. q Seethe case in 2 Eq. Abr. 271. 48. pi. 10. unci in Yin. Abr. 8 Goman v. Salisbury, 1 Tit. Contract and Agreement, Yern. 240. Price v. Dver, (H.) Ca. 38. and Legal and 17 Yes. 856. Legal and Miller, Miller, 2 Yes. 299. 2 Yes. 299 ; and see this case r See Prii;e and Dyer, 17 cited by the Chancellor, Ves. Yes. 3U4- 324 EQUITY JURISDICTION. An Agreement, if impeached, must be so, at the time of its commencement^ nothing subsequent can impeach it s : a failure in a speculation forms no ground to resist a specific performance *. There are, however, cases, where, when a specific performance would be attended with great loss and hardship to the Defendant, the Court has not directed a specific performance, but has di- rected an Issue to try what damages the Party has sustained by the nonperformance of the Agreement u . In Family arrangements, particu- larly, the Court has held Parties to Agreements which strangers would not have been bound by v ; but, in general, the Court will not hold parties acting upon their rights, doubts arising as to those rights, to be bound, unless they act with full knowledge of all the doubts and difficulties that arise : but if Parties with full knowledge act upon them, though it turns out that one gains a great advantage, if the Agreement was fair and reasonable at the time, it will be binding 1 *. It lias been held that the Court will enforce such an Agreement, though it turns out that the Parties acting upon a wrong opinion of Counsel., were mistaken in point of Law x . * 1 Atk. 404. 1 Atk. 10. Can v. Can, 1 P„ * Adams against Weare, Wins. 727. bnt see Davy v. 1 Bro. C. C. 5(i ( J ; and see Barker, 2 Atk. 491. where it i* Mortimer v. Capper, 1 Bro. said, that where any extraor- C. C. 150. dinary advantage happens by u City of London v. Nash, an accident, it is in the dis- 3 Atk. 516. cretion of the court to decree T Stockley v. Stockley, 18 a specific performance. Ves. 31. Stapilton v. Stapilton, ■ Gibbons v. Caunt, 4 Ves. 1 Atk. 1. 849. * Stapilton v. Stapilton, STECIFlC PERFORMANCE OF AG IlEEMENTS. 323 No Agreement will be enforced that is illegal; as, for instance, it be founded in champerty* , or the Agreement be to stifle a prosecution for Felony 2 ; no claims being allowed which cannot be sup- ported, except through the medium of an illegal Agreement*. Nor does the Court ever do so" fruitless a thing, as to decree a specific perfor- mance of acts, impossible to be done. In such case it leaves the party to his remedy at Law b . A Voluntary Conveyance is good- against the Party making it, though cancelled % and against all subsequent voluntary conveyances, whether by Deed a , or Will % though the devise be for the payment of debts'"; for the Court, as it hath been said, " will not loose the fetters the Party hath put upon himself, but he must lie down under his own Folly s ." As against Purchasers for a valuable consideration, and Creditors, it is (as hath been shewn 1 ',) bad ; and if a voluntary- Settlement is made, and afterwards a Sale is made to a Purchaser, who even has notice of the volun- tary conveyance, there is no Equity to apply to the Court to lay out the purchase Money to the same uses, as the voluntary conveyance ; not even, though there was an express covenant to >' Powell r. Knowler, 2 Atk, Abr. 475. S. C. Prec. Ch. '224, 473. and 2 Vein. 473. z Johnson v. Ogilby, 3 P. d 1 Ch. Rep. 173. W ms. 279. e See ease determined by * Thomson v. Thomson, Lord Somers, mentioned in 7 Ves. 473. Ladv Hudson's case, Prec. Ch. b Green v. vSmith, 1 Atk. 235. 073. f Pale v. Newton, 1 Vcrn, c Villersv. Beaumont, 1 Vera. 4G4. 100, Claveriug and Hill, 1 Etj, « 1 Vera. 101. e ante p. 216. etc. 326 EQtJlTY JURISDICTION. lay out the Money to the same uses '. Nor where a voluntary Conveyance has been made, will the Court injoin the Party from selling k . But a Settlement voluntary at first may become good afterwards : as where a Father settles Lands on a Daughter, and the Husband marries her, in confidence of such Settlement, it may be en- forced 1 . With regard to a specific performance of a voluntary Agreement, there are, as Lord King ob- serves m , Precedents both ways. There are cases in which it has been held that an Agreement under hand and seal, though voluntary, ought to be specifically decreed n ; and on the other hand, it ii .s been solemnly determined that a voluntary conveyance cannot be enforced , the Court never decreeing specifically without a consideration p. The later cases appear to have taken a middle course, and to establish that a Court of Equity will not interfere against volunteers q , unless incases of Fraud r . So, it will net interfere/or volunteers 5 ; 1 Pulvertoft v. Pulvertoft, 18 Yes. 93 ; and see Buckle v. Mitchell, 18 Ves. 112. contra Leach v. Dean, 1 Ch. Hep. 78. k Pulvertoft v. Pulvertoft, 18 Ves. 84. 1 East India Company and Clavell, 1V( .. Ch. 379, 380. S. C. Gilb. R< p. 37. ■ Randall v. Randall, Prec. Ch. 464. "Beardv. Nutthall, I Vern. 427. Husband and Pollard, mentioned 2 P. Wins. 407. Wiseman v. Roper, 1 Ch. Ca. 84. Frank v. Frank, ib ; and gee Edwards v. Countess War- wick, 2 P. Wms. 170. Went- worth v. Deverginy, Prec. Ch. 09. Fursacre v. Robinson, Prec. in Ch. 475 ; and see Peacock v. Monk, 1 Ves. 133. and what is said in Underwood v. HUchcox, 1 Ves. 280. p Penn v. Lord Baltimore, 1 Ves. 450. and see what is said iu Williamson v. Cod- rington, 1 Ves. 514. q Coventry v. Coventry, at end of Francis's Maxims in Eq. ' See Morrice and Burroughs, 1 Atk. 401. s Graham v. Graham, 1 Ves* Jun. 275. 8PBCIFIG I'EitFORMAyer of \< ; i: i r.MENTS. 327 I'- will not enforce the specific performance of a voluntary Agreement*, unless, indeed, in those cases where a specific performance of marriage Articles, has been decreed, even as to Collaterals 1 . Wherever a voluntary D<« <1 is not sufficient to pass the subject out of the Conveyer, it will never be specifically enforced, unless it is supported by a valuable, or at least what Equity calls a meritorious consult ration ; such as the payment of debts, or making a Provision for q Wife or Child". Where the Legal Conveyance is effectually made, as Stock, for instance, transferred", or Lands con- veyed * to a Trustee, the Court will execute the Agreement, as against the Trustee, and the Author of the Trust y ; unless where the Party has aright to put an end to it by his own act, under a sole power of Revocation z , Those cases in which a voluntary conveyance kept in the possession of the Party during his Life, and in his possession at the time of his death, has been held to operate against his Will, has been where there was a complcat conveyance^ s Stapillon v. Stapilton, and see Griffin v. Nanson, 1 Atk. 10; and see 3 Atk. 4 Ves. 356. Pulvertoft v. 399, 18 Ves. 110. Pulvertoft, 18 Ves. 99. Lech* 1 Goriug v, Nasli, 3 Atk. mere v. Lord Carlisle, 3 1*. )S9. see Osgood and Strode, Wins, 222, 2 P. Wms. 2 45. Edwards v. " Ellison v. Ellison, Ves. Countess Warwick, 2.P. Wmjs. 002; and see Pulvertoft v. 175. Pulvertoft v. Pulvertoft, Pulvertoft, IS Ves. 99, 100. 18 Ves. 90, 92 ; ancj see what lvx parte Pye, 18 Ves. 149. issaid in Stephens and True* x Smith v. French, 2 Atk. man, 1 Ves. 74. and Ithell v. 243. fieane, ib. p. 210. v Antrolnis v. Smith, 12 * Col man v. Sarel, 3 TSro. Ves. 40. C. C M.S. C. 1 Ves. Jun. 50. z Pulvertoft v. Pulvertoft, Ellison v. Ellison, 6 Ves. 002; IS Ves 99. 328 EQUITY JURISDICTION. a transfer in Law, of the Property: nothing re- quisite to add to the validity of it ; the instru- ment permitted to remain uncancelled ; and all the Court was called upon to say was, that a Will, a mere voluntary Act, as much as the Deed, should not be a revocation of the Deed. A Covenant by a Husband to reconveyan Es- tate, settled on him by Mistake, is not considered as voluntary, but may be enforced*. The Court will not enforce the performance of a voluntary Agreement for a Lease, the mere result of Bounty; but the Court would not disturb a Lease actually made in pursuance of such an Agreement 1 *. Neither will an agreement be decreed, where the performance of it would be a breach of Trust*, or produce a Forfeiture h . A specific performance of an agreement for a Partnership, has been refused, as it might be dis- solved immediately afterwards c . If there has been gross laches, in a Plaintiff, a specific performance of an agreement for the pur* chase of an Estate, will not be decreed. The doctrine, in regard to Contracts stipulated to be performed within a given period, that time is not essential, has been quarrelled with d ; for, * Randall v. Randall, 2 P. 357. S, C. MSS. but see con- Wms. 404, see Anon. Prec. tra Buxton v. Lister, 3 Atk. Ch. 101. 385. and Anon. 2 Ves. 629. " Willan v. Willan, 16 Ves. d This doctrine seems in 82. some degree to have arisen out * Mortlocke v. Buller, 10 of a misreuort of Gibson v. Ves. 292. S. C. MSS. Patterson, 1 Atk. p. 12. See b Brian v. Acton, 5 Vin. Abr. 4 Ves. 089, 690. See RadclifTe 533. pi. 33. v. Warrington, \2 Ves. 326. * Hercey v. Birch, 9 Ves. 1 Ball and Beatty 68. SPECIFIC PERFORMANCE OF AGREEMENTS. 329 though time is not so strictly regarded in Equity, as at Law, yet, it seems, generally speaking, that it is essential , though there may be cases, where it not being material, or of the essence of the contract f , and cases arising out of the Conduct of the Parties B , inevitable Accident, &c. which may induce the Court to relieve, for the Court has a discretion on the subject. Where a contract had long lain dormant, thirteen years h , for instance, a specific performance has been refused'; and laches, of much less continuance, is sufficient to dissolve the contract ; for where no step had been taken from the day of the sale, and six months had elapsed after the expiration of the time, at which the contract was to be completed, the conduct of the Vendor was con- sidered as evidence of an abandonment of the Contract 11 . So, where nothing had been done towards performance of the Agreement, when the Purchaser became a Bankrupt, nor afterwards, until the Premises, by a subsequent event proved to be much more valuable than they were at the time the Contract took place, a specific perfor- mance was refused 1 . F Keen and Stuckley, folk, ■ See Setcn v. Slade, 7 V«. Eq. Cas. 155. Leehmere and 265. Lewis, Lucas 503. Lloyd fc Clifton v. Taylor, MS. and Collet, 4 Bro. C. C. 409. * Wingrield 'v. Whaler. and the judgment in that case Vin. Abr. tit. Contract and in 4 Yes. jun. 6S9, 090. in note Agreement, ^L) Cj.30 ; and see to Harrington and Wheeler, Moore v. Blake, 1 Ball and 4 Ves. 080. Spurrier and Han- Beatty 02. cock, 4 Ves. 074. Guest and k Lloyd against Collett, 4 Homfray, 5 Ves. 818. Bro. C. C. 409. S. C stated in f See Hearne v. Tenant, 13 note to 1 Atk. 12. Ves. 289. and Radclitfe v. ' Alley v. Desehamps, 13 Warrington, 12 Ves, 325. Ves, 225. 330 EQUITY JURISDICTION'. It was held upwards of a century ago, that where one Party has trifled or shewn a backward- ness in performing his part of the Agreement, a specific performance would not be decreed in his favour, especially if circumstances were altered 1 "; but afterwards, it became a prevailing idea, that where an Agreement was entered into, either part}- might, at any time> obtain a specific per- formance". Lord Kenyan is said to have been the first who resisted that notion, and Lord Jiosslyn followed his example", and held, that a Party cannot call upon a Court of Equity for a specific performance, unless he has shewn himself ready, desirous, prompt, and eager p . If, in particu- lar, there be an Agreement for the sale of a reversion, and part of the terms is, that the purchase Money be paid by a certain time, if it is not so paid, by default of the Vendee* the Vendor is discharged from his Contract q ; for no man sells a Reversion who is not distressed for Money, and it is ridi- culous to talk of making him a compensation* by giving him Interest on the Purchase Money during the delay r . If the Vendee, on a Sale by Amtion,, calls, for his deposit at the end of the time limited for com- pleating the purchase, and insists he will not go on with the purchase, the Court will not compel "B Grounds and Rudiments (iuest v. Homphray, 5 Ves. of Law and Equity, ]). 18. 818. n >ee 1 Atk. 12; and what p See Milward v. Earl Tha- is said in Jones and Price, 3 net, f> Ves. 720. in note. An c t:-. 92-1. q Newman against RogerCL '■ See Marquis of Hertford v. 4 Bro. C. C. 391. Bene, 5 Yes. 720; and see ^ £b/393. SPECIFIC PERFORMANCE OF AG REE.MENTS. 331 him; but if the Vendee acquiesces in the de- lay, or does not sufficiently declare his dissent, a specific performance will be decreed', i If a Plaintiff has failed to perform bis part of an Agreement, or if it has become impossible to perform it, he cannot insist on a specific perfor- mance 1 ; but if he has performed so much of his part of the Agreement, that he cannot be put in statu quo, and is in no default for not performing the residue u , or is prevented from compleating it, by the default of the defendant v , he is intitled to a specific performance. There is, however, a difference between Agree- mails on Marriage being carried into Execution and other Agccements : for all other Agreements are considered as entire, and if either of the parties fail in performance of the Agreement, it cannot, at the instance of such Party, be decreed in specie, but must be left to an action at law ; but in Marriage Agreements it is other- wise, for though either the relations of the Hus- band or Wife should fail in the performance of their part, yet the Children may compel a performance. If the Mother's Father, for in- stance, hath agreed to give a Portion, and the Husband's Father hath agreed to make a Settle- ment, though the Mother's Father do not give the Portion,yet the Children may compel a Settlement; s Pinrke against Curtns, u Meredith and Wynn, 2 4Bro. C. C. 329. Jones and Ch. Cas. 18, 19. "S. C. Pre. Price, 3 Anstr. 924. Ch. 312. Gilb. ftep. 70. Lex 1 Feversik.m v. Watson, Ch. Pretoria 240,241. Cas, 26. S, c; Finch 445. and ' Blackwell v. Nash, 1 Str. Gilb. Lex Pretoria, MS. 035. 332 EQUITY JURISDICTION - . for non-performance on one part will be no im- pediment to the Children's receiving the full benefit of the Settlement: so, if there be failure on the part of the Father's relations it is the same ; all the Court could do in that case would be to Jay hold on such Estate, as he should claim, to- wards making good his portion of the Settlement ; for the Children are considered as Purchasers, and entitled to all the benefit of the Uses under the Settlement, notwithstanding there has been a failure on one side w . If a Man after entering into a Contract for a Lease commits a Felony, the Court will not en- force. the Contract x . So, if the Tenant has treated the Land in an unhusbandlike manner, and has been guilty of various breaches of covenant, for which the Lessor had a right of re-entry, the Court will not decree a specific performance in his Favor y . Lord Rosslyn appears to have thought, a Wife who had eloped or committed adultery, could not enforce a specific performance of articles for a Jointure z ; and Lord Manners was of the same opinion, but considered himself as bound by Authority, and decided % as other Judges had w Hervey v. Ashley, 3 Atk. y Hill v. Barclay, 18 Ves, 610. Perkins against Thorn- 63. ton, Ambl. 502. and see Pyke z See what is said in Bu- v. Pyke, I Ves. 377; and what chanan v. Buchanan, 1 Ball is said in Hilton v. Biscoe, and Beattv 206. 2 Ves. 309. Mh. 203. "So said in Willingham v. Joyce, 3 Ves. 1C8. SPECIFIC PERF0R3IANCE OF AGREEMENTS. 333 previously done b , that such articles might, under such circumstances, be enforced. If the Plaintiff lias taken all proper steps to- wards the performance of his part of the Agree- ment, but has been prevented compleating it by* the neglect of the Defendant, his endeavours will, both at Law and in Equity, be considered as equi- valent to performance'. Insolvency admitted, and not cleared away, is a weighty objection to a specific performance of an Agreement for a Lease' 1 . It has never been determined that the Assig- nee of a Bankrupt can compel a Landlord speci- fically to perform an Agreement to grant a Lease to the Bankrupt 6 . Lord Rosslyn would not say it was impossible, and would not allow a Demurrer to a Bill for that purpose f ; but Sir William Grant considered the difficulty as insurmountable ? , and there is a Decision b , and strong Dicta in confor- mity with his opinion 1 . A Bankrupt Vendee can- not enforce a specific performance k . If an act of Bankruptcy has been committed b See Sidney v. Sidney, 3 e See Weatheratl v. (Jeering, P. Wras. 269. Winter v. 12Ves.51& Blount, 3 P. Wms. 276. in f Brooke v. Hewitt, 3 Acs. mote : Seagrave v. Seagrave, '253. 13Ves. 439. s Weatherall v. Geering, c 1 Fonbl. Tr. Eq. who 12 Ves. 514. quotes Roll's Abr. 455,457, h See Moyses v. Little, 45a Litt. s. 385; Blackwell and 2 Vern. 19 1. Nash, 1 Sir. 033. Hatham and ' See Willingham v. Joyce, East India Company, IT. R. 3 Ves. It;-. Buckland v. 03S. Hall, 8 Yes. 75. * Buckland and Hall, 8 Ves. k Franklin v. Lord Brown- 95; and see O'Herliky v. low, 14 Ves. 550 Hedges, 1 Scb. and 1 efr. 130. 33t EQUITY JURISDICTION. by the Vendor, though not followed by a Corn- mission, he cannot compel a specific perfc- mance l . A specific performance of an Agreement is sometimes refused, on grounds of public policy. As where the Agreement originated in commu- nications to the Defendant, by the Commissioners who took the Depositions in a cause, and by the Witnesses, as to the nature and effect of the Evidence" 1 . On the same ground the Court has refused tt> enforce an Agreement by an Officer in the Army, for an Assignment of his half pay"; or an Agree* ment by a Gaoler to assign his Fees °. An Agreement must be mutual, in order to be enforceable. Where therefore it appears that nothing has been done under an Agreement 11 , the Court will not, (except, perhaps, in the case of an Infant*,) decree a specific Performance, unless the right to compel, is mutual. The case of Hatton and Gray T , is often cited to shew that it is sufficient that the Agreement should be signed by the Party against whom the performance is sought, and so seem the current of thecase s ; but, says Lord Rede&dalc, in hisob- l Lowe v. Lush, 14 Ves. 547. p Hawkins v. Holmes, 1 P, m Co'oth v. Jackson, Ves. Wins. 770. 12. q See diet, in Shannon v. " Stone v. Lidderdale, 2 Bradstreet, 1 Sch. and Lefr. Anstr. 533. p. 58. Mithwold v. Walbank, 2 r 2 Ch, Cas. 1G4. S. C. 1 Eq. Ves. 238. Ah>. 21. SPECIFIC PERFORMANCE OF AGREEMENTS. 333 servations on that case, " to give the Statute such a construction would make it really a Statute of Frauds, for it would enable any person who had procured another to sign an Agreement to make it depend on his own will and pleasure, whether it should be an Agreement or not 1 ." In the case of Haiton v. Gray, so much relied on as the leading case on the subject, the ground of the decree for a specific performance appears, (not indeed in the short note in Eq. Cas. Abr. but in the Report in Chancery Cases',) to have been, that the Plaintiff drew up the Agreement in his own hand, and that procuring B. to sign it, on his part, the signing of B. was not only a sign- ing for himself, but as authorised by the Plaintiff to close the Agreement T , and therefore if B. had corneintoa Court of Equity against A. the Court would have decreed the Agreement against A. * The reasoning of the Case is rather strained, but the case shews, the Agreement must be mutual ; and therefore, with all due deference, it was not, as Lord Redesdale and others y seem to Suppose, a case where the Agreement was not considered as mutual, but the contrary. It is, therefore, "when justly considered, an authority in favor of his Lordship's interpretation of the Statute. If the Agreement be signed only by the Party 1 Lawrence v. Butler, 1 Sch. * Lex Pwtoria, M*. ami Left". "20. > New land on Contracts ,171. y 2 Ch, ('as. \{\\ ; at;d Lex 1 ">•">. Roberts on Frauds, p. Pretoria, Ms, 124, Sugdeii's Law of Vend, " Sed. vid. Wright v, Dan- ami Purch. 04. U»t Edit, nub, 2 Camub. 20U, 33(5 EQUITY JURISDICTION. who seeks a specific performance, it is very clear it will not be decreed 2 . The effect of Inadequacy of Price upon con- tracts has been already considered under the head of Fraud, and it is not necessary, in this place, to say more than that where a Sale has" been for a very low price a , or extremely unreason- able b , the Court will not enforce a specific perfor- mance; but where by some occurrence, subsequent to the Agreement, it becomes a beneficial bar- gain, or turns out to be a losing concern, the same will be decreed r ; accidental subsequent ad- vantage forming no objection to a specific per- formance d . Where, however, there has been such an alteration of the Property that it cannot be enjoyed according to the stipulations of the Agreement, a specific performance has been re- fused e . If there is a ivant of certainty in the terms of the Agreement, it will not be decreed; as where a Te- nant in Tail, with power to make a Jointure, arti- * Hall v. Butler, I Eq. Abr. and also the cases mentioned 20. Hawkins v. Holmes, 1 P. in margin. Tristam and Mel- Wms. 770. Contra. Lowther huish, Yin. Abr. Tit. Contract v. Carril, 1 Veni. 221. and Agreement, (P.") Ca. 10, a Collet against Woolaston, Squire and Baker, ib.Ca. 12, 3 Bio. C. C. 208. see also Day c City of London v. Rich- v. Newman, mentioned in mond,2 Vern. 423. S. C. Prec, Newlaud on Contracts, p. 06. Ch. 150; and seeCass v. Rud- S. C. 10 Ves. 300. die, 2 Vern. 280. but see cases b Barnardiston v. Ling- on a contrary principle, Ch. wood, Barn. 341. see I Eq. Ca. 19. Awbry and King, 2 Abr. p. 17. in margin. See Vern. 472. Anon. 2 Ch. Cas. 17/ Hick v. d Anon. MS. Phillips, Prec. Ch. 575 ; and e City of London v, Mitford. see Preston and Wasey, Prec. 14 Ves. 4L Ch. 70. S. C. 2 Eq. A Dr. 55; SPECIFIC PERFORMANCE OF AGREEMENTS. 33| cled, in consideration oi* Marriage, to make a Jointure, without saying out of what Lauds, or lo what amount, and the Wife died, and her Execu- trix brought a Bill for an account of the Profits of the Lands articled to be settled, the Bill was dis- missed f . So, where a Man in consideration of Marriage, promises by letter, to pay his Daughter a Fortune, without reducing it to any certainty, a Court of Equity cannot carry it 'into a specific Execution 8 . Many other cases have been de- cided on the same principle — the want of certainty in the Agreement h . But the Court will, if it can, execute an uncer- tain Agreement, by reducing it to a certainty'; and where a thing is to be done, but no time fixed, the Court has, in several cases, decreed a perfor- mance, in a reasonable time k . An Agreement to sell, at a fair valuation, may be enforced '; and if the Terms of an iVgreement are to be ascertained by an Award, and are so ascertained, a Court of Equity will enforce the Agreement, if any thing is to be done in specie; as Estates to be conveyed, Sec. m ; but if there is not a valid Award, as agreed upon, the Court will not specifically perform the Agreement, f Elliot v. Hele, t Vern. 40G. k Southwell v. Abdev, Hil. 6 Hall and Butler, Gilh. Rop. 6 Ceo. 2. 1732. MS. "contra LexPraetoria, MSS. 1 Eq. Abr. 2 Cli. Rep. \J. 20. ' Emery v. W;ise, 5 Yes. 11 See Bromley v. Jefferies, 846. Milnes v. Gery, 14 Yes. 2 Vern. 415. and Emery and 407. Waae, 5 Ves. S49. m As to this see Hall v. 1 See Allen and Harding, Hardy, 3 P. Wms. 180, 2 Eq. Ca. Abr. 17. pi. 6. VOL. I. Z 33S EQUITY JURISDICTION-. unless there has been acquiescence; or the Agree-* ment, evidenced by the Award, has been in part performed 1 '; but where the Award has not been partly performed, a specific performance has been refused °. The subject matter of an Agreement, in order to be enforced, must, as before observed, be clear- ly defined ; but in Agreements between parties, many things not particularized, are understood as agreed upon. If, for instance, a Man covenants to sell a Fee- simple Estate, free from incumbrances, and says no more, this covenant, alone, entitles the pur- chaser to proper covenants. It is well settled what are the proper covenants, where the Vendor was himself a Purchaser for a valuable considera- tion, or where he acquired the Property by descent, or by purchase, but not for a valuable consideration. A Person agreeing to sell an Estate in fee-simple must covenant that he is seized, and has power to convey, in fee; — for quiet enjoyment ; — that the Estate is free from Incumbrances; — and for further assurance: and if the Vendor purchased the Estate for a valuable consideration, and obtained proper covenants for the Title, he must deliver, or covenant to produce, his Title Deeds, and n Blundell v. Brettargli, 17 this point ; and see Norton v. Ves. 232. Cooth v. Jackson, Mascall, 2 Vern. 24. 6 Ves. 34. Milnes v. Gery, ° Bishop and Webster, 1 Eq. 14 Ves. 400. overruling Hall Abr. 51. S, C. Precedents in and Warren, 9 Ves. 005. as to Ch. Specific performance of agreements. 333 covenant against his own acts only. It" t h« - Ven- dor's Title is by Descent, Devise, or otherwise as a Purchaser, not for a valuable consideration, the Vendor must covenant, not only for himself, but against the acts of the last Purchaser; or at least, of the Person immediately preceding him 1 '. And if there should have been an intermediate Heir supposed to be dead, it is reasonable the Covenants should extend to his Acts ; but if the sale takes place under such .circumstances, that it was not known whether there was an in- termediate Heir, and the consideration Money is reduced in proportion to the doubt upon the Title in that respect, there is no need of a cove- nant against the Acts of such Heir q . Where an Estate is agreed to be sold for the payment of Debts, and no surplus remains, the Court will not require the Heir to covenant any farther than for his own Acts r ; and the rule is the same in such case, as to a Devisee ; but if a Sale be decreed, and after such sale a considerable surplus comes to the Heir at Law or Devisee, the Heir has been directed to covenant that nei- ther he, nor the immediate ancestor under whom he claims; and in the case of a Devisee, thi neither he nor his Devisor, have done any act to incumber'. ■ *Vid. Church and Brown, q Vid. Pickett and Loggon, 15 Ves. 263. in note by Mr. 14 Ves. 239. Vesey. Loyd v. Griffith,3 Atk. r Loyd v. Griffith, 3 Atk. 267. 2 Bos. and Pull. 22 ; and 2; 7. **>e Sugd. Vend, and Purch. 'lb. 2(8^ , etc. and p. 457, etc. last Ed. sec also 14 Ves. 239. z 2 340 EQUITY JURISDICTION". Where there is simply an Agreement for a Lease, for a certain number of years, and no more, this entitles a Party to the usual Cove- nants '. In an Agreement between Landlord and Te- nant, the word clear ', is construed, clear of all Out- goings, Incumbrances and extraordinary Charges, not according to the custom of the Country, as Tithes, Poor-rates, and Church-rates, which are natural charges on the Tenant u . It seems now fully established, though there are cases to the contrary v , that an Agreement for a Lease, with usual Covenants, does not include a Covenant against alienation without licence w . If the Agreement were, to grant a farm Lease with the usual and customary covenants of the neighbourhood, what such usual and customary Covenants are, might be made the subject of in- quiry before the Master". He who takes the assignment of a Term, is bound to give a Covenant of Indemnity to the Assignor, against the payment of the Rents, and the performance of the covenants: and there is no distinction between the cases of an assignment « Church v. Browne, 15 v. Slaughter, 1 Esp. N. P. C Ves. 258. 8. "Lord Tyrconnelv. Duke of w Church v. Browne, 15 Ves, Ancaster, Anihl. 240. 258. and Browne v. Raban, v Vere and Lovedon, 12 Ves. 15 Ves. 528. following Hen- 179. Jones v. Jones, 12 Ves. derson v. Hay, 3 Bro. C. C. 186. following Folkingham v. 032. Croft, 3 Anstr. 700. Morgan * Boardman, v. Mostyn, 6 Ves. 471. SPECIFIC PERFORMANCE OF AGREEMENTS. 341 by the original Lessee, and by an Assignee of that original Lessee 1 . Of all objections to a specific performance, the want of a Title, is that which is most frequently urged by a Defendant. A Purchaser is not obliged to take an Equitable Title '', unless where Estates are sold under a de- cree, before a Master'"; but has a right to insist upon having a clear Legal Title, commencing at hast sixty years anterior to the time of his purchase ; and sometimes for a longer period, where there are remainders, after existing Estates Tail a . If objections are made to a Title, the Chan- cellor may be called upon to decide, whether a good Legal Title can be made ; but as this is a pure question of Law, if the Chancellor has any doubt, he usually refers such doubts for the opinion of a Court of Law, the most authoritative forum on such points. The Equity Reports abound with decisions on objections made to Titles, but the consideration of such of them as relate merely to questions of Law, is not within the design of this \\*ork. In treating of this subject, we shall there- fore confine ourselves to such questions as can arise only in Courts of Equity. If there be a difference in value between the real Interest of the Vendor, and the Interest 1 Stains v. Morris, IS Yes. Beard, 1 Dick. 392. there 13. cruated, and als.o Marlow and b Cooper v. Denne, 4 Bro. Smith, 2 P. Wnra. 198. and C. C. M>. S. C. 1 Yes. Jun. Shaw v. Wright, 3 Yes. 22. 565. * Sagd. Vend. &c. p.'25'J, c Sugd. Vend, and P.urcb. &c. 271 ; and see Chandler and 342 EQUITY JURISDICTION. represented as proposed for Sale, (though inno- cently misrepresented 6 ,) the Purchaser is, it seems, entitled if he chooses to abide by the Purchaser, to have such difference deducted from his Pur- chase Money', by way of compensation* ; nor can the Vendor, it seems, refuse h : and if the Master, on a reference to him, is unable to ascer- tain the difference in value, but the Purchaser is content to take such Interest as can be con- veyed to him, with such Indemnity, as under all the circumstances the Master shall think just and reasonable, a Decree to that effect will, at the instance of the Purchaser, be made. It is true, generally, but not universally ', that a Purchaser may, if he pleases, accept, nay insist on compensation, if he undertakes on his part to do what the Court shall order k ; but the Vendor cannot, it seems, (except where the Party gets, substantially, that for which he contracts 1 ,) insist upon the Purchaser's taking a compensation. If, therefore, a Purchaser agrees to buy a Freehold e Hill v. Buckley, 17 Ves. ' Paton v. Rogers, 1 Ves, 401. and Bea. p. 353. f Milligan v. Cooke, 16 k lb. Ves. I ; and. see what is said in * See Calcraft v. Roebuck, Seaman v. Vawdry, 16 Ves. 1 Ve6. Jun. 221. Drewe and 275, ami 290. Corp, 9 Ves. 368. Halsey and 8 See Halsey and Grant, Grant, 13 Ves. 78 ; and see 13 Ves. 77. Horniblow v. Shirley, ib. 81. h Mortlocke v. Buller, 10 Dyer and Hargrave, 10 Ves. Ves. 316. but see the case as 507. M c Queen v. Farquhar, to an agreement to assign a 11 Ves. 467. Alley and Des- lease, mentioned 1 Fpnbl. 212. champs, 13 Ves. 228. and what is said 1 Ves. and Bea. 225. SrEGHFIC PERFORMANCE OF AGRCEMENTS. 343 Estate, he cannot be compelled to accept one that is Copyhold ,n . If a contract be for a House and a Wharf, the Wharf being the principal in- ducement to the purchase, a Purchaser will not, it seems, be obliged to take the House only ". And so, if Land be represented as Freehold, with Leasehold adjoining, and is found to be Lease- bold only, the Purchase would not be enforced . A Lessee, who described his Interest as fifty years, the residue of a Term, free from Incum- brances, but who in fact had only three years of an old Term, and a reversionary term from another Lessor, and old Incumbrances not shewn to be discharged, could not, it was determined, enforce a specific performance p . A Purchaser has been held not to be entitled to an abatement for a deficiency in the quantity of acres sold, where the particular described the Estate as containing by estimation, so many acres, " be the same more or less' 1 .'* Where a Bill is filed for the specific perfor- mance of a contract for the purchase of Real m 4 Bro. C. C. 497. 9 Ves. Halsey and Grant, 13 Ves. p. 8G8. 78. but see Drewe and Hanson, n That was Lord Erskine's 6 Ves. G75. opinion in Stapylton and Scott, ° Fordyee and Ford, 4 Bro. 13 Ves. 427. contrary to Sir C. C. 498 ; and see Drewe v. Thos. Sew el's decision, men- Corp, 9 Ves. 3(>S.and Alley and" tioned in Seton v. Slade, 7 Ves. Deschamps, 13 Ves. 228. 270; and see what is there said v White v. Folgambe, 11 by Lord Eldon, and the case Ves. 337. as to tythe there mentioned ; q Winch v. Winchester, and9ee PooleagainstShergold, 1 Ves. and Bea 375, 2 Bro, C. C. 118. see also 344 EQUITY JURISDICTION. Estate, the Defendant, in ordinary cases, may, if he chooses, have a Reference to the Master, to see if a good; Title can be made ; and the Court never acts upon the fact, that a satisfactory ab- stract of the Title was delivered ; unless the Party has clearly bound himself to accept the Title upon the abstract", as by taking possession for a considerable time, and making no objection to the abstract s . But the circumstance of an abstract being shewn to a Purchaser, previous to the filing of a Bill for a specific performance, in which the ; defect of Title appears, does not bind the Purchaser e . Though the Party cannot state any objection to the Title as it appears in the abstract, yet he may Misist on a reference ; and the reason seems to be, that by the ordinary Decree, in these cases, the other Party is com-, pelled to produce all the deeds, papers, &c. in his custody or power ; from which reasonable and solid objections to the Title may be furnished, which would never have fallen under the view of the Purchaser, unless the Court wrung from the conscience of the Vendor that sort of infor- mation, which a Purchaser could by no other means acquire : Inquiries and Examinations also may be directed, by which the Title may be gifted in a way, in which it never could, upon a Jenkins v. Hiles, 6 Ves. 594; and see Fludyer v. Cocker, 12 Ves. 25. 'Fleetwood v. Green, 15 Ves, l Stapylton v. Scott, 16 Ves, 274. SPECIFIC PERFORMANCE OF AGREEMENTS. 345 mere abstract, authenticated as the Vendor thought proper T . A Defendant, however, against whom a specific performance is prayed, may by his answer waive his Fight to a reference, and call upon the Court to decide upon his objections to the Title; but in such case the answer must be unequivocal, and the Defendant must not be drawn into it by surprise or fraud, and want of full information, and its propriety not rendered disputable by any sub- sequent discovery w . And this course seems highly reasonable, for if it clearly appears to the Court, upon the Pleadings and the Evidence, that there are irremoveable objections to the Title, it would be an idle and unnecessary ex- pence to the Parties, to make a reference to the Master x . "I have heard it said," — says Sir Thomas Clarke, "aTitle purchased under a Court of Equity, must be like Caesar's Wife, even without any suspi- cion y ;" and certainly the Court will always pause, where doubts raised upon a Title, are rea- sonable and fair, and will not compel a Purchaser to take Property, not marketable 7 . Many cases establish it as a Rule (impugned, indeed, in a very recent decision',) that though in the Judg- T 6 Ves. G53. ' See Marlow and Smith, 1 w Jenkins v. Hiles, Ves. P. Wins. p. 201 ; and Lord C53, (555. Braybroke v. Inskip, 8 Ves. x See Omerod v. Hardmaq, 428. 5 Ves. 731. ■ See Piscoe v. Perkins, 7 Sedgewick v. Hargrave, 1 Ves. and Bea. 192, 3. ? Ves. 57 v 34fr EQUltY JURISDICTION* mentof the Court, the better opinion is, that a Title can be made, yet, if there is a considerable, a rational, doubt, the Court has not attached so much credit to its own opinion, as to compel a Purchaser to take the Title, but leaves the Par- ties to Law : and this, whether the doubt arises as to the quantity of the Estate of which the Seller is possessed, or upon a legal* objection. Nor will a case for the opinion of a Court of Law, be directed, without the Purchaser's consent r ; and if after a certificate of the Court of King's Bench, the Chancellor retains a doubt, a Purchaser will not be compelled to take the Title d , but may- require another case, directed to another Court £ „ And where the objectioa has been respecting the legitimacy of a Party, the Court has said there are many cases in which a Jury will collect the fact of legitimacy from circumstances, in which it might be attended with so much reasonable doubt, that the Court would not compel a Pur- chaser to take it, merely because there was ^ verdict f . But though the Court will not force a doubtful Title upon a Purchaser, yet in these cases, it seems, the Court will govern itself by a moral certainty ; for it is impossible, in the nature of b Stapylton v. Scott, 16 Ves. d Sheffield v.Lord Mulgrave, 274 ; and see Rose v. Calland, 2 Ves. Jun. 529. 5 Ves. 188,189. and Cooper v. e Trent v. Hanning, 10 Ves. Denne, 1 Ves. Jun. 5C5. and 500. Wheateand Hall, 17 Ves. 80. f See Lord Braybroke v. I Uoake v. Kidd, 5 Ves, 647. Inskip, 8 Ves. 428. SPECIFIC PERFORMANCE OF AGREEMENTS. Hi*? things, there should be a mathematical certainty of a good Title 1 . There are frequently suggestions of old entails, and often doubts, what Issue persons have left, whether more or fewer ; and yet these were never allowed to be objections of that force, as to over- turn a Title to an Estate k . It is no objection, for instance, to a Title, de- rived under a grant from the Crown, that there is a reservation of Royal Mines, if there has never been an exercise of the right, or a probability that there ever will ; for there is no instance where the Crown has only a bare reservation of Royal Mines, without any right of Entry, that it has granted a licence to any person to come upon another Man's Estate, and dig up his Soil and search for such Mines ; though, when they are once opened, they can restrain the Owner of the Soil from working them, and can either work them themselves, or grant a licence for others to work them c . Where the Title is clear, but there are Terms or Incumbrances to be got in, the established course is, that the Master reports in favor of the Title ; and a Reference is made to him, to approve a Conveyance ; and then the Question arises, whether all the parties to a proper Con- veyance are brought before the Court, and if it appears all necessary Parties are not before the Court, such Persons must be made Parties d , •1 -yd daJ v. Weaton, 3 Atk. r Hj. J20. * See Arg. in Omevod r* * lb, Ilardman, 5 Ves. 725. 348 equity jurisdiction: otherwise, the Bill would be dismissed with Costs' 1 . An Exception, therefore, cannot be tak- en to the Master's Report of a good Title, on the ground that the Trustee of an outstanding term is a Lunatic, for that is a question of Conveyance, not of Title*. It seems doubtful, whether upon a Contract to sell a Lease, the Vendor is bound to make out that the Lessor has a good Title f ; but the prevail- ing opinion appears to be, that he is; and in ge- neral, where the convenience of the case requires it, it is provided in Particulars of Sale, or in private Agreements, that the Purchaser shall not insist on seeing the Lessor's Title. If Assignees exhibit to sale a Freehold Estate of Inheritance, not marking by the Contract, that they meant to sell any thing more than it shall turn out the Bankrupt had, they are bound, as other persons are, to make a Title to the Inheri- tance, free from Incumbrances g ; but an Executor, selling, is not bound to covenant for the Title 11 . When Conveyances are directed, by a Decree, they must be settled by the like kind of Rule as men of Judgment among Conveyancers would direct', * See Loyde v. Griffith, 3 ruling the dofftrine in Pope Atk. 267. v. Simpson, 5 Ves. 145. S. P. e Berkley v. Daugh, 10 Ex parte Trender, MSS. see Ves. 380. also Spurrier v. Hancock, 'White v. Foljambe, 11 Ves. 4 Ves. 067. Macdonald and 337; and see Radcliffe v. Hanson, 12 Ves. 277. Warrington, 12 Ves. 320. and h Staines v. Morris, 18 Yes. Gompertz v. 12 Ves. 17. 17. « White v. Foljambe, 11 ' Loyd v. Griffith, 3 Atk. Ves. 345. and see Macdonald 267, and Hanson, 12 Ves. 277, over- SrECIFIC PERFORMANCE OF AGREEMENTS. ,'j if) It is not necessary, in order to obtain a Decree for a specific performance, that the Vendor should have a good Title at the time of the Sale, for it seems, that if he can, even by an Act of Parlia- ment, obtain a Title before the Report, that is suf- ficient 14 ; and the Decree of the Court in these cases always is to inquire whether the Seller caw, not whether he could, make a Title at the time of executing the Agreement 1 . A Purchaser, therefore, cannot insist on being: •discharged from his Purchase, upon the Master's Report of a defective Title, if the same is capa- ble of being made good within a reasonable time : as where the Master's Report is, that the Ven- dor getting in a Term,, or getting administration, &c, will have a Title ; but the Court will put the Vendor under terms to procure that speedi- ly™. The Court will not suffer a Plaintiff, at the distance of years, to come to the Court and say, he is ready to make a good Title, and call for a specific performance. Cases, however, of this description, must be governed by circumstan- ces". When, on a Reference to the Master, he reports that a good Title to a Purchase cannot be made, the Vendee may file a Bill against the Vendor to k Langford r. Pitt, 2 P. ' Langford v. Pitt, 2 P.Wms. Wms. 630. Mortlocke v. Bui- 630. ler, 10 Ves. 315 ; und see m Coffin and Cooper, 14 Jenkins v. Biles, 6 Ves. G54. Ves. 205. Wynn and Morgan, 7 Ves, n Wvnn v. Morgan, 7 Vts 205, 6. 205,0. Jenkins v. Hiles. 6 V«w 640. 3.50 EQUITV JURISDICTION - * have the Contract delivered up ; but it seems, that compensation will not be granted for the loss sustained by the failure of the Contract, though the Bill pray, in the alternative, a specific per- formance, or an Issue, or an Enquiry before the Master with a view to damages , that being more properly the subject of an Action p . In Denton t, Stewart q , it is observable the defendant had it in his power to perform the Agreement, and put it out of his power pending the Suit. " That Case, if not supportable on that distinction, is not," says Lord Eldon, " according to the principles of the Court*." It may be proper to observe in conclusion of this fruitful subject of Equity, that if the Pur- chaser does not pay the Purchase-money at the time fixed, he will be chargeable with Interest; and as he must bear any loss, so likewise will he be entitled to any profits that arise from the Es- tate s . In general, if a Purchaser is let into possession and perception of the Rents and Profits of the purchased Estates, he must pay Interest for his Purchase-money 1 ; but it is not universally so u : there may be a case where he shall not pay In- • Todd and Gee, 17 Ves. 273. r 17 Ves. 276. which seems to overrule s Davy v. Barber, 2 Atk. Greenaway v. Adams, 12 Ves. 490. 395. l S ■ Flndyer v. Cocker, p Gwillim v. Stone, 14 Ves. 12 Ves. 25. Blount v. Blount, 128. 3 Atk. 037. * 17 Ves. 270. in note, men- u See Blount v. Blount, 3 tione. also, 1 Fonbl, Eq. 43. Atk.6J7. and 2 vol, 438. SPECIFIC PERFORMANCE OF AGREEMENTS. 351 terest, notwithstanding he has the Rents and Profits : as where there are objections to the Title, and the Purchase-money lays unproductive, and the Vendor has notice of that circumstance, and afterwards the Title is made good, the Vendee will be entitled to the Estate and the Rents and Profits, and the Vendor to the Pur- chase-money only, without interest". And though, generally, a Purchaser cannot be called upon for his Money, until he has a Title, yet where he islet into Possession upon a mutual apprehen- sion that the Title could be immediately made good, he cannot, without express Contract, retain the possession, without, at least, paying Interest for the Purchase-money 7 . Where the Vendee has created unnecessary dif- ficulties, in respect of the Conveyance made to him, he > v ill be ordered to pay Interest from the time he ought to have executed the Convey- ance'. It seems doubtful whether when Interest is pay- able, it is at four or at five per Cent. The old Rule was four per Cent. x , but in a very recent decision, five per Cent, was awarded y . Money paid in as earnest at the Sale of an Estate, in whatever manner laid out, is a payment u See on this subject Pow- buck, 1 Yes. jun. 221 ; and see ell v. Martyn, S Yes. 146. Sugd. Vend, and Purcli. 404. v Cibson v, Clarke, 1 Ves. last Edition, and cases cited in and Bea. 502. note. w Blount v. Blount, 3 Atk. » Waldron v. Forester, F.xch. C37. 30 June 1SU7, particularly x Child v. Lord Abingdon, mentioned Sugd. Vend, and \ Ye?, jun. 94. Calcraft v. Roe- Purch, 405,6, &c. 352 EQUITY JURISDICTION, for so much of the Purchase-money 2 . If laid out without opposition from the Seller it must be presumed to be with his assent. If laid out under the authority of the Court, it will be binding on both a , If a Vendee, who has not compleated his Pur- chase for want of a Title being made, deposits his Purchase-money, in the Purchase of Stock* and gives notice of such deposit to the Vendor, this will have the effect of stopping Interest ; but the Vendee runs all the hazard of the rise and fall ot the Funds, nor in case of a rise, can the Ven- dor claim the benefit b * Where a Trust is raised by Deed or Will for the payment of Debts or Legacies generally % (and the Rule is the same where there is a general charge,) and afterwards a specific disposition d , a Purchaser or Mortgagee of real Estate is not obliged to see to the application of his Money, as he is, where there is a Schedule, or particulariz- ing of the Debts % unless there be any collusion between the Purchaser and the Trustee or Exe~ cutor f . If more Land is sold than is sufficient to pay the Debts, that will not prejudice a Pur- chaser s . But though a general charge does not oblige a Purchaser before a Suit, to see to the 1 Doyley against Powis, 2 Dunch v. Kent, 1 Vern 200,1 Bro. C. C. 32." Spalding v. Shalmer, 1 Vera. * Poole against Rudd, 3 301. Hardwicke v. Mynd, 1 Bro. C. C. 49. Anstr. 109. b Roberts v. Massey, 13 f Rogers against Skillicorne, Ves. 561. Ambl. 189. Lloyd v. Baldwin, c See Co. Lit. 290. b. 1 Ves. 173. d Ves. 654. in n. « Spalding v. Shalrner t 1 • lthell v. Beane, 1 Ves. 21 5, Vein. U0L TRUSTS. 353 application of the Money, yet after a Suit com- menced, it seems, lie is bound to see to the ap- plication h . And where Lands arc vested in Trustees, by Act of Parliament, to be mortgaged for a particular purpose, it is incumbent on the Mortgagee to see the Money applied according- iy- A Purchaser of an Estate under the Decree of the Court, is not answerable for the Mode in which the Estate has been sold by the Court, nor for the disposition which the Court makes of the Money k . VI. TRUSTS. We now proceed to the consideration of Trusts, a species of Jurisprudence peculiar to this coun- try', and of all others, the most fruitful in cases, and comprehending a great variety of Learning ; but the Rules on this subject, were in the time of Lord I Hardwicke, as he has observed, " prettv well ascertainedV' and have since been still more reduced to certainty, by the decisions of the great men, who have succeeded him. Trusts, may be created of Real, or Personal Estate; and are, either, 1. Express, or, 2. Im- plied: under which head of implied Trusts, may 11 Walker v. Smallwood, 05. Lutwych against Winford, Ambl. 077. 2 Bro. U. C. '248; but see ' Cot'erel v. Hampson, 2 Lloyd v. Baldwin, 1 Ves. 173, Vera. 6. » 1 T. R. 759. in N k Curtis v. Price, 12 Ves. b Letter to Lord Kaims, Life 103. Lloyd v. Jones, 9 Ves. of Kaims, I Vol.243. VOL. 1. A A 354 EQUITY JURISDICTION. be included, resulting- Trusts, and all such Trusts as are not express. Express Trusts, are^ created by Deed, or by Will ; Implied Trusts arise, in general, by construction of Law, upon the acts or situation of Parties. Every Cestui que Trust, whether a volunteer, or not, with, or without consideration, is entitled to the aid of a Court of Equity, to avail himself of the benefit of the Trust ; and, as between the Cestui que Trust and his Trustee, (unless the Trustee is such by Implication only) the Statute of Limitations does not apply a . Uses led the way to Trusts. Indeed, Uses and Trusts were similar in their original, and both re- semble the Fidei Commission of the Civil Law 6 , as introduced by Augustus f . The definition of an use before the Statute of Uses s , may still be ap- plied, not only to such uses as are not affected by that Statute, but to Trusts' 1 , which had their origin subsequent to the Statute, and in conse- quence of it. It was defined to be, a confidence reposed in another, who was made Tenant of the Land, or Terre-Tenant, that he should dispose of the Land according to the intention of Cestui que Use, or him to whose use it was granted, and suf- C 3P. Wms. 222. last Edition, Bacon on Uses, d Townshend against Towns- 19. Use of the Law, 153. hend, 1 Bro. C. C. 551. and f Inst. Lib. 2. Tit. 23. s. 1. see Beckford v. Wade, 17 Ves. in proremco. 87. B 27 Hen. 8. c. 10. e Bluckst. Comment. 2 Vol. h Sparrow v. Hardcastle, 3 p. 327. Gilbert on Uses, p. 3. Atk. 798. trusts. 355 for him to take the Profits'. Where, therefore, a Feoffment was made to A. and his Heirs, to the use of (or in Trust for) 13. and his Heirs, A. the Tcrre-Ttnant had the legal Property and possession of the Land, but B. the Cestui que Use, was, in a Court of Equity, held to be entitled to the pro- fits, and to the disposal of the Estate k . Uses proved seriously inconvenient in many respects; more especially, by avoiding wardships and Forfeitures to the Crown 1 . All the ill conse- quences of them, are enumerated in the preamble to the Statute of Uses m ; by which Statute, the Use is executed ; i. e. the possession is conveyed to the use, and the Cestui que Use is made com- pleat Owner of the Lands and Tenements as well at Law as in Equity. The Equitable Estate in the Cestui que Use before the Statute, was turned into a legal Estate, and having all the consequences at- tached to a legal Estate, the Evils incident to Uses were remedied. The common Law Judges, before whose Tri- bunal, Uses so converted into legal Estates, were determined upon, decided that, a Use could not be raised upon a Use a > and that on a Feoffment to A. and his Heirs, to the use of B. and his Heirs, in trust for C. and his Heirs, the Statute executed only the first use, and that the second was a mere 1 riowd. 352. Gilb. on Uses, 1G0. S. C. 3 P. Wins. 34l. p. 1. Chudleigh's Case, 1 Rep. Barn. 384. 121. m 27 Hen. 8. c. 10. k 2 Black. Com. 327. n 30 Hen. 8. TyreU'* Case, ' Lloyd v. Spitlet, 2 Atk. Dy. 1£>5. A. A A 2 356 EQUITY JURISDICTIONS nullity. They were not, perhaps, blameable in this. They adhered, as by their oaths and by the consti- tution they were bound to do, to the strict letter of the Statute, And though by their rigo- rous interpretation of the Statute, they occasion- ed the opening again of the doors of Courts of Equity, which the Statute had almost shut, their inflexibility is not therefore to be lamented, as that great constitutional lawyer, Sir Robert At- kgns, somewhat peevishly insists ; but must be matter of exultation to every one, who has soundly reflected on the Legal Polity of this country. The Judges also held, that as the Statute men- tions only such persons as were seized to the use of others, it did not extend to Copyholds?, or to Terms of Years, or other chattel Interests, whereof the Termor is not seized, but only possessed; and, therefore, if a term of one thousand years was limited to A. to the use of (or in Trusty for B. the Statute did not execute this use, but left it as at Common La\v q . They further held that, where Lands are limited to Trustees to receive and pay over the Rents and Profits, the use is not execut- ed, but the Lands remain in them to answer those purposes'. Where, therefore, there is a Convey. ° Enquiry into the Juris- r 36 Hen. 8. Bro. Feoff, al. diction of the Court of Chan- Uses, 52. 2 Bl ck. Com. 33(3. eery in Causes of Equity. Har. Co. Litt. 290/ n. 1. p Co. Copyh. s. 54. Cro. s. 2. Treatise of Equity, Book Car. 44. 2 Ves. 257. 2. Ch. 1. s. 4. « Bac. Uses 42. Poph. 76. Dver. 369. 2 Black. Coin. 336. TRUSTS. 3j7 ance to Trustees in Trust to conveif, or to sell 1 , or i to pay the Profits to a Feme Covert ; and as it seems in all cases, where any controul and discretion is given to the Trustees in the application of the Profits of the Estate, as to pay Annuities*, or to make repairs, or to provide for the maintenance of the Cestui que Trust, the legal Estate remains in the Trustees, unexecuted by the Statute*. It was observed by Lord I/arduiche, that the Statute of Uses, " has had no other effect than to add at most three words to a Conveyance*" but that position seems very questionable. The Sta- tute remedied the inconveniences it professed to remedy ; and though a new species of uses, under the name of Trusts, afterwards sprung up, yet the Courts of Equity took care that while they an- swered all the good purposes of Uses, they should not produce any of the inconveniences which the Statute of Henry the 8th was intended to avoid. ^As Uses executed are to all intents and purpo- ses, legal Estates, it is not within the design of this Work to treat on them more at length. The s Bac. Uses, 8. Roberts and terv. Wilson, 2 T. R. 444. Diwvell, 1 Atk. 007. Shapland and Smith, 1 Bro. 75. 1 Bagshaw v. Spencer, 2 Atk. x Hopkins v. Hopkins, 1 578. Wright v. Pearson, Ambl. Atk. 591. BlackstoDe, 2 Com. 300. 330. says also, with this passage u Pybus and Smith, 3 Bro. in his eye, the Statute lias had 340. Neville v. Saunders, 1 " little oilier effect than to Vein. 415. Harton v. Harton, make a slight alteration in the 7 T. Rep. 052. formal words of a Conveyance.'* ' Doe on dem. White v. 1 have a very fi.U M -. note Simpson, 5 East. 102. and see of Hopkins v. Hopkins, but Cibson v. Rogers, Ambl. 93. there is no such remark as * See 2 Vol. Blac. Com. 336. that alluded to m Atkyns 8 Re- tt. 12, by Mr. Christian, Silves- port. 33S EQUITY JURISDICTION. doctrine as to the creation, the limitation, and the extinguishment of uses, as well as of resulting uses, belongs principally to the consideration of Courts of Law ; nor is it here required to observe on the various Conveyances operating under the Statute 01 s Uses ; such as those which pass Uses by transmu- tation of Possession, as a Feoffment, Lease and Re' lease, Fine and Recovery; or those which raise Uses, without a transmutation of possession, as a Bargain and Sale, or a covenant tq stand seized* ; nor on the doctrine of Springing and Shifting Uses, or Uses operating through the medium of Powers: such as powers, so common in modern settlements, and very prudent 2 , of leasing, jointuring, charging, selling, or exchanging; or of powers of revocation* . All these doctrines relate to what are considered as legal powers over legal Estates, and, as such, (except where there has been a mistaken execu- tion of a Power b , or where the Power is coupled with a Trust , upon which we have before ob- S( : d b ,) are within the adjudication of Courts of Common Law ; nor have Courts of Equity any original or exclusive power to decide upon them. These matters, it is true, are often considered in Courts o) Equity, and a thorough knowledge of them is indispensable ; but it is to the Common Law Writers, and to the Common Law Reports, 'These Conveyances are a The subject of Powers, and well observed upon byMr. But- all the doctrine which sur- ler in his note to Co. Litt. 275 h . rounds them, is treated of in a 270*. very masterly manner iu Mr 8 ' See Sutton v. Jones, 15 Sugden's work on Powers, Yes. 538. b Ante, p. 44. f See ante, p. 46, TKUSTS. 359 that reference must be had, for the most authori- tative decisions on these subjects. Indeed, a Person having a legal Estate only, and no beneficial Interest, cannot, it seems, come in- to Equity for any purpose c . It may, however, be remarked, that the Courts of Common Law in their decisions upon the creation of Estates, by way of Use, shew more indulgence to the intent of the Parties, than they do in regard to the crea- tion of Estates by Conveyances at Common Law*. It is to Trusts, and Trusts only, that the Reader's attention will here be particularly directed — to that " creature of Equity,'* as it is called, of which the Common' Law takes no notice, and over which, Courts of Equity have an original^ a peculiar, and exclusive, Jurisdiction. In the definition of an Use, as it existed before the Statute of Uses, Trusts have already been de- fined. A Trust is in other words a right in the Cestui que Trust, to receive the Profits, and to dispose of the Lands in Equity 6 , and is such a confidence between Parties, that no Action at Law will lie f . There may, however, be special Trusts, as for the accumulation of Profits, the Sale of Estates, or the conversion of one Trust Fund into another, which may preclude all power of in- e See Williams v. LordLons- ' 1 Mod. 17. dale, 3 Ves. 757. f Sturt r. Mellish, 2 Atk, d 2 Vol. Fonbl. Eq. p. 47. C12. in note. 360 EQUITY JURISDICTION. terference on the part of Cestui que Trust, until such special Trust he satisfied e . In general, Courts of Equity in the construction of Words, by which Trusts are limited of real or personal Estate, follow the Rules which Courts of Law have laid down, in regard to the creation and limitation of legal Estates 11 ; and this, whether the Trust be created by Deed or by Will ''. Whether the words in a Deed or a Will, pass an absolute or a limited Interest, is decided by Rules com- mon to both Courts k ; the only difference being, that where a Trust Estate is created by Deed or Will, it is determined upon in Courts of Equity, and where a conveyance or a devise is of a legal Estate, it is determined on in Courts of Common Law ; but the decision, in each Court, in the construction of words of limitation, is guided by the same Rules. The principal exceptions to this general Rule, are in the cases, of Articles before Marriage ,already adverted to under the head of Mistake', and in the cases of what are termed Executory Trusts ; which will presently be adverted to. The Cestui que Trust has, in most respects, the same power over the Trust Estate, as owners of b Sanders on Uses, 1 Vol. v. Ball, 1 P. Wms>, 108. Banks 215. last Edition. v. Sutton, 2 P. Wms. 713. » Duke of Norfolk's Case, ' Wasstatf' v. WagstarF, 2 P. 3 Cha. Cas. 48. Bale v. Cole- Wms. 25JJ. roan. 1 P. Wms. 143. Garth k See Duke of Norfolk's v. Baldwin, 2 Ves. 055. Watts Case, 3 Cha. Cas. 48. 1 Ante, p. 50. TRUSTS. #51 legal Estates are possessed of; and the Trust Estate is in general, liable in the same manner as a legal Estate, except in respect of Dower m . He may alien it ; and any legal conveyance or as- surance by him has the same effect and operation upon the Trust, as it would have had, at law, upon the Icaral Estate n . The effect of a Fine is the same as at Law with regard to an equitable Interest, if of such a nature, that, turned into a legal Interest, it would have been barred °. A Common Recovery suffered by a Cestui que Trust in Tail, in possession, bars all equitable remainders depending upon such Estate Tail, although there was no legal tenant to the Praecipe p , but it does not bar a legal remainder. To bar legal remainders by Common Recovery, there must be a legal Tenant to the Prsecipe q ; nor will such a Recovery be efficient, if there be an Estate for Life in another, prior to such Estate Tail 1 ; or if the Estate for Life be equitable with a legal remainder in tail 6 ; but, it seems, an Equi- table Recovery is good, although the Equitable Tenant to the Praecipe has the legal Estate'. It is doubtful, whether there can be an equitable m See as to this post. Selwin v. Thornton, Ambl. ■ North v. Champernon, 545, 099. and 1 Bro. C. C. 73. 2Ch. Cas. 03. 78. Bottelerv. in note. Boteler'v. AUingham, AUingham, 1 Bio. C. C. 72. 1 Bro. C. C. 72. * Willis v. ShorraU, 1 Atk. r North v. Champernon, 2 476. and see 1 Vera. 440. Ch. Ca. 03.78. p North v. Way, 1 Win. 13. * Shapland v. Smith, 1 Bro. and steBurnaby y. Griffith, 3 C. C. 71. Robinson v. Cum- \ ■ £76,7. uaing, 1 Atk. 473. q Robinson v. dimming, l See this point discussed. For. 104.$. C. 3IS.1 Atk. 473. SugdenVcnd. and Parch. 287. 36% EQUITY JURISDICTION. disseisin, so as to prevent an equitable Tenant in Tail, suffering an equitable recovery". It was holden in several cases, that the Tenant IB Tail of an Equitable Estate, might by bare arti- cles 1 , or by a Devise, or a Feoffment, bar the entail" ; but Lord Hardwicke decided expressly to the contrary, and held that a Tenant in Tail of a Trust Estate with Remainders over, cannot by Will or Settlement, bar the Remainders, without a Re- covery, any more than Tenant in Tail of a legal Estate x . Upon its being urged that a Lease and Release would bar an equitable Entail, Lord Hardwicke said, " It was never so determined., and I hope never will y ." The Cestui que Trust may devise the Trust Estate z : By his Treason a , or Felony h he forfeits it. It is subject to an Extent", (unless it be a Trust of a term of years,) and it may be taken in execution K If the Equitable Title is not acted upon in the same time the legal Title should, it is barred*. So, Trust Estates, descend in the same manner a lord Granville v, Blyth, ■ Greenhill v. Greenhill, 16 Ves.224. 2 Vern. 680. T Bates v. Bayley, 2 Vern. a See 33 Hen. 8. c. 20. s. 2. 226. b Hob. 214. Hard. 490. w Otway v. Hudspn, 2 Vern. c Hard. 405. 583. Woolnough v. Wool- d See29 Ch. 2. c. 3. s. 10. nough, Pre.Ch. 228. 1 Vern. 14. e Medlicot v. O'Donel, 1 Ball x Kirkham against Smith, and Beatty, 167. Hovendon v. Ambl. ; 518. S.C. iVes. 260. and Lord Annesley, 2 Sch. and aee 2 Vern. 552. Legate v. Lefr. 630. Bonny v. Ridgard, Sewell, IP. Wins. 91. Burna- 4 Bro. C. C. 138. Andrew v. by v. Griffin, 3 Ves. 277. Tollett Wrigley, 4 Bro. C. C. 125. v. Fletcher, 5 Ves. 13. Townshend v. Townsend, 4 » Kirkham v. Smith, 1 Ve». Bro. C. C. 138. 260. S. C. Ambl. 518. TRUSTS. 3G3 as legal Estates do, whether Customary, (as Bo- rough English, or Gavelkind) or otherwise': and there may also be a posscssio fratris of a Trust g , as by the Common Law, there was of an Usc h . The Power of the Trustee over the legal Estate, vested in him, exists only for the benefit of the Cestui que Trust. He may, indeed, by means of that power, prejudice the Cestui que Trust, by ati- enating the Estate, either wholly, or partially, (as in the case of a Mortgage) to a purchaser, for a valuable consideration, (a voluntary conveyance would have a different effect j ;) but such an abuse' of Trust can hardly occur, unless where a Trus- tee is in possession of the Trust Estate, and even then very rarely. But a Judgment against the Trustee, or a Commission of Bankruptcy against hinr k , will not, in Equity, affect the Estate, nor can his Wife claim Dower, or Free bench out of it ', nor can the Husband of a Female Trustee be en- titled as Tenant by the Curtesy" 1 . It has been doubted whether a Trustee will by Treason or Felony forfeit the Trust Estate ; and it has been questioned whether, supposing a Forfei- ture, the Lord who claims by Escheat, or the Crown claiming by that Title, is bound by the ' Banks v. Sutton, 2 P.Wms. v. Davis, 2 P. Wras. 318. 3 P. 713. Fawcet v. Lowther,2Ve8. Wins. 187. note A. quot. 304. and see 2 P. Wins. 73(5. 1 Sand, on Uses, 279. and sec « 2 P. Wins. 713, 730. Medley y. Martin, Finch 03. h Corbet's Case, 1 Re|>. SS\ ' Hinton v. Hinton, 2 Ves. 1 Pye v. George, 1 P. Wins. 034, 038. Noel v. Jevon, 128. Saunders v. Dehew, 2 2 I'reetu. 43. Bevant v. Pope, Vein. 271. Daniels v. Davison, 2 Freem.71. quot. 1 Sand, ou 16 Ves. 249. Uses. 279. k Finch v. Earl of Winchel- "' dishorn v. luglia. 7 Yin. sea, 1 R Wins. 278. Bennett 157. 3(34 EQUITY JURISDICTION - . Trust n ; but by a very recent Statute °, it is pro- video* that, where Trust Property escheats to the Crown, His Majesty may direct the execution of the Trusts, and may make grants to Trustees for that purpose, or may make Grants to any per- sons for the purpose of restoring the same to any of the family of the Persons whose Estates the same had been, or of rewarding any persons making discovery of the Escheat: but it does not deter- mine, in what cases, Lands escheat ; for escheat, it must be remembered, may be ob defectum ten ends ^ as well as, pro delicto tcnenhs. A Trustee may devise the Trust Estate, but the devisee takes the Estate subject to the original Trust p . But though, even under general words % the Trust Estate may so be devised, yet wherever the Trusts under which the Trustee's Property is devised, are inconsistent with the supposition that the Trust Estate was meant to be included in the devise, it will be presumed they were not intend^ ed to pass, and will not pass 1 . It is observable that by whatever means, whe- n In Comyn's Digest, Tit: Prec. Chan. 200. 1 Eq. Abr. Forfeiture, B. 1. it is said the 384. in note. Burgess and Lands are not forfeited ; but in Wheate, 1 Bl. Rep. 123. Wike'a Case, Lane,54. Jenkins, ° 39, 40 Geo. 3. c. 88. s. 42, 190. Cas. 92. Hard. 40(5. * Braybrooke v. lnskipp, Brooke, Feoffment al. Uses, pi. 8 Ves. 417, Mm low and Smith, 31. Vin. Abr. Uses, pi. 4. in 2 F. Wins. 200. note quoted, 2 Foubl. Treat. «Marlow v. Smith, IP. Wms. Fq. 108, in notes, it seems to 97. 1 Atk. 005. in note, have been taken for granted; r See Lord Bray broke v and the only question was, lnskipp, 8 Ves. 4:J5. Reade whether the Crown was bound v. Reade, 118. 8 T. R. winch l>y the Trust, which they de- cases overrule Attorney cided in the Negative; but as General v. Buller, 5 Ves. to that sue Geary v. Bearcroft, 339. and what is said 1 Bro« Carter 07. Eales v. England, C. C. 198. TRUSTS. tlier by Conveyance or otherwise, a Person oh. tains the absolute Ownership at Law of the Estate, though he acquired that by an equitable Title, and both either come to. ether or are after- wards united in hiin, the legal Instate will prevail, and the equitable Estate is totally ^ r one for the purpose of being acted upon in a Court of Equity 9 . It may also be remarked, that where Property is bequeathed in Trust, but no Trustee is ap- pointed, the Court in the case of real Estate* considers the Heir at Law as a Trustee ; and in regard to personal Estate^ considers the per- sonal representative as a Trustee, and will, itself, see to the execution of the Trust a . Where an Estate, for instance, is devised in Trust, to a liody Corporate, which by the Statute of Mortmain, cannot take, the Uses are not de- feated by this deficiency of the Trustee, but at- tach upon the Estate the Law raises, and the Heir at Law becomes a Trustee to the Uses of the Will\ Having made these few brief observations, upon the general nature of Trusts, and limited the bounds of our Enquiry, we may proceed to con- sider, 1. Express Trusts created by Deed. The conveniencies and necessities of Mankind daily give rise to a vast variety of express Trusts, created by Deed ; nor is it here pretended to enu- ■ Selby v. Alston, 3 Ves. . b Souley v. Master. 1 Bro, 342. c.C. 81, • Vid. White v. White, 1 Bro. C. C. 12, 3(5(5 EQUITY JURISDICTION - . merate all of them, but only such as are of th» most importance, and in common use : such as I. Trusts created in Marriage Settlements of real or personal Property — 2. In Conveyances to Pur- chasers — 3. In Conveyances by way of Mortgage, or otherwise, for the payment of Debts ; and 4. In Assignments of C hoses en Action. I. Settlements may be made either of real or personal Property, or both ; and subject to the rules by which the boundaries of Limitations and Accumulations of personal Property are fixed , a Settlement may be made according to the pleasure of the Settlers. Personal Estate may, by a careful Settlement, be rendered unalien- able as long as real Estate. Terms for Years, or personal Chattels, may be limited or devised in Strict Settlement to one for Life, and afterwards to Sons and Daughters in • See 39 and 40 Geo. 3. c. Estate to lay unalienable; but 98. an Act wrongly attributed by that Act, the accumulation to Lord Eldon, see 11 Yes. is limited. 148. Previous to the Act of Par- A Trust by Will, for accu- liament a person might by mulation beyond the time ah- executory Devise, dispose of lowed by the Statute, is void his Property, and the accu- only for the excess. Where, mulation of Rents and Pro- therefore, the accumulation fits for a Life or Lives in be- was directed to be during a ing, and 21 years, and a small Life, it was held not to be void portion of time, the period of under that Statute, but to be gestation. This was one of the good for twenty-one years, if points determined in the great the Life so long continued, Case of Thelluson v. Wood- and only void for the excess, ford, 4 Ves. 227. or, in other that is to say, for so long as words, he might order an ac- the Life continued after that cumulation to go on during period. Griffiths v. Vere, 9 that period of time-, during Ves. 131 ; and tee Lengdon v, ^hich the Law permits the Simpson, 12 Yes. 295. TRL^TS. 307 Tail d , and may be rendered transmissible as Heir Looms are ; but such Property cannot be made unalienable longer than Lives in being 1 , and twenty-one years after, or in the case of a posthumous Child, a few months more . If the executory Limitations of Personalty are on Contingencies too remote, the whole property is in the first taker ; and whatever words would give a clear Estate Tail ( in Land, will give the absolute Property in personal Estate K , because no Recovery could be suffered of such an Entail 1 ' ; but this doctrine, it seems, does not hold, in cases, where, against the common import of the words, an Estate Tail is raised, by an ingenious construction of a Will, to effectuate the general intention \ Estates pur autre vie may be devised or limited in strict Settlement byway of Remainder, like Estates of Inheritance ; and such as have Interests in the nature of Estates Tail, may bar their Issue, and all Remainders over, by alienation of the Estate d Vid. Har.. Co. Lit. IS 6 . 2J. Moore 809. hie v. Ivie, n. 7. 20\ n. 5. 1 Atk. 430. Daw v. Lord e Sheffield v. Orrery, 3 Atk. Chatham, 7 Bro. P. C. 453. 267. Hiygins v. Dowler, 2 Toml. Edit. Butterfield v. Vein. 660. But that case is Butterfield, 1 Ves. 188. Fearne incorrectly reported ae noticed on Executory Devises 404,5. in Clare v Clare, MS. Stanley Cth Edit. Glover against Stro- v. Lee, 2 P. Wms. 018. Sab- thoff, 2 Bro. C. C. 33. Chaiid- berton v. Sabberton, For. 55. less v. Price, 3 Ves. 90. more. S.C.MS.Doileyv.Sparrat,MS. fully stated 13 Ves. 479. in and see Cambridge v. Rous, note. 8 V.s. '24. and 12 Ves. 218. h Fordyce v. Ford, 2 Ves. f Jacobs v. Amyatt, 4 Bro. 539. C. C. 5 13. ■ Chandless v. Price, 13 Ves. s Tatton v.Molineux, Polex. 480. in note. 36S EQUITY JURISDICTION. pur autre vie : nor is the having of Issue neceS* sary to the giving effect to such alienation k . An Annuity cannot be entailed. When granted with words of Inheritance, it is descendible ; but as t< it; security, is personal only : it may be granted in fee ; of course it may as a qualified or conditional fee, which must end or become ab- solute in the life of a particular person; but it can- not be entailed, and consequently there can be no Pemainder of it, for there can be no Remainder of Property which is not within the Statute dc DonisK Where Leasehold Estate is intended to be set- tled with real Estate, the mode of doing it, is, either by special Limitations' 11 , or if general words are preferred, the Deed directs that it shall go along with the real Estate as long as the rules of Law and Equity will permit it to be enjoyed with the real Estate ; that is, until a Reco- very can be suffered ; viz. till the age of twenty- one of the Tenant in Tail; but the rule of Law will not allow it to go farther ; whereas the other will go till a Recovery n . The exigencies of Families give rise to various forms of Settlement ; nor is it here intended to no- tice all the variety of Trusts that are to be found in Settlements, but only the most important of those that are usually resorted to. k Harg. Co. Litt. 20. n. 5. m As in Felhamv. Gregory, 1 Turner against Turner, 1 5 Bro. C. U. 435. JJro C C 324,5. n Watkins v. Lea, 6 Yes. 041. TRUST8. 209 In the ordinary Settlements of real Estate in strict Settlement by the intended Husband, a Trust is usually created, to secure a Rent-charge to the intended Wife, for her Lite, in case she survives her Husband, in bar of Dower. If the intended Husband has no real Estate, on which to charge a Jointure, a sum of Money is, in general, invested in the Funds in the name of Trustees, in Trust, upon the Husband's death, to pay the Wife the Dividends. Any provision, it seems, however inadequate or precarious it may be, which an adult before Marriage agrees to accept, in lieu of Dower, will amount to a good equitable Jointure. A female Infant (as hath been before observed) may by Agreement before Marriage bar herself of Dower , Freebench p , or her thirds ; provided the provision be as certain as her thirds q ; but it has been held, that she may, on her Husband's death, elect to take under the Settlement, or, to take her Dower or her thirds, as if there were no Setiic- ment r ; but if she does Acts after his death, shew- ing acquiescence under the Settlement, it will be binding ". As a Woman may by ngreement or composition before Marriage, bar herself of her customary ° Earl of Buckinghamshire 4 Bro. C. C. 500. Smith v. and Ihurv, 5 Bro. l\ C. 570. Smith, 4 Yes, lfiO. Chitty v Chttty, a Ves. 540. r Glover v. B..ies, 1 Atk. p Walker v. Walker, 1 Ves. 4v.>. Arclicr v. IV p.j, 2 Ves. 54. 5-2-3. i Carruthevs v. Canuthcrs, s Archer v. Pope, 2 Ves. 527. VOL. I. KB ^70 EQUITY J *T»IB»lCX10jr< Share 1 , or her thirds": so it is a ruie, that where a Wife has compounded with her Husband, he is considered, in regard to the custom, as leaving no Wife v , and is not considered as a pur- chaser of her third w . So, if the Husband covenant to release the or- phanage Share of his intended Wife, this ope- rates as an extinguishment of the Wife's right to the orphanage part*. And if a Freeman of London, before Marriage, settles part of his personal Estate upon his intend- ed Wife, to take effect after his death, without mentioning it to be in bar of her customary part]; this will bar her of such customary part y ; but a Jointure made by a Freeman on his Wife, and ex- pressed to be, in bar of Dower, will not bar the Wife's claim to a customary Share *. Where a Provision for a Wife, in articles be- fore Marriage, was declared to be in full satisfac- tion of Dower, or any claim or right by com- mon Law, Custom of the City, or any other Law or Usage notwithstanding, this was held to bar the Wife from claiming under the Statute of Distri- butions**; and, it seems, it would preclude her 1 Bliinden v. Barker, 1 P. * Ives v. Medcalfe, 1 Atk. Wins. 633. S. C. 10 Mod. 451. 64. Readv. Shelf, 2 Atk. 644. ' Lewiu v. Lewin, 3 P. Wms. u Glover v. Bates, I Atk. 15. 439. 2 Babbington v. Greenwood, v 2 Atk. 644 ; and see Love 1 P. Wins. 530, S. C. Pre. Ch. v. , 1 Vein. 6. 505. w Drnce v. Dennison, 6 Ves. "Glover v. Bates, 1 Atk, 393. Morris v. Burroughs, 1 439 ; see Benson v. Bellabis, 1 Atk. 403. Vein. 15. i t stj, 371 fium claiming her Paraphernalia under the Custom of London h . Provisions made by Settlements, though not expressed to be in bar of Dower, amount fre- quently to an implied bar. A l J i lor in- stance, by Covenant in a Marriage 5 ;ent, has been Holden to amount to an implied bar of Dower . And where a Husband covenanted to leave, or to pay at his death a Sum of Money to a Person, who, indeperidant of that En< i meht, by the relation between them, and the Provision oftlie Law, attaching upon it, woulu take a Pro- vision, the Covenant is to be construed with re- ference to that ; and the Court will not look upon the slight difference between leaving and pay- ing, or whether Payment is to_be within three, or six Months d . It has been generally laid down that in all cases where a Husband makes a Settlement of his own Estate on his Wife, in consideration of her Fortune, the Wife's Portion, though consisting of choses in action, and though there be no par- ticular Agreement for that purpose, is considered as purchased by him, and will go to his Execu- tors'; but later cases seem to establish that, the Husband does not by a Settlement become a Pur- chaser of the Fortune that may afterwards come b Read v, Snell, 2 Atk. C42. e Cleland v« Clehmd, Pre. Benson v. Bellasis, 1 Vein. 15. Ch. 60. Blois v. Martin, 2 Vern. c Vid. Garthshore t. Chalie, 501. Packer v. Wvndham, 10 Ves. 20. Pre. Ch. 412. a:jd see no;e Mb. 10 Ves. 13. but see D. to a P. Wins. 199. Kirk man v. Kirkinan, 2 Bro. C. C. 95. KB ° 372 EQUITY J.C11JSDICTX0N. to his Wife, if the Settlement be expressed, or im- ports to be f , in consideration of her Fortune, as specified and described in the Deed itself; and Property afterwards coming to her, and not re- duced into Possession by the Husband, would survive to her 5 ; but if the Settlement is in con- sideration of the Fortune, she is, or may he en- titled to h , or the contents of the Settlement plainly import that, as much as if it was express- ed, in such Case, if any thing comes afterwards, during the Coverture, to the Wife, the Husband is considered as a Purchaser, and takes it. Where there is an Agreement between Hus- band and Wife before Marriage, that the wife shall have to her separate Use either the whole or particular parts of her personal Estate, she may dispose of it by an act in her Life, or by Will, and she may do it by either, though nothing is said of the manner of disposing of it. It is dif- ferent as to her real Estate, for that will descend to her heir at Law, and that more or less bene- ficially ; for the Husband may be Tenant for Life ; if they have Issue ; otherwise not ; but still it descends to her Heir at Law. A Woman, however, on her Marriage may, without a fine, dispose of her real Fstate, and prevent its going to her Heir at Law ; but that, it seems, can only be done, either by way of Trust, or power over an Use. In the first instance, suppose a Wo- f Carr v. Taylor, 10 Ves. Aml.l. 092. Garforth v. Brad- 57». ley, 2 Ves. 077. « Salwiy against Salwey, " Mitibrdv. Mitford, 9 Ves. 95,0. TRUSTS. 378 man having a real Estate before Marriage, and cither before or after Marriage, by a proper Con- veyance, (if after Marriage, it must be by Fine) conveys that to Trustees, in trust for herself during her coverture, for her separate Use. and afterwards that it shall be in Trust for such Person, as she shall by any Writing under her hand and seal, or in nature of a Will appoint, and in de- fault of appointment, to her lieirs, and she makes such an appointment, that will be a good declaration of the Trust, and the Heir at Law would be reme- diless'. For though, in the notion of the Law, a Wife cannot make a Will k , yet, where she has a sepa- rate power over her Estate, she may dispose of it by Will, and it must be propounded as a Will in the Spiritual Court l ; and if the Wife has not ap- pointed an Executor, the Court will grant ad- ministration to the Husband, with the Paper or Testamentary Schedule annexed" 1 . Whoever takes under such Will, takes by vir- tue of the execution of the power, and by the power coupled with the Writing, and as if the limitation in that Writing of appointment had been contained in the Deed creating the power. But notwithstanding that, and though such Writ- ing is not a proper Will, it has the effect and 1 Peucocke v. Monk,' 2 Ves. ! See Henley v. Phillips, 2 100. Wright against Engle- Atk. 48. field, Ambl. 4ns. Wright v. ■ Ross v. Ewer, 3 Atk. Cadogani 6 Iko. P. C. 150. ICO. * See George against » Ambl. 627, 374 EQUITY JURISDICTION. consequence of a Will td three intents -. First, The words are to have the like construction as if it was a proper Will ; Secondly, Such Will is ambulatory until the death of the Testatrix, and therefore though the party taking thereby, takes by virtue of, and under the power, yet notwith- standing that, such appointee must survive the Testatrix, before he can take ; Thirdly, If they do survive the Testatrix, they can take only from the time of the death of the Testatrix, and \ » do not take as from the time of the power". So, the Wire may dispose of her Estate, by way of power over an Use : as if she conveyed the Estate to the Use of herself for Life, re- mainder to the Use of such persons, as she by any Writing, &c. should appoint, and in default of appointment, to her own right Heirs, this is a power reserved to her, and she may execute the same . But, a Feme Covert, cannot, it seems, bar her Heir by a bare Agreement , without doing any thing to alter the nature of the Estate p . " Sup- pose/' says Lord Hardwicke^ " a Woman hav- ing a real Estate before Marriage, in consider- ation of that Marriage, enters into an Agreement with her Husband, that she may by writing un- der her hand, executed in the presence of Witnes- ses, or by .will, dispose of her real Estate, will n Southby v. Stonehouse, p See Hodson against Lloyd, 2Ves.6lO. 2Bro. C. C. 543,4. George v. See 2 Ves. 191. and see Aiubl. 028. but see Travel v. Travel, 3 Atk. 711. Rippon v. Dawding, Ambl. Tomlinson v. Deighton, IP. 565. and Wright v. fcuglefield, Wms. 149. Ambl. 468. TRUSTS. 'Al'j this bind the Heir at Law ? It rests in \ ment, and it' she does it, though it may hind her Utisband from being Tenant by the curte that arises from his own Agreement ; but what 1- that to the Heir at Law- Still she is a 1 cine, under tlie disability of Coverture at the time of the act done ; ami if she attempts to make a Will the Instrument is invalid. The only question that could arise would be, whether such an Agreement between her and her Husband would not -jive her a right to come into a Court of Equity after the Marriage, to compel that Husband to carry this into Execution, and to join v/ith her in a Tine to settle the Estate, either on such Trusts, or to such and such Uses ? and if it is such an Agreement as the Court would decree to be far- ther carried into Execution by a proper Convey- ance, then the question may be whether her Heir at Law is not to be bound by the consequences of that Agreement? but that is the only way in which it could be brought in. But if the Affree- ment cannot be carried into Execution, though she might have power to bar her Husband, it be- ing a voluntary claim from her, and the Law casting the descent on her Heir at Law, it seems it could not be done' 1 .'' ' ; If a Woman has a separate Estate in Land for Life, she may in Equity seli that Interest*/' •» Per Hardwicke in Ld. Pen- r P;wke?. and Whites, 11 tes cock v. .Mo k,2Ves. 191. and 2;-2. and see what i> said in ettipluce v. Georges, 3JJro. Bui don v. Dean, 2 Ves. jun, C. C. 10. GO: 376 EQUITY JURISDICTION'. Having thus noticed Settlements to the sepa- rate use of a Feme Covert, it may be an excu- sable digression, to advert to the principles that have been laid down respecting such separate Estate, — the manner in which it may be created, otherwise than by Settlement, and the domi- nion which the Wife possesses over her sepa- rate Property ; as well as to notice those Settle- ments, which Courts of Equity compel Persons to make, who apply to them for their assistance to obtain Property, in right of a Feme Covert. The Settlement which a Person clandestinely mar- rying an Infant Ward of Chancery, is compellable to make, has already been considered z . By devise, a married woman may acquire a sepa- rate Interest without the intervention of Trustees ; and the legal Estate devolving on the Husband, he will be decreed to be a Trustee for the Wife *• though Lord Cowpcr, in the first case on the sub- ject, appears to have expressed some doubts b . Nor are technical words necessary to make it a separate Trust, for if an Estate be devised to the Husband, "for the livelihood of the Wife" this has been held to make him a Trustee . So, a Legacy to a feme Covert, "'her receipt to he a sufficient discliar ge to the Executors" makes the Husband a Trustee for her d ; and a present to the Wife by the Husband's Father, or even by a 1 Ante, p. 280. c Davley v. Darley, 3 Atk. * Bennett v.Davis, 2 P. Wms. 390. but see the observations 316. on this ease, 3 Bro. C. C. 384. ** Harvey v. Harvey, I P. d Lee against Prieaux, 3 Bro. Wins. 124. S, C. % Vera. 059. C. C. 381. TRUSTS. 377 Stranger, during the coverture, has been consul, r- ed as a Gift to her separate use . In general, how- ever, it seems, that to prevent the operation of the marital right over the property of a married Woman, a clear intention that it shall be to her separate use must appear ; and therefore a mere trust, to pay the Interest to her for Life, without saying to her separate use, is not sufficient: the mere intervention of Trustees never having had the effect of vesting a sole and separate Interest in the Wife f . A Personal Gift may be made to a Feme Covert without a power of disposition, or with a limited power"; but personal Property, unless tied up where it is enjoyed separately, will be so, with all its incidents' 1 . It is a Rule, therefore, that a married Woman is to be considered as a Feme Sole, in respect of her separate Property*; except, perhaps, in regard to gifts or contracts, exclusively in favor of her Husband k ; and as to ■ Graham v. Londonderry, Smith, 4 Rio. C. C. 340. Pea- SAtk. 393. coek v. Monk, 2 Ves. 190. f Lamb v. Millies, 5 Ves. Socket and Wrav, 4 Hro. C. 517. C. lS(i. S. U. in note to 2 Aik. 5 WngstafTandSmith.O Ves. 50. Heatlev v. Thomas, 15 524. Hyde v. Price, 3 Ves. Ves. 596. Wau-stafr'and Smith, 437 ; and see More v. Huish, t) Ves. 524. Wills and Daw- 5 Ves. 094. kin:,, 12 Ves. 581. " Fettiplaee against Georges, * See P\ bus v. Smith, 1 Ves. 3 Bro. C. C. 10. J on. 189.' S. C. 3 Bro. C. C. 1 Hulme v. Tenant, 1 Bro. 347. Milnes v. Busk, 2 Ves. C. C. 21. and the observations Jim. 498. Dalbiuc v. Dalbiac, on that case in Nantes v. Cor- 10 Ves. 123. Richards \. rack, 9 Ves. 188. LUHav. Airey, Chambers, 10 Ves. 580. T.re v. I Ves. Jun. 278. Pvbus v. Muggeridge, 18 Ves. 108. Std 3?S EQUITY JURISDICTlOXo contracts with the Trustee of her separate Estate j who is not allowed to deal with her 1 . She may convey away her separate Estate, her Life Interest in Stock, tor instance" 1 ; nor is it necessary the Trustee should join in the con- veyance ", unless his assent is expressly rendered necessary by the Instrument giving her that pro- perty". The Court will never encourage the locking up of Property, which would be the case, if separate property could not be disposed of p . She may grant an Annuity out of her separate property i, or enter into a Note, Bond r , Con- tract 8 , or Agreement, as if she were a feme sole*; and a Court of Equity will decree a satisfaction by the Trustees, out of her Property v . She may make a Contract, of which her Hus- band and herself enjoy the benefit w , and may dispose of her separate property by Will*. If a Feme Covert living from her Husband, and having a separate maintenance, contracts debts, Vid. Pawlet v. Delaval, 1 Ves. r 2 Ves. 193. Norton v. 518. 2 Ves. 670. Ellis v. At- turville, 2 P. Wins. 144. ap- kinson, 3 Bro.565. proved in Socket!; and \Y ray, 1 Dalbiac v. Dalbiac, 10 in note to 2 Atk. 58, Ves. 123. s 2 P. Wins. 144. m Chesslyn v. Smith, 8 Ves. l Master v. Fuller, 1 Ves. 183. Jan. 513. S. C. 4 Bro. C. C. n 1 Ves. 518. 19. ° Pybus v. Smith, 1 Ves. v Bullpin v. Clarke, 17 Ves, Jun. 193,4. Essex v. Atkins, 365. 14 Ves. 5i7. w Masters v. Fuller, 4 Bro. p Stamford v. Marshall, C. C. 19. S. C. I Ves. Jun. 2 Atk. 69. 513. 2 Atk. 380. Stamford v. •* See Essex v. Atkins, 14 Marshall, 2 Atk. d9. Ves. 542. overruling Mores v. x Fetti place against Georges, Huish, 5 Ves. 693. 3 Bro. C. C. 8. S. C. 1 Ves. TRUSTS. 37° the Creditors, by a Bill in Equity, may follow the separate maintenance, whilst it continues ; but when that is determined, and the Husband dead, they cannot, by Bill, charge the Wife's Jointure y '. Where Money was vested in Trustees in Trust for Husband and Wife, successively for Life, remainder to the Children, and in default thereof to such Person as the Wife should appoint, a deed of the Wife conveying this contingent In- terest, was, upon a Bill filed for that purpose, established, and the consent of the Wife taken in Court 1 . It is observable that, in all these cases, illus- trative of the absolute power of a Feme Covert over her separate Property, no Examination in Court is necessary ; as it is, where she is parting with an Equity \ The Wife cannot by exami- nation in Court, exercise any greater or other power over her settled Property than is reserved to her by the Settlement b . The contrary doc- Jun. 40. Wa^staflfand Smith, tion of the power, witnesses Ves. 521 ; and see Rich and were not required to the Will, Cocki 11, in I) Ves. 375. Heatley vet in addition to the Proceed- y. Thomas, 15 Ves. 590. If a ings in the Ecclesiastical feme covert has a power of Court, there must be proof of appointment by will with wit- her signing the Will. nesses, in order prove a due J Kinge r. Delaval, 1 Vera, execution of her power, there 320. must be the judgment of the 2 Guise v. Small, 1 Anstr. Ecclesiastical Court, that the 277. instrument is testamentary ; a See Sturgis v. Corp, 13 and proof in the Courtof Chan- Ves. 192; and see Eraser and eery, by the Witnesses to the Baillie, 1 Bro. C. C. 518. instrument, Rich v. Cockell, b Richards v. Chamber*, 9 Ves. 376. or if in the execu- 10 Ves. 585. 3S0 LQUITY JURISDICTION. trine in M'Cormic and Buller, has been over- ruled 1 . In those cases where an Examination in Court of the Wife is necessary, the Property does not pass by force of the Examination, or the inter- vention of the Court; but the Equity, by the ronsent of the Wife, being put out of the way, the Court makes its Decree. It is observable, however, that where the sepa- rate Estate is to be disposed of by the Feme Co- vert only in a particular manner prescribed by the Instrument giving the Estate, a Feme Covert can- not charge her separate Estate, not even by con- sent in Court a , unless it be done, eo modo, as pre- scribed by the Instrument, creating the separate Estate b . So far as the Instrument creating her separate Estate makes her a Proprietor, so far is shea/eme Sole; and if she has pledged her Estate according to her power, the Trustees must hold it to the uses she appoints c . If the Trust is, to pay the Rents and Profits to her, upon an Instru- ment signed by her since the last payment, an In- strument signed before would not do d . If, there- fore, as in Pybus and Smilh e , and other cases, the Wife has only a power of disposing of separate Pro- 1 Stated 8 Ves. 174. in Ster- b Jones and Harris, 9 Yes. ling and Rochefort, and in 497. see also Essex v. Atkins, Hidiards v. Chambers, 10 14 Ves. 540. Ves. 583. ; and see what is c Pybus v. Smith, 1 Ves. jun, said to same effect in Wool- 194. lands v. Crowcher, 12 Ves. d lb. 193. 178. ; lb. 180. * lord Strange against Small, Ambl. 204. TRUST 3. 381 perty by an Instrument in Writing, and site exe- cutes an Instrument in Writing, that will bind her separate Property ; but where the Trust was, to pay the money into the hands of the Feme Co- vert, and take a Rcceijjt from her, in Blich case the Trustees, it was held, were not justified in joining with the Wife and selling the Property. In one case where a Legacy was given to the Wife for her separate use during her Life, with remain- der to such person, and tor such uses as she should appoint &y Will, and in default of appointment to her Executors, it was ordered upon her consent to be paid to her Husband f ; but this case has been subsequently overruled, and the power of disposition confined to a disposition by Will only 5 . Where a Feme Covert granted an Annuity charged upon her separate Property, and the An- nuity, owing to the fault of the Grantee, failed, it was held that the separate Estate was not liable for the Consideration money, and that there was no Equity specifically to affect the Fund L . By marriage, the Husband acquires an absolute property in all the personal Estate of his Wife ca- pable oi' immediate and tangible possession, and if he marries without a Settlement, there is, as to such f Newman v. Cartony, men- h Jones and Harris, 9 Ves, tioned in note 1. Willats v. 494. See also Williams and Cuv, "2 Atk.08. Duke of Bolton, 2 Ves. 1:38. 8 Socket v.Wray, mentioned Sterling and Rochford, 8 Ves. in note 1. to Willats v. Cay, 104. See also Suckett aod 2 Atk. 08. S. C 4 Bro. C. C. Wrav, 4 Brc. 480. 480. 3S2 EQU ITY JURISDICTION". Property, no Equity to afford her relief'; but, it* her Property is such as can only be reduced into possession by Action at Law or Suit in Equity* he has only a qualified Interest, such as will enable him to make it an absolute Interest by reducing it into possession ; and with regard to choses in Action, if he does not reduce them into Possession, they will survive to the wife. What Interests survive to the Wife in Equity, is determined, in general, by Analogy to the Rules of Law k . As at Law her Choses in Action, not re- duced into Possession by the husband, survive to her, so do her equitable Interests in the same case survive to her in Equity. But there are some le- gal Interests which do not admit or stand in need of being reduced into possession ; being in posses- sion already and not lying in Action ; as Terms for years and other Chattels Real, of which the le- gal Title is in the wife. They will survive if no act is done by him ; but he may assign them and thereby pass the legal Interest 1 , whe- ther with or without consideration. The Analogy is followed in Equity. Equitable Interests of the same description may be transferred in the same manner. With respect to Choses in Action., they are not assignable at Law; consequently ' See Incledon v. Northcote, or it may be taken in Execu- 3 Atk. 435: tiou for his debts, but it does k Mitford v. Mitford, 9Ves. riot survive. Wildrnan v. Wild* 99. &c. &c. man, 9 Ves. 177. ? So he may forfeit the Lease TRUSTS. 383 the Husband's Assignment cannot prevent their legally surviving to the Wife. In strict Analogy, therefore, equitable Interests of the nature of Glio- ses in Action ought not to be affected by his As- signment. But in Equity* a distinction seems to have been made between a voluntary Assign- ment, and an Assignment for valuable Considera- tion ; for the Wife surviving is not bound by hi* voluntary Assignment" 1 , though she is bound by an Assignment for a valuable consideration n . Where a Husband had assigned part of his Wife's equitable Interest, viz. Dividends of Stock in Trust, for a valuable consideration, the Assignment was enforced, upon the Bill of a Sure- ty for the Husband to be indemnified against past and future payments ; the Assignment extending only to e£lOO a year out of £260* S but, it seems, if the Husband had charged the Fund to its whole amount, or to any greater extent than he did charge it, the decision would have been different p . The general Assignment in Bankruptcy has not the effect oi* reducing into Possession a Legacy of Stock, in Trust for the Bankrupt's Wife; and she by surviving, becomes entitled . And so, Stick transferred into the name of a married Woman, as next of Kin of an Intestate, m Burnet v. Kcnnaston, 12. On this subject, 9ee Fran-* 2 Vein 401. to v. Franco, 4 V. .-. *)15. n Bates v. DaaoV,2Atk.207. »• 11 Ves. 22. Lcml Carteret v. Paschal, 3 P. q Mitford v. MitfowT, 9 \ Wins. 1!)7. 87. • Wright v. Morley, 11 VesJ 3S1 EQUITY JURISDICTION. upon the death of her Husband without having done any Act with reference to it, except signing partial transfers by her, survives to her 1 '. A Possibility of the Wife may be assigned for a valuable consideration \ Where the Husband's claim to his Wife's Pro- perty must be asserted by Suit in Equity, as where the Property is vested in Trustees, who have the legal right, he cannot reach it without joining her with him in the Suit ; and in such case, the Court will make him, thus seeking for Equity, do Equity, and provide for her, unless she consents to give the Property to him '. If, for instance, a Feme Sole Mortgagee marries, and the Husband files a Bill of Foreclosure, the Court will not compel the Mortgagor to pay the Money to the Husband, without his making some provision for his Wife; or at least the Wife by an Application to the Court against the Husband and the Mortgagor, may prevent the payment of the money to the Hus- band, unless some Provision were made for her u . In all cases, indeed, where the Wife has a demand in her own right, and the Husband applies to the Court in her right, and there is no Agreement previous to the marriage v , it is an established Rule (of doubtful policy per- r Wildman v. Wildman, 3 Ves. 469. See Milner v. Col- 9 Ves. 174. mer, 2 P. Wms. 639. s Bates v. Dandy, 2 Atk. u Bosville v. Brander, 2 P. 207. Hawkins v. Obyn, 2 Atk. Wms. 459, 549. * See Brett v. Percer, 3 Atk. [ See Langham v. Nenny, 49. TliUSTS. « haps w ) that the Husband will not he allowed to obtain his Wife's fortune (unless it be under J? 100 x , or unless, perhaps, where the Property is small, and the Husband is a Freeman of London ■) without making a Provision for her; nor does an inadequate Provision for her by voluntary Settle- ment after marriage vary the Rule*. If the Wife is dead, and a Legacy is claimed by her Husband in her right, an inquiry will be directed whether the Issue are provided for 1 ; and this Equity is consi- dered as founded on natural Justice. The doc- trine is not modern ; it is adverted to in a \ early case, by the Lord Keeper Coventry b . The Rule applies not merely to the Husband, but to Persons claiming through him, whether by operation of Law, or otherwise; on the Bank- ruptcy, for instance, of the Husband, it applies to his Assignees. The Assignees of a Bankrupt take, as the Husband would have done, subject to the Equitable Interest of the Wife, and are bound to make a proper Settlement c . In one case, half the. property was given to the Wife'. A Settlement w Brown and Elton, 3 P. c Jaeobson v. Williams, 2 P. Wins. 205. 2 P. Wms. 039. Wins. 382. Exparte Colv- x 3 Bro. C. C. 237. game, 1 Atk. 192. Grey v. y See Adams and Pierce, kentish, 1 Atk. 2S0. V 3 P. Wms. 13. Sed quo. as to v. Marr, 2 Dick. 847. Mitford this, swee the stat. 11 Geo. 1. v. Mitford, 9 Ves. 87. Wright c. 18. which gives Freemen a v. Morley, 11 Ves. 101. Lamb Power of bequeathing their v. Milnes, 5 Ves. 517. Fr< Personal Estates. v. Parsley, 3 Ves. 124. Osmell v. 2 2 Atk. 448. Probert, 2 Ves. 680; Pringle * 1 Dick. 391. and Hodgson, 3 Ves. 017. u Tanfield v. Davenport, d Browne v. Clarke, 1 Yet, Tothiir, p. 114. 108. VOL. I. C C 380 EQUITY JURISDICTION, before marriage, of part of her Property to her separate use, does not bar her of this Equity e . So, too, the Rule, it seems, applies against 3 voluntary Assignee of the Husband f , and even against a Purchaser for a valuable consideration of the Wife's interest from the Husband 5 ; except, perhaps, in the case of a Trust of a Term for years, of Land, as to which Lord Nottinghat)i h ex- pressed great surprize, and others have entertained doubts \ The point, whether the Equity of the Wife can be barred or affected by the Husband's Assign- ment for a valuable consideration, was once, much questioned. Lord Alvanley admitted, that Lord Hardwicke and Lord Thurlow k intimated diffi- culties whether an Assignment for a valuable consideration might not support the right of the Assignee, or at least evade this Equity ; but he observed, " J have looked into ahnost every case; and have never seen it determined, that any such Equity does exist in favor of the Assignee 1 •" Sir William Grant seems to have thought there were some cases very difficult to reconcile with ' Burdon v. Dean, 2 Ves» Turner's Case, 1 Vern. 7. Tu- jun. 607. dor and Samyne, 2 Vern. 270. 1 Jewson v. Moulson, 2Atk. and see Jewson v. Moulson, 420. 2 Atk. 420. * Macauley v. Phillips, k See what Lord Thurlow 4 Ves. 19. and see Wright and said in Worrel v. Marlar, and R utter, 2 Ves. 711. Eushan v. Pell, mentioned, b See Pitt v. Hunt, ] Vern. 1 P. Wms. 459. in note. 18. » Like v. Beresford, 3 Ves, '4 Ves. 19; Sir Edward 511, 512. and see Pope v. Cra<» shaw,4Bro, C. C. 326. trusts. 387 Lord Alvanleys proposition; for that there was hardly any other ground upon which Lord Hard* wieke" proceeded, in some of the cases before him". But, whatever doctrine formerly existed, it is now clear, that an Assignment of all the Wife's Pro- perty, though for a valuable consideration, would not avail", even in favor of Creditors p , so as to deprive the Wife of her Equity. If the Father of the Wife covenants to pay a sumofa£lOOO to the Husband, this is no part of the Wife's Estate, and maybe obtained without a Settlements Whenever the Husband can come at the Estate of the Wife without the aid of a Court of Equity, the Court cannot interfere". He may dis- pose of the Trust of a Term which he has in right of his wife, as well as of the legal Estate of a Term which he has in her right, without making a Settlement s . So also, if the Wife's Debtor pay her debt to the Husband 1 ; or if, before a Bill is filed, a Trustee who has the Wife's Property, real or personal, chuses to pay the Rents and Profits of the real, or hand over the personal Estate to the Husband, (an improper Act on m See G rev and Kentish, p Prior v. Hill, 4 Bro. C. C. 1 Atk. 280. but said to be 139. "arrant nonsense" as reported, q Brett v. Forcer, 3 Atk. 1 Dick. 494. Bates v. Dandy, 405. 2 Atk. 203. and see Lord Car- r See Attorney General v. teret v. Paschall, 3 P. Wins. Whorewood, 1 Ves. 539. 199. before Lord Kin^. s Tudor v. Samyne, 2 Vern. n Wright v. Morley^ 11 Ves. 270. 17. S.C. MS. ' Mitford v. Mitford, 9Ve*. ° Like v. Beresford, 3 Ves. 100, 101. Jewson v. Moulson, 606. 3 Atk. 419. c c 2 388 EQUITY JURISDICTION. . his part*,) the Wife has no remedy; but, after a Bill Jiled, such Trustee cannot exercise a discretion ; for the Bill makes the Court a Trustee, and takes away his right of dealing with the Property, as he had it previously b . The Husband, it seems, may transfer Bank Stock, be- longing to his Wife, and the Bank cannot prevent it, nor can a Court of Equity, in such case, in- terfere to procure a provision for her*. The equitable Right which a married Woman has, in a Court of Equity, to a provision out of her own Fortune, before her Husband reduces it into Possession, stands upon the peculiar doctrine of such Courts. The habit of the Court has al- ways been of itself, and without any application previously made by the married Woman, to direct an Inquiry, where Money has been carried over to her Account, whether any Settlement has been made, adequate to the Fortune she then possessed 41 ; for the Money is carried over, sub- ject to that Inquiry ; and the constant course has been to direct a Settlement, not upon the Wife only, but upon the Children also. She is not permitted to say she claims a Settlement for her- self and not for her Children \ She has the op- tion not to have any Settlement made, but if a Settlement is to be made, it is always directed a See Lord Elibank v. Mon- Ves, 176. and see Pringle v. • tolieu, 5 Ves. 743. Hodgson, 3 Ves. C20. b Murray v. Lord Elibank, " ,l Lady Elibank v. Mont o- 10 Ves. 90. and see Glaister lieu, 5 Ves. 743,4. March v. v. Hewer, 8 Ves. 206. Macau- Head, 3 Atk. 721. y v. Philips, 4 Ves. p. 18. ' Murray v. Lord Elibank, c Wildman t. Wildman, 9 13 Ves. 6. TRUSTS. for the benefit of the Wife and (Children '. She m \ upon examination apart from her Husband, and with full knowledge, of hef right, the same being ascertained g , waive a Settlement b , even in favo> of a Husband who is Insolvent', and she can do it in that way only k : an Agr< i oienl out ofCourt, even a\ here the Wife lives apart from her Hus- band, is insufficient '. It seems doubtfuh whether Children have any substantive and independent right to claim a Set- tlement, out of the property of their Mother, if a Settlement was not directed during her Life". Lord Hardwicke seems to have thought they had such a right"; but in a subsequent case beheld a different doctrine ". Sir Thomas Clarke consider- ed the Children as having aright ; but his Decree was afterwards reversed by Lord ffiorthi?igtoii ''; and clearly, if there has been a decree directing a Settlement on the Wife and Children, and she does nothing to waive the Equity, (fur in this stage she may waive it as to herself, but not, perhaps, as to ' Murray v. Lord Elibank, ' Macauluy v. Phillips, 4 13 Ves. 0,7. Ves. 15. g Sterling v. Kochfort, 8 Ves. m Murray against Lord Eli- 164. Wooliands v. Cfoueher, hank, 1'J W . 7. 12 Ves. 178. Edmonds v. n GroSVenor \. Lane, 2 Atk. Townshend, 1 Anstr. 98. 180, and see 2 \ ess. 072. h See Wright v Rutter, 2 ° lleaile v. Greenback, \i Ves. G77. Dimuiock against .Atk. 717. Atkinson, 3 Bio. ('. C 195. p Scriven against Tapley, 1 Willats v. Cay, 2 Atk. Ainbl. 509. see also Cockel v. 07. but see ex parte Higham, Phips, 1 Dick. 891. These 2 Ves. 579. cases arc noticed by Sir Wil- k Macau lay v. Phillips, 4 bam Grant, in Murray and Ves, 18. Lord Elibank, 13 Ves. 7. 590 EQUITY JURISDICTION. her Children q ,) and she dies before the Report, the Children are entitled*. So, it after a Proposal of a Settlement by the Husband, he dies, the Children would have a right to have it carried into execution 8 . There is no instance ofaDeltor calling upon the Court to interpose an Equity for the Wife 1 . A Consent by the Wife, de bene esse, on a Bill for that purpose, may be taken for th» sale of the Wife 's reversionary contingent Interest in Stock"; for, it seems, unless such Consent is c. ta...ed, the Wife might, at a future day, set aside the Contract^ In all these cases where a Settlement is made, the Husband is considered as entitled to the Income of his Wife's Equitable Interest, unless he has received some Fortune with her, or has misbehaved v , as by running away with a Ward of the Court w , or is separated from his Wife*, or leaves her unprovided for y , or has become a Bank- rupt z , or makes a general assignment for the benefit of his Creditors 1 . i See 2 Ves. 672. in Saddington and Kinsman, 1 r Murray v. Lord Elibank, Bro. C. C. 47. 13 Ves. 1. S. C. 10 Ves. 84. v Macaulay v. Phillips, 4 on demurrer; and see Macau- Ves. 15. See Bond T. Sim- ley v. Phillips, 4 Ves. 19, 20. mons, 3 Atk. 20. and also Becket and Becket, w See Like v. Beresford, 3 1 Dick. 343. Rowe v. Jackson, Ves. 506. 2 Dick. 604. * Ball and Montgomery, 4 s A non. 2 Ves. 672. Bro. C. C. 339. S. C. 2 Ves. 1 Glaister v. Hewer, 8 Ves. jun. 191. 206. y Sleech v. Thorington, 2 Woollands v. Crowcher, Ves. 562. 12 Ves. 174, overturning the 'Wiseman v. Mason, IP. Argument of Mr. Madocks Wms. 459. in note. • Prior v. Hill, 4 Ves. 138. TRUSTS. 391 If a Husband who has received the greatest Part of his Wife's Portion, (it would be other- wise it seems, if he had received no part of her Portion b J refuses to make a Settlement out of the small Remainder of her Portion, the Fund will be ordered to be paid into Court, and he will be prevented from receiving the Interest of such residue, unless he is starving . And the Court will prevent a Husband tak- ing the interest of money in Court, the Property of the Wife, upon the Wife's Affidavit of ill treatment; and will order it to be paid into Court d , and in case of Desertion will order her a Provision 6 ; and where the Husband goes Abroad, and has assigned part of the Dividends of Stock belonging to his Wife, without making any Provision for her, the remaining Dividends will be ordered to be paid to her f , or till he thinks proper to return and maintain her g . But the Court will not interfere if the Wife refuses to live with her Husband h ; and where there had been a Divorce for adultery by the Wife, the Chancellor refused to order Money set- tled to her separate use, to be paid either to the Wife or the Husband'; and in such case, Trus- k See 2 Ves. 5G2. Oxenden v. Oxenden, 2 Vern. c Bond v. Simmons, 3 Atk. 494. 21. « Wright v. Morley, 11 Ves. d Alexander v. M'Culloek, 12. cited in Ball and Montgomery, s Watkyns v. Watkyns, 2 2 Ves. jun. 191. and alluded Atk. 97. ' to in De Mannville and De h Bullock v. Menzies, 4Ve*. Mannville, 10 Ves. 56. 798. e Allerton v. Knowel, men- ' Carr v. Eastabrooke, 4 tioned 4 Ves. 7tt9. and see Ves. 14^- 302 EQUITY JURISDICTION. tees will, if necessary, be restrained from pro- ceeding at Law to recover her separate mainte- nance k . So, if the wife dopes, the Court will not assist her in recovering Property settled to her separate Use 1 . If an annual Sum be secured for the Wife's Pin Money for her Apparel and Expences, and the Husband and Wife cohabit together, and the Husband maintains her, the Arrears of Pin Money are not recoverable "' beyond the Year"; for in such case she is supposed to have been satisfied ; but if the Wife lives separate and has no allow- ance, an account of the Arrears of Pin Money will be decreed . If a Feme Covert has Pin Money secured by a Term, and runs away and lives in adultery, and the Trustees proceed at Law, to recover the Term, it seems they may be restrained ; but if she left her Husband on account of ill usage, or other reasonable grounds, or the Husband ac- quiesced in her departure, Equity will not in- terpose 1 *. To resume the consideration of Trusts raised by Settlements, we may next consider, the creation of Trustees to support contingent Remainders. These Trusts arose out of the doctrine in Child- leigh's Case q , and in Archers Case r , but they k Moore v. Moore, 1 Atk. "See 2 Ves. 190. 270. ° Aston v. Aston, 1 Ves. 1 Lee v. Lee, 1 Dick. 321. 2C7. and 2 Dick. 800. Mildraay v. p Sir R. More and Earl of Mildtnay, 1 Vein. 53. Scarborough, 2 Eq. Abr, 150, 10 Thomas v. Bennet, 2 P. " 1 Co. 120. Wins. 341. and see Fowler v. r ICo. 00. Fowler, 3 P. Wras. 353. TRUSTS. not put in practice till the time of tin Usurpation % when Sir Francis Moore first made use of them. Dimcombc and l)uncombc\ ap- pears to have been the first case, in which such a limitation to Trustees came in question 11 . Where an .Estate v is limited to A. for life, remainder to his first, &e. Sons in tail, though it be a plain wrong and tort in him to do an\ which will destroy those contingent remainder*, (" a most barbarous thing," Lord Talbot calls it",) before the birth of a Son, notwithstanding his legal power of doing so, yet as in this case there is no Trustee, there can be no trust, nor conse- quently any breach of trust, and therefore a Court of Equity may have no cognizance of such a case, nor handle for relief, the matter being left purely to the Common Law. Whether a Tenant for Liie, of an Equitable Estate, can destroy Contingent Remainders, has been doubted y . To prevent this inconvenience, the appoint- ment of Trustees was invented, on purpose to disable the Tenant for*Life from doing such in- jury to his issue. If, therefore, before the birth of a Son, a mere Trustee to preserve contingent Remainders, (it would be different if he were Tenant for Life, as well as Trustee x ,) whether appointed under a s Garth v. Cotton, 1 Yes. overrule what is said in Duke 555. of Norfolk's case, Polexf. 250, 1 3 Lev. 437. " For. 239. u Garth v. Cotton, 1 Ves. "CNbreyv. Bury, 1 Ball and 555. 15, a ■■■ 58. v Mansell and Mansell, *2 P. ' Hopkins v. Hopkins, Mich. Wms. 681. S. I P ye v. 892. 1733. M*. S. C. 1 Atk. George* Salk. 080. Garth and &8Q, Cotton, 3 Atk. 754. These case* 394 EQUITY JURISDICTION. voluntary Settlement, or for a valuable considera- tion, or by Will*, joins in barring such Remainders, it is a breach trust, and he is answerable to a Son afterward coming into existence ; and so is a Purchaser with notice % or a Person taking by voluntary Conveyance a ; but, 5t seems, that only the first Son, and not second and other Sons, have this shield thrown over their Interest b , though a difference has been made, where the limitation is by Settlement, and whereby Will; as in the latter case, all Persons are Volunteers*. Where Trustees to preserve Contingent Re- mainders are called upon to join for the purpose ofa new Settlement, upon the Marriage of the eldest Son, making the Tenant in Tail Tenant for Life, and continuing instead of destroying, the object of the Settlement ; in such cases, it has been said, the Court will compel them to join d : and also in some cases, though not for that pur- pose, but under some particular distress, or other special circumstances 6 ; but, generally, in all other cases, and where instead of the ordinary limita- tion to a Tenant for Life, it is to the Husband for a term of years, if he shall so long live, with re- mainder to Trustees during his life, to preserve ' Mansel v. Mansel, 2 P. 304. but see ib. 305, and Wms. 078. S. C. MS. Symance Topping and Piggot, 1 Eq. v. Tattam, 1 Atk. 014. Ca. Abr. 385. 1 Mansell and Mansell, For. c See Barnard and Large, 253. S. C. MS. Moody v. Wal- 1 Bro. C. C. 535. ters, 10 Ves. 303,307. Pye d As in Winnington v. Foley, v. Gorge, IP.Wms. 128. Biscoe 1 P. Wms. 530; and see Sy- v. Perkins, 1 Ves. and Bea. mance v. Tattam, 1 Atk. 013. 491. Sed Vid. Biscoe v. Perkins, »lb. 129. Mansell and Man- L Ves. and Bea. 492. sell, 2 P. Wms. 080. and MS. « See Barnard and Large, ^Walter and Moody, 10 Ves. Ambl. 77. TRUSTS. 3<)5 Contingent Remainders, the Court will leave it to the discretion of the Trustees f . If the Trus- tees improperly usr their discretion, or refuse to exercise it upon a proper occasion, the Court, it has been said, will interfere*. And where the Court has, at the instance of an eldest Son, ordered Trustees to join in the de- struction of Contingent Remainders, it has some- times imposed conditions upon the Son, as that he should make a Provision for a Sister b . Trustees in a Voluntary Settlement have, upon the Bill of Creditors, claiming under a subsequent conveyance in trust for the payment of debts, been decreed to join in destroying the contingent Remainders'. And such Trustees, (there being no Issue) have been decreed to join in a Sale, where the Settlement was only of an Equity of Redemption, and the Wife consented to the Sale". It has been said, that Trustees ought never to join in the destruction of contingent Remainders without the direction of the Court '; but it seems, that as the Court only decrees the Trustees to do, what they ought to seems to doubt, whether it is his duty to interpose ac- tively, to prevent Waste r . Trust Terms for the raising of Portions, are also usual in Settlements. Where Portions are thus to be raised, and there is also a Covenant by the Settler to pay them, the real Estate is considered as the primary Fund, and the personal Estate of the Covenantor as tiiix* diary only a . It is the same, though the Cove- nant be to settle absolutely within six months, and it is broken, so that damages might be reco- vered, for still the party must first resort to the Land, and only in case of a deficiency, call upon the personal Estate \ If there be a Covenant to set- tle Lands, and to raise a term of years out of them for securing a Portion, but no Covenant for the payment of the Portion, and only a Bond for per. «• ° Stansfield and Habersham, q See Garth and Cotton, ib. 10 Ves. 288. r 10 Ves.992. p Gaitli and Cotton, 1 Di'k. * Ledum n- v. Charlton, 183. 3 Atk. 751. 1 Ves. 524, 15 Yes. l l J3. 540. Stansfield and Haberg- b Edwards v. Freeman, "2 P. ham, 10 Ves. 279. Wms. 438. 398 EQUITY JURISDICTION. formance of Covenants, the Portion is not in any event payable out of the personal Estate c . Parents may make a Provision for children, which shall depend upon the condition of their surviving* them d ; but to do so, the intention must be very strongly expressed ; for contrary to the ob- vious meaning of expression, it is a Rule, establish- ed by many decisions, that if Portions are direct- ed to be paid at the age of twenty-one, or on the marriage of Daughters, with survivorship, follow- ed by a Provision^ that if they attain those pe- riods in the life of the Father, the portions shall not be paid till after his death, (a clause original- ly framed to obviate the difficulty arising from the determinations that charged the reversion by permitting Interest to be carried on from the age of twenty-one, though there was an Estate for Life %) yet that clause will not prevent the vesting in the Life of the Father ; f for in these cases, the Court looks upon it as a hard thing to impute to a Father that he should mean, a child having attained twenty-one, or come to marriageable years and formed a family, and because that Child dies in his Life, the descendants should have nothing ; and feeling that not to be a probable intention in a c Edwards v. Freeman, 2 P. f Hope v. Clifden, 6 Ves. Wms. 437. and see 1 P. Wms. 499. Willis v. Willis, 3 Ves. 51. 293. Powis v. Burdett, 9 Ves. 428. d Woodcock against the King v. Hake, 9 Ves. 438. Duke of Dorset, 3 Bro. C. C. Schenck v. Legh, 9 Ves. 300. 570. Powis v. Burdett, 9 Ves. Jefferies v. Renons, quot. 9 435. Ves. 311. Emperor v. Rolf, e Willis v. Willis, 3 Bro. C. 1 Ves. 209. C. 54. and see Emperor V. Rolfe, 1 Ves, 208. TRUSTS. 399 Parent, the Court have thought themselves at liberty to manage the construction of* the Words, as they would not in the case of a Stranger, or up- on a matter of contract, without any mixture of parental feeling*. Out where, in addition to the before-mentioned Proviso, there is a further pro- viso for a limitation over in the event of no child living at the death of the Survivor of the Parents, or of the death of all, " before the fund should, so as aforesaid, be payable, &c." the gift, it seems, is contingent ''. The raising or not raising of a Portion, depends upon the particular penning of the Trust, and the intention of the Instrument *. Lord Hardwicke expressed his unwillingness to raise portions, or interests upon them, out of Reversionary Terms, and refused so to raise them upon construction or implication only k . He laid it down also as a Rule, that if a term of years, or other Estate be limited to Trustees, for raising Portions for Daughters, payable at a certain time, which have become a vested Interest, they shall not stay till the death of the Father and Mother, unless some intention appears to postpone them ; but if there does, the Court will always take notice of such intention, and postpone it accordingly ; and the latter cases, as Brome and Berkley l , and others, shew, the Court has laid hold of very small grounds. 8 Hope v. Clifden, C Ves. k Lyon v. Chandos, 3 Atk. 507. 417 ; and see Ravenhill v. "See Schenck v. Legh, 9 Ves. Dansey, 2 P. Wms. 179. 300. [ 2 P. Wms. 484. i Codrington v. Lord Foley, 6 Ves. 379, 400 EQUITY JURISDICTION, that speak the intent of the Parties, to hinder the raising of Portions in the Life of the Father and Mother" 1 . Lord Eldon, however, has observed, " The Court ought not to be eager to lay hold of circumstances. The Court, "says he,"ought to hold an equal mind, while construing the Instrument ; and 1 cannot agree with what is said in Stanley v. Stanley ,n , that very small grounds are sufficient. If they are sufficient to denote the intention, they are not small grounds ; if they are not sufficient to denote the intention, the Court does not act ac- cording to its duty, by treating them as sufficient ; thereby disappointing the true intention of the Instrument ." The first cases in which the Portion was or- dered to be raised in the Life of the Parent were Graves and Maddison, and Gerrard and Gerrard* , which were followed by, some others ; but in the case of Corbet and Maidwell q , Lord Cowper made a stand, and said he would lay hold of any words, to prevent being bound by the former decisions 1 . Lord Macclesfield followed his example, and re- fused to go " one jot farther'' than the preceding cases s . This doctrine has been followed, and Courts will lay hold of any words, from which it can be fairly inferred, that it was not the Intention to m Stanley v. Stanley, 1 Atk. r See what Lord Hardwicke 549; and see Stevens v.Dethick, says in Stevens v. Dethiek, 3 Atk. 42. 3 Atk. 41. n 1 Atk. 549. s Butler v. Duncombe, 1 P. • lb. 380. Wms. 452. Reresby and New- p 2 Vera. 458. land, 2 P. Wins. 99. * 1 Salk. 159. 2 Vern. G85. •\ TUUSTS. igj charge the Reversionary Term with raisin- Wn- tions in that manner, for it is tearing an Batate to pieces, ruining the eldestSona of far/lift M, intl encourages undutifulness and inipiovid< nt marriages" ; if, therefore, upon the context of the Settlement any tiling can l>e collected by which it may appear, that it could not be the intention of the Parties to raise them in that way, the Court is extremely eager to lay hold of it v . Where, therefore, the Portion was directed ab- solutely to be paid at the age of twenty-one Of marriage, but maintenance was directed not to commence until the Estate of the Trustees should take effect in possession, the Court, on that ac- count, refused to raise the Portion, by a Sale of the reversionary term w . Questions, however, of this sort, do not now often arise, for negative words are usually inserted in Settlements, to prevent Portions being raised in the Life-time of the. rather and Mother, without their consent"; but where there are great Folates, it is common to direct that upon the deatli of the Father, the Portions for the Daughters shall 'See Reresby v. Newland, ' Clinton v. Seymour, 4 Ves. 2 P. Wms. 93. 460; and pee Brome v. Berk- * See the arguments of Lord ley, 2P. Wms. tM. see* also Chancellor and Master of Rolls, Sandys v. Saudys, I P. Win-, in Brome v. Berkley, '2 P. 7i>7. Wins. 4S.">. etc. :iih1 Hall v. w Brome v. Berkley, 2 P. Carter, 2 Atk. 365. Stevens v. Wm6. 484. confirmed on appeal Pethick,3 Atk. 42. Reresby v. to the House of Lords, :j Bro. Newland, 2 £. Wins. 99. but P. C, 437. seethe observations in Smith * Hall v. Carter, 8 Atk. 356. against Evans, Ambl. G34. as Reresby \. Newland, 2 l\ to the prudence of these de- Wins. 99. visions. VOL. I. D D 240 EQUITY JURISDICTION. be raised in the Life-time of the Grand-father, so as not to suspend the raising of them till after two lives y . If there is nothing more than a limitation to the Parent for Life, with a term to raise Portions at the age of twenty-one, or marriage, and the In- terests are vested, the contingencies having hap- pened, at which the Portions are to be paid, the Interest is payable, and the Portions must be rais- ed by Mortgage or Sale of the reversionary Term ; the only manner in which they can be raised 2 . Where a Term is created for Daughters Por- tions, commencing after the death of the Father and Mother, upon Trust to raise the Portions, from mid after the commencement of the Term, and the Father dies, leaving a daughter, the Portion becomes vested, but is not raiseable during the Life of the Mother 1 . Interest is payable on Portions, from the time they become due b ; but so long as they remain liable to a contingency, Interest is not payable c : as where there is a power to raise Portions, and for the Husband with the consent of the Trustees, to revoke all the uses, this suspends the Portion, y Lyon v. Chandos, 3 Atk. b Rolt v. Rolt, For. 189. 418. Hall v. Carter, 4 Ves. 357. * Codrington v. Lord Foley, See Butler v. Duncombe, 1 P. 6 Ves. 364. Stanley and Stan- Wms. 453. Lyon v. Chandos, ley, 1 Atk. 549. and see San- 3 Atk. 416. but see the re- dys v. Sandys, 1 P. Wms. 707. mark on that case in 4 Ves. Hebbletwait v. Cartright, For. 463. 31. S. C. MS. under the name c Reresby v. Newland, 2 P. of Iblethwaite v. Cartwright. Wms. 101. affirmed Dom. Proc. ■ Butler and another v. Dun- 2 Bro. C. C. 487. eombe, 1 P. Wms. 448. TKLSTS. 403 and it may be revoked any time before it is raised and paid d . It has been said, there is no instance of mort- gaging a Reversion for the payment of mainte- nance given by way of Portion f ; but the Rule seems to be that, a Reversionary term raised for securing maintenance and Portions for Daughters shall, in cases of necessity, be mortgaged, to pay either, and when fallen into Possession shall pay all the arrears of maintenance incurred before it came into Possession f . When Portions are charged on Estates, to pay in equal rates and portions, it means to be paid pro rata, as to the value of the Estates g . There are two ways of raising Portions: one, by Sale or Mortgage ; the other, by perception of Profits \ If a Portion be directed to be raised by a given time, out of the Rents and Projits of an Estate, unless annual Rents and Profits are mentioned 6 , or distinctly appear as exclusively intended to satisfy the charge % the Land itself may be sold ; but if no time for payment is appointed, a Sale will not be decreed d , though the Portion be d lb. » Trafford v. Ashton, 1 P. e Pierpoint v. Lord Cheney, Wins. 415. 1 P. Wms. 493. Sed Vid. what c Small v. Wing, 3 Bro. P. is said of this case, 4 Ves. 404. C. 50;i. f Ravenhill v. Dansey, 2 P. d Sheldon v. Dormer, 2 Wms. 179. Vera. 310. Ivy v. Gilbert, ' Tate against Hilbert, 4 Prec. Ch. 583. S. C. 2 P. Bro. C. C.280. Wms. 13. Green v. Belchier, 1 Evelvn v. Evelyn, 2 P. 1 Atk. 506. Evelyn v. Evelyn, Wms. 009. 2 P. Wms. 0C9. Raveuhiff v. D D 2 401 EQUITY JURISDICTION. vested, but must be raised out of the Rents and Profits'". Nor will a Sale be decreed, if there be a power of satisfying the charge by another mode ; as if there be a power to lease or to mortgage the Premises f ; for all Trusts of Terms directing the methods of raising Money, imply a negative, (viz.) that the Money should be raised by the methods prescribed and not otherwise s . But where a Term is limited to raise Portions by Ilents and Profits, for younger children, the Heir, it seems, may insist on having the Portions raised by a Sale, though the younger children object h . Directing a gross sum to be raised by way of Portion, does not necessarily imply, that it shall be raised at once, for it may be raised out of the Rents and Profits, and so laid up till it amounts to that sum 5 . A Father will, in general, be presumed to have paid the debt he owes to a Daughter, when in his Life-time, he gives her in Marriage a greater sum than he owed her ; for it is very unnatural to suppose that he would choose to leave him- self a Debtor to her, and subject to an account. If there be a power to charge Premises, with Dansey, 2 P. Wins. 180. Oke- den v. Okeden, 1 Atk. 551. e 2 P. Wras. 071. Earl Rivers v. Earl Derby, 2 Vera. 72. f Ivy v. Gilbert, 2 P. Wms. 13. mentioned also 2 P. Wms. 072. Mills v. Banks, 3 P. Wms. 1. E Butler and Buncombe, 1 P. Wms. 448. Mills and Banks, 3 P. Wms. 7. h Warburton v. War bur ton, 2 Vern. 420. ' Okeden v. Okeden, 1 Atk. 551 ; and see Evelyn v. Evelyn, 2 P. Wms. 006. TRUSTS. 4Q5 Portions for younger children, an eldest Daughter, where there is a Son, or where the Estate by a Settlement goes all to a remaiudcr-man, is con- sidered in Equity, as & younger Child*. When a Father on the Marriage of a Daughter, gives her a Portion, and she agrees to take it in satisfaction of any demand she may afterwards have on his Estate, this will amount to a bar of any claim, she may afterwards have on the Fa- ther's Estate 1 . A Portion charged on real Estate, carries In- terest at four per Cent." 1 , from the time the Por- tion ought -to be raised and paid, although In- terest is not mentioned n ; because it may be ne- cessary that Interest should be given by way of Maintenance, for there maybe no other . But where there is a power to raise Portions for children, charged upon an Estate, that power necessarily imports, that from the time the Por- tion to be raised, is payable, or vested, it is also in the discretion of the Party, as a necessary con- sequence of it, to prescribe what rate of Interest shall be given, provided it does not exceed legal Interest *\ The Court only interferes by giving four per Cent, where no rate is specified by him, who has a right to fix the Sum' 1 . k Beale v. Beale, 1 P. Win-. u Earl Tonifret r. Lord 044. Windsor, 2 Vee. 487. 1 Morris v. Burron-hs,l Atk. ■ Boycott v. Cotton, 1 Atk. 402. Metcalfe v. Ives, 1 Atk. 555. 04. v Lewis v. Freke, 2 Ves. "Guillamy. Holland, 2 Atk. Jan. 511 ; and see Boycntt f. 343 Cotton, 1 Atk. 552. « lb. 512. 40G EQUITY JURISDICTION. In cases where Parties sleep upon their rights, and no compromise or discussion of their claims has taken place, and where the Defendant is ig- norant thereof, and there is no disability on the one side, or Fraud on the other, Interest will not be given on a Portion, or an account directed of the Rents and Profits further back, than the filing of the Bill 1 . A Limitation over of a Portion in a Settlement, in case of death before a Portion shall become payable, does not prevent the Interest from vest- ing ; and the same doctrine, it seems, extends to Portions, created by Will. A Daughter's Portion secured by a Trust Term is not extinguished, by a Devise of the Lands, to the Daughter in Tail 8 . 2. We proceed now to consider, the Trusts usually raised by Deeds on Conveyances to Purchasers. The Trust here alluded to, is the assignment of a Term to a Trustee with a view to prevent any right to Dower, attaching. on the purchased Estate e . These Terms are, as Lord Hardwicke says, " mere creatures of Equity, partly to protect real Estates, and partly to keep them in the right channel B ." All Terms of years created either by Will v , or by Deed, as by way of mortgage, or for r Barrington v. O'Brien, ler's notes to Co. Lit. 216 a. 1 Ball and Beatty, ISO. and 381. b. 5 Lawrence v. Blatchford, "Willoughby v. Willoughny, 2 Vern. 457. Ambl.28. 1 For the various modes of T As to will, see Wynch v. barring Dower, see Mr. But- Packington, 2 Eq. Abr. 507» TP.USTS. 407 securing the payment of Jointures, Portions for children, or, indeed, tor any other purpose, do not determine (without a special provision for that purpose,) by the performance of the trusts for which they are raised, but continue to exist in the Termor, for the benefit of the owner of the Inheritance. If, for instance, a Man seized in fee of Lands, grants a lease for a long term of years to Trus- tees, for payment of his debts, or for some other purpose, without providing that after his debts are paid, or purpose accomplished, the term shall cease, or attend the Inheritance, yet Courts of Equity hold that, after the debts are paid, or pur- pose accomplished, the term continues in the Lessee, and is, as its shadow, attendant on the Inheritance, whether declared by the original conveyance to attend the Inheritance or not. In these cases, the legal Interest during the continuance of the term, is in the Termor ; but the owner of the fee is, in Equity, entitled to all the benefit or advantage which can be made of the term during frts continuance ; nor is the Termor permitted to obstruct the Owner in any acts of ownership, or in making any assurance of his Estate. In these respects, therefore, the term accompanies the Inheritance. Nor can it be disan- nexed, (unless expressly and designedly severed*,) in the consideration of a Court of Equity. By a 1 Bro. P. C. 372. and cited as * Hayter v. Rod, 1 P. W'mi- authority in Hewitt against 359. Wright, 1 Bro. 90. •108 EQUITY JURISDICTION. Will, therefore, not executed according to the Sta- tute of Frauds, the Term, (unless an intention to pass the term, is clearly expressed",) is not severed from the Inheritance, nor will it pass, as the Inheritance does not pass y . It follows the descent of the Inheritance to the Heir, and on the death of the Ancestor vests in the personal Representative of the Ancestor, for the Heir's benefit 1 ; nor is ever severed in favor of an "Heir or Executor, though there are cases where it has been done, in favor of Creditors a . It follows all the alienations made of the in- heritance, or of any partial Estate or interest carved out of it by Deed, by Will, or by act of Law b . It is an excrescence of the Inheritance, and affected in the same manner as the Inheritance. It is real assets ; and is as against the Heir d , or Assignees of a Bankrupt % subject to Dower f . The principal advantage derivable from these outstanding terms, consists in the Security they afford to Purchasers. * See 9 Mod. 127. 2 Collect, 7 Ves. 507. and 10 Ves. 240. Jurid. 270. quot. Sugd. Vend. In these references will be and Pureh. 302. fonnd all the most important y Villiers v. Villiers, 2 Atk. doctrine on this subject stat- 72. S. C. Barn. 307. ed, or referred to. z 2 Vein. 139. Levit v. Need- c Attorney Gen. v. Sir G. Earn. Sandys, Hard. 489. a Cooke v. Cooke, 2 Atk. d Wray v. Williams, Prec. 67 ; and see Willoughby v. Ch. 151. Willoughby, ID. and East, c Squire v. Compton, 9 Vin. 7(50. 'Coodright v. Sales, 2 Abr. 227. pi. 00. Wife. 331. f Dudley v. Dudley, Prec. " V id. Willoughby and Wil- Ch. 241. Williams v.' Wray, loughby, 1 T. Rep. 703. 1 P. Wms. 137. Hill and Swan nock and Liflbrd, Co. Adams, 2 Atk. 209. Dormer Lit. 290 b . n. 1. s. 13. and and Fortescue, 3 Atk. 124. Maundrell and Maundrell, TRU3T3. 409 For where a Person purchases an Estate, or takes a Mortgage- B , and obtains an assignment of an outstanding term to a Trustee, he is thereby secured against all Estate, Charges, and Incum- brances, (except Crown debts '' by specialty 1 ,) upon the purchased Estate, created intermediately between the time of granting, or to speak techni- cally, the raising of the Term and time of the purchase 1 *; but a Purchaser to avail himself of the benefit of such outstanding Term, must have paid a valuable consideration ; — for his pur- chase must have been fair ; — he must have had no notice, either express or implied, — and have theirs/ and best right to call for the legal Estate of the Term l . With regard, however, to notice express or im- plied, there is, in the case of a Dowrcss, one very notable exception to the generality of the doc- trine before laid down ; for though the Purchaser of an Estate has notice that the Individual of whom he purchased was married, and conse- quently that if the Wife survived her husband, a right to Dower wouffe attach, yet if the out- standing term be assigned to a Trustee for the Purchaser, (it would be different if the * See Evans v. Bieknell, k See Willou- and Saunders, 4 Bro. C. Ci pendix of same Work, No. 15. 457. Saunders v. Dehew, 2 »Kin£ v. Smith, 1 Wi-ht. Vern. 271. 31. * lb. 410 EQUITY JURISDICTION". term instead of being assigned were suffered to remain with the Vendor's Trustee), the Vendor's Wife cannot substantiate a claim of Dower m . But this is an anomalous case, not reconcilea- ble with the ordinary principles of Equity, and the determination is vindicable only by the con- sideration, that such had long been the practice of conveyancers, and that a different decision would have shaken many titles". Another use made of these outstanding terms is, where there are two Mortgages ; for if the second Mortgagee has no notice of the first Mortgage, and can get in a satisfied term, he may protect himself . If the Vendor of an Estate, conceals from the Purchaser, the existence of an outstanding term, a fine levied by the Vendor to the Purchaser with five years non-claim, will bar the Assignee of the term, and the Trust passes inclusively in the Fine; but if a Purchaser knows of an outstanding term, and it is agreed that the term should be assigned in Trust for the Purchaser, in such case, though the Vendor levies a fine to the Purchaser, the fine will operate on the Inheritance only, and m See Wynn v. Williams, 219; and see Hill v. Adams, 5Ves. 134.andMaundrelland 2 Atk. 20S. S. C. Ambl. Maundrell, 7 Ves. 507. and 6. under title of Swannock 10 Ves. 271. S. C. MS. The v. Lyfford. decision of Lord Somers on n See Lady Radnor v. Van- which this doctrine is ground- debendy,Prec. Ch.65. Shower's ed, was affirmed in the House Pari. Cases, p. 69. of Lords, Lady Radnor v. ° Vid. Evans and Bicknell, Vandehendy, Show. P. C. 09. 6 Ves. 184. Robinson v. DavU Prec. Ch. 65. 1 Eq. C. Abr. son, 1 Bro. C. C. 63. TRUSTS. 411 not on the term v ; such being the plain intent of the Parties p . Where terms are raised by Settlements for fa- mily purposes, it is usually provided, (always in well drawn deeds,) that if the Trusts never arise, or become unnecessary, or incapable of taking effect, or are performed, that the term shall cease; and in such events the term, of course, ceases, according to the express Provision of the Deed. Another manner in which a term may cease is, by way of Merger. Thus, if a term of years, and the Inheritance meet, in one person, in the same right, the term becomes extinct q ; but it is ^other- wise, where a term of years is held in one right, and the Inheritance in another r , or where there is only an equitable Estate in the Inheritance, and a Legal Estate in the term, but the term attends the Inheritance ; and in such case, residuary Legatees have no claim under the term against the Heir s . Although terms may have ceased, it is a pru- dent rule with conveyancers, to recommend, that nearly all terms for years, however ancient they may be, and whatever adverse possession, or fines there may have been, should be required by a Purchaser to be assigned to him, or to a Trustee p Inham v- Morrice, Cro. 4 See Cooke v. Cooke, 2 Atk. Car. 109. Dighton v. Greenvil, G7. 2 Vent. 329. See also Freeman r 1 Inst. 338\ Gong and v. Barnes, 1 Vent. 80. 1 Lev. Radford, Hob. 3. 270. quot. in Sugden's " Law 5 Capel v. Girdler, 9 Ves. of Vendors and Purchasers," 509. p. 330. last edition. 412 EQUITY JURISDICTION. of the Purchaser's nomination, to attend the In- heritance '. It was once held, at Law, that a satisfied term should not bs set up in Ejectment, and it was afterwards determined that where a term is satis- fied, it may be put as a question to the Jury, whether an assignment may not be presumed"; but this doctrine has been much objected to as an innovation, and as injurious to the rights and benefits which previously accrued by means of outstanding Terms to Purchasers and Mort- gagees', and is now wholly exploded'". But the reconveyance of the Legal Estate will, even in Equity, be presumed, after great lapse of time ; 140 years, for instance x . 3. With regard to Mortgages, it is a Rule in Equity, that a Mortgagee is only considered as a Trustee y , and that a Mortgage, as in the Civil Law, is only a Security for the Money, and passes only a Chattel Interest, and does not alter the thing it conveys. Nothing real passes to the Mortgagee. It conveys nothing in the Land; neither Dower, or Tenancy by the Curtesy 1 -. The Equity of Redemption is considered as an Estate in the Land, and may be devised*, granted or * See Sugden Vend, and 12 Ves. 251. Shannon y. Purch. 330. Bradstreet, 1 Sch. and Lefr. u Vid Doe on dem. Bristowe 70. r. Pegg, 1 T. R. 758. n. Doe w Lee and WalWvyn, 9 Ves. on dem. Hodsden v. Staple, 31. 2 T. Rep. 084. Doe on dem. x 12 Ves. 239. Da Costa v. Wharton, 8 T. R. y 3 Ch. Ca. 3 Prec. Ch. 99. p. 2. 2 Sparrow v. Hardcastle, v Evans v. Bicknell, Ves. cited 2 Ves. Jun. 433. 184, 5. Hillary v. Walter, a Pettat v. Ellis, 9 Ves. 563. TRUSTS. 41.'{ entailed with Remainders, and such Entail and Remainders may be barred by a Fine and Reco- very, and a Husband may be Tenant by the Cur- tesy of the Mortgaged Premises ''. It', indeed, an Advowson be mortgaged, and is absolute in the Mortgagee, and becomes void, the Mortgagee, it seems, is entitled to present , he having the Legal Estate ; but Equity will compel him to present such person as the Mortgagor shall nominate' 1 ; but if a Manor is mortgaged with an Advowson appendant, and the Church be- comes void, the Mortgagee though in possession is not entitled to present, but the Mortgagor must present, unless foreclosed c ; or rather, per- haps, the Mortgagor must present such person as the Mortgagee shall nominated When, upon a mortgage, Money is made pay- able to the Heir or Executor, in such case, before the day, or at the day of payment, the Mortgagor has an election to pay it to which he pleases *. But after the day of payment is over, (unless there be a reinfeoffment '',) and the Mortgage is for- feited at Law, though Equity gives the Mort- u Casbournev.Scarfe, 1 Atk. c Arnhurst v. Datrfiog, 2 603. S. C. whenal the Kolls, Vern.401. MS. where Sir Joseph Jekvll ' .lory v. Cox, Prer. Chan. held there could not be a 71. Tenancy by the Curtesy of an g Anon. 2 Freem. 20. Right- Equity of Redemption ; and son v. Overton, ib. p. 20 ; :uid *ee 2 Eq. Abr. 504. as to tenan- see Canning v. Hickes, 1 Vera, cy by theCurtesy, and Roberta 412. S. C. 2 Ch. Cas. 187; and Dixwell, 1 Atk. 008. and see 1 Ch. Rep. 2S-3. 2 Ch. c Dyer v. Lord Craven, Rep. 220. 1 Dick. 062. h See RightaoD v. Overton, d Croft v. Powell, Com. Rep, 2 Ereem. 21. 609. argo. 414 EQUITY JURISDICTION. gagor relief, so as upon payment of the Money he shall have his Land, yet Equity will not revive the election of the Mortgagor to pay it to the Heir or Executor. But if in the Mortgage neither Heir nor Executor be mentioned, then after the death of the Mortgagee the Law determines it to be paid to the Executor 1 . It has been held that, if there be a Mortgage in Fee, and two descents cast, and more due upon it than the value, and the Mortgagor refuses to redeem, yet it shall go to the Executor and not to the Heir, the Equity of Redemption not being foreclosed, or released k . The principal occasions on which the attention of Courts of Equity is called towards Mortgages, is upon Bills filed, 1. to redeem; and 2. to fore- close, a Mortgage; and in respect of what are term- ed, 3. Equitable Mortgages. 1. The right to redeem a Mortgage is carefully protected by Courts of Equity, and they will not suffer any Agreement in a Mortgage Deed to pre- vail, that the Estate shall become an absolute pur- chase in the Mortgagee upon any event what- ever 1 ; and the reason is, because it puts the borrower too much in'the power of the lender, who, being distressed at the time, is too inclina- ble to submit to any terms proposed on the part of the Lender m . The Rule is, " once a Mortgage and always a Mortgage* .'' 1 Anon. 2 Freem. p. 12. Treatise of Eq. 2 Vol. 259. lii^htson v. Overton, lb. p. 20. James v. Oades, 2 Vern. 402. k Tabor v. Grover, 2 Vern. m Tooines v. Conset, 3 Atk. 367. S. C. 2 Freem. 227. 261. 1 See Howard v. Harris, 1 " Newcombe v. Bonham, Vern. 190. S. C. 2 Ch. Ca. 147. 1 Vern. 8. Howard v. Harris, TRUSTS. 413 No Agreement of the Parties can affect the doctrine as to Redemption in a Court of Equity °. 11 You shall not," (says Lord Eldon, " by special terms alter, what this Court says are the special terms of that contract p ." But though any fetters laid upon redeeming a Mortgaged Estate, by some original Agreement, either in the Mortgage Deed, or a separate Deed will not avail, where it is done with a design to wrest the Estate fraudulently out of the hands of the Mortgagor, yet if on Money advanced, an Estate be leased for .5000 years at a certain Rent for the three first years of the Term, and at another Rent for the Remainder of the term, with a proviso, that if at three years end, the Money advanced and Interest is paid, then the Premises shall be reconveyed, this is a good conveyance, and if the Money is not paid according to the Proviso, the Interest granted, will, it has been held, be irredeemably vested in the Party •». What is called a Welch Mortgage, is a perpetual power of Redemption, subsisting for ever, and where the Mortgagee cannot compel a redemption or a foreclosure 1 ; but there are circumstances which may create a bar even in Mortgages of this description 5 . 1 Vern. 33. James v. Oatles, » >eton v. Slade, 7 Ves. 273. 2 Vern. 402. * Mellor v. Lees, 2 A tk. 494. ° See Floyer v. Lavington, ' I.inguet against Seawen, 1 P. Wins. 268. and the cases 1 Ves. 406. cited in that case. Newcombe * Yates v. JIambly, 2 Atk. v. Bonham, 1 Vern. 7. S. C. 303. 2 Ventr. 304. 2 Ch. Ca. 58, 159. 416 EQUITY JURISDICTION. All Welch Mortgages, it is observable, are with- out a Covenant to repay the Mortgage Money 4 . An Equity of Redemption is considered as a Title in Equity, and not merely as a Trust, from which in many respects it materially differs u . Sir Matthew Hale says, " a Power of redemption is an equitable right inherent in the Land, and binds all persons in the post or otherwise ; because it is an ancient right which the Party is entitled to in Equity \" W here a Mortgagee has been in possession twenty years, without any impediment in the Mortgagor to assert his title, such as Imprisonment, Infancy, Coverture, being beyond Sea, &c. (where it is not by having absconded ;) or if such impediment has been removed ten years, it is a bar to a Redemp- tion w . And in such case, it seems, a Demurrer will lie to a Bill for an account x . And though Infancy may be an Answer to the objection as to length of time in not coming to redeem, yet where the time begins upon the Ancestor, it will run on against his Infant Heir, as in the case of a fine at Common Law y . 1 Lawley v. Hooper, 3 Atk. 1 P. Wms. 208. Anon. 3 Atk. 280. 313. Corbett v.Barker, 1 Anstr. u Tucker v. Thurstan, 17 38; and see 2 Anstr. 759. Ves. 133. Hodle v. Healey, 1 Ves. and v Pawlet v. Attorney Gen. Bea, 539. contra Leman v. Hard. 465. Newman, 1 Ves. 51. Exton w Tenner v. Tracey, men- v. Greaves, 1 Vern. 138. tioned in note B. to 3 P. Wms. x Esdell against Buchanan, 287 ; and see Bonney v. Rid- 4 Bro. C. C. 254. S. C. 2 Ves. gard, mentioned from a MS. Jun. 84. Jenner v. Tracey, note in 17 Ves. 99. S. C. but mentioned i n note to 3 P. Wms. not to this point, 4 Bro. C. C. 287. 125. Trash v. White, 3 Bro. y St. John v. Turner, 2 Vern. C. C. 289. Floyer v. Lasington, 419. TRUSTS. 417 The Rule, it has been said, is not founded on a presumption of an absolute conveyance, but is merely a positive rule introduced lor the sake of quieting the Title after so long a neglect to redeem, analogous to the Statutes of 1 /imitations at Law'. If, however, then- have been acknow- ledgments that the Estate was held in Mortg and accounts have been kept, it seems, that a pos- session even of fifty years V--a Mortgag< , everso old b , will not bar a Redemption. And it a Man takes notice by a Will, or anv other deliberate act c , an answer, for instance, to a Bill in Chan- cery* 1 , that he is a Mortgagee, acknowledgments of that nature will take the case out of the Rule that a Mortgagor shall not redeem after twenty years ; but the mere demand of an account, is not alone sufficient to prevent the effect of such a length of time 6 . If a Mortgagor agrees that the Mortgagee shall enter and hold till he is satisfied, length of time is no objection to a redemption '. And where it so happens that the person to pay the Interest on the Mortgage, is the same person who is to re- ceive it, as if Tenant for Life has conveyed Ins Life Estate to the Mortgagee, there, the presump- 1 Corbet v. Barker, 1 Anstr. 2 Atk. 333. Yates v. Hambly, 138; and see 2 Anstr. 759. 2 Atk. 263. Belch v. Harvev, M. S. c Perry against Marston, ■ See Lake v." Thorns, 3 Ves. 3 Bro. C.C. 809. Anon. 3 Atk. 17 ; and see what is said in 314. Esdell v. Buchanan, 2 \ Vs. rt Proctor v. (Jutes, 2 Atk. Jun. 84. S. C. 4 Bro. C. C. 140 25(>. and Proctor v. Cow per, e [Jodie v. Healev, 1 Ves. 2Vern. 377. S.C.Prec, Ch. and Bea.540. 116. ' Orde v. Hearing, 1 Vera. b 1 P. Wms. 271. Anon. 418. VOL. I . L E 418 EQUITY JURISDICTION, lion does not arise, and though twenty years elapse, the Mortgage is redeemable z . The right of Redemption is not confined to the Mortgagor, his Heirs, Executors, Assignees or subsequent Incumbrancers, but extends to all per- sons claiming any Interest whatever in the Pre- mises, as against the Mortgagor : a person, there- fore, claiming under a void Deed (as being volun- tary) against a subsequent Mortgagee, may re- deem ; for the Deed though void as to the Mort- gagee, is binding on the Mortgagor; a fortiori, may any person redeem who has acquired for a valuable consideration, an Interest in the Land ; as a Tenant under the Mortgagor, or a Tenant by Elegit, Statute Merchant, or Staple, or Tenant by the Curtesy, or in Dower, or a Jointress ; and the Crown may also redeem Estates mortgaged, and afterwards forfeited by the treason, or otherwise, of the Mortgagor a . If a Mortgage by the attainder of the Mortga- gee is in the hands of the Crown, a Bill lies against the Attorney General to redeem b . An Equity of Redemption cannot be affected by an Execution ; but a Judgment Creditor may file a Bill to redeem an Incumbrance 4 , provided he has taken out Execution 6 . 9. With respect to the Foreclosure of a Mort- gage, it has been determined, that a Mortgagee z Corbet v. Barker, 3 Anstr. c Lyster v. Dolluwd, 3 Bro. 755, C. C. 478. a See 1 Fonb. Trea. Eq. d Burdon v. Kennedy, 267. n. p. and the Authorities 3 Atk. 739. King v. Manissal, there cited. 3 Atk. 192. Sharpe v. Earl of " Pawletv. Attorney Genl. Scarborough, 4 Ves. 542. Hard. 465. e Shirley v. Watts, 3 Atk. 200. T HURTS. 419 may file a Bill ofForeclosure, without taking pos- session. A Mortgagee cannot be compelled to take possession; for, by so doing, he would sub- ject himself to an account, which the Court will not force him to do °. Alter the death of the Mortgagor, in case the personal Estate of the Mortgagor is deficient, a Mortgagee may pray a Sale of the mortgaged Premises, in the first instance, where the Heir and personal Representative are the same Per- son '. Where an Adcoicsoji is mortgaged, instead of bringing a Bill of Foreclosure, the Mortgagee should pray a Sale of the Advowson*. A Pawnee of stock is not bound to bring a Bill of Foreclosure of the Equity of Redemption of the Stock, but may sell it' 1 . And it has been held that Excheejucr Annuities ', or East India Stock k mortgaged, maybe sold upon notice, with- out a Bill of a Foreclosure, which, it seems, would be dismissed 1 . But a Mortgagor of Stock, may file a Bill for an account of what is due, and to have a transfer™. A Mortgagee of a copyhold Estate, who is not e lord Penrhyn v. Hughes, ' Tucker v. "Wilson, 1 P. 5Ves. 106. Wma. 261. oa Appeal, 1 Bro. Daniel against Ship with, P. C. 494. 2 Bro. ('. ('. 155. k Lockwoocl v. Ewer, 2 Atk. g Mackenzie v. Robinson, 303. 3 Atk. 559. II.. " Kempe v. Westbrooke, 1 ■ 1 Yes. 278. Ves. 278. EE2 420 EQUITY JURISDICTION. in possession, may bring his bill against a More-. $agor, before admittance, for a decree of Foreclo- sure, and after he has obtained such a decree, may bring his Ejectment for possession of the mortgaged Premises". Where a Bill is brought to foreclose a Mortgage of an Estate Tail, the Court does not compel the Tenant in tail specifically to suffer a Recovery, but decrees him to make a good title to the Mort- gagor . The Covenant of a Tenant in tail Mort- gagor, for further assurance, may be laid hold of as a ground to enforce a Recovery p . Where a Trustee had laid out the Money of different Persons on a Mortgage, a Foreclosure was permitted by one Cestui que Trust, as to his Share q . And where a Mortgagee had assigned the mortgaged Property to a Person in Trust, for three others who advanced a third each of the ."Money, one of the three was permitted to file a Bill to foreclose, but the other two were considered as necessary Parties, they all being Joint-tenants'. If a Bill filed bya Mortgagor, for a Redemption, is dismissed, the Money not being paid at the Time 5 , that operates as a Foreclosure, and is equivalent to a decree for a Foreclosure*. n Sutton v. Stone, 2 Atk. 101. • Sutton v. Stone, 2 Atk. 101. p Tourle v. Rand, 2 Bio. C. 1 Lowe v. Morgan^ 3 Ves. 3C8. ' Stewart against Worral, 1 Bro. C. C. 581. Bishop of Winchester v. C. 650. Pye and Duubuz, 3 Payne, 11 Ves. 199. Garth y, Bro. C. C. 595. Ward, 2 Atk. 174 q Montgomerie v. The Mar- quis of Bath, 3 Ves. 5G0, Tin 421 If} after a Foreclosure and a Sale, the IVlortg.: brings an Action tor the Balance, this in gene- ral opens the Foreclosure"; but where the Mort- gagee had taken Possession a considerable time* and the Balance was inconsiderable, a perpetual Injunction was decreed ' . An Executor of a Mo will be restrained from enforcing Payment, and the Money will be ordered into Court, where there is no Heir oi' the Mortgagee who can reconvey w . In those cases where a Mortgage is sought to be redeemed, the doctrine as to what is termed tacking, frequently comes under consideration. Tacking is prevented in Ireland by the effect of the Register Act in that Country x> , but in England it is a rule (and it has great appearance of hardship, though fully established y ), that if a third Mortgagee buys in the first Mortgage, he acquires a title in Law, and having equal equity, shall, in the language of the Cases, squeeze out the second Mortgagee^ provided the third Mortgagee, when he lent his Money, had no no- tice of the second Mortgage 7 . And the rule is u Daslwood v. Blythwayj » 2 Ves. 573. feq. Casi Abr. 317i ' Anon. freem. 2 Vol. G. ami v Perry v. Barker* 8 Ves. the S. P. p. 14. The rule was 527. and S. C. 13 Ves. IDS. also solemnly laid down S. C. IMS. in Marsh v. Lee, 2 Yen*. w Schdole and WiTe v. Sail, 337. S. C. 1 Ch. Ca. 172. 1 Seh. and LetV. 177. wheiein that great man Sir * G Anne, e. 2. vid. Latouch Matthew Hale (then Chief v. Lord Dunsany, 1 S«h. and Baron, ) was called by the Chan- Lefr. 157. Bond and Hopkins, cellor to his assistance. See 1 Scli. and Lefr, 430. also Edmonds v. Povey, 1 4-2-2 LQU1TY JURISDICTION. the same, even though the third Mortgagee buys in the first Mortgage, pending a Bill brought by the second Mortgagee to redeem the first 3 , unless the Suit has proceeded so far as to a Decree, and a direction to settle Priorities b . But a prior Mortgagee who has an assignment of a third Mortgage as a Trustee only c , or who has a Mortgage of the Equity of Redemption coming to him as Executor' 1 , cannot tack the two Mort- gages, to the prejudice of intervening incum- brances. If a Judgment Creditor, or Creditor by Statute or Recognizance, buys in the first Mortgage, he can- not tack or unite this to his Judgment, &c. and thereby gain a preference ; for he did not advance his Money on the Credit of the Land'; but if a third Mortgagee buys in a Statute, (and holds both in the same right 1 ,) he is allowed to unite the Statute to his third Mortgage, for the Land was in the view and contemplation of the Len- der g ; and the Judgment Creditor, by virtue of an Elegit might bring an Ejectment, and hold upon the extended value, and as he has the legal in- Vern. 1S7. Morret v. Pask, 2 2 Vern. 524. Exparte Knott, Atk. 52. Brace v. Duchess of 11 Ves. 019. Marlborough, 2 P. Wms.491, c Monet v. Paske, 2 Atk. 495. Pre. Ch. 249. Bacon's 53. Tracts 55. d Barnet v. Weston, 12 Ves. a Hawkins v. Taylor, 2 A T ern. 130. 29. Turner v. Richmond, 2 e 2 P. Wins. 491,493. Vera. 81. 2 P. Wins. 491. f Morret v. Paske, 2 Atk. b Win tley v. Birkhead,2Ves. 53. Stanton v. Sadler, 2 Vern. 571. S. C. 3 Atk. 811. and see 30. Earl of Bristol v. Hungerford, g Higgon v. Svddal, 1 Ch. Ca. 149. 2 P. Wins. 493,4. TRUSTS. 423 terest in the Estate, the Court will not take it from him h . If a first Mortgagee lends a further Sum to the Mortgagor ', upon a Statute or Judgment, he may retain, not only against the Mortgagor, but against a mesne Mortgagee (provided he had no notiee of such mesne Mortgage) till both the MorL and Statute, or Judgment, be paid k . Where there are subsequent Incumbrances or Creditors in the Case, there, a Man, that buys in a prior Incumbrance, shall be allowed only* what he really paid, though there was in truth agreater Sum due upon such prior Incumbrance ; but where the Mortgagor or his Heir comes to re- deem, there is no reason that he should have the benefit of a good Bargain made by another Man, and must therefore pay what is really due on the Mortgage, whatever it be, without respect to what the Assignee paid '. Where a first Incumbrancer by Judgment, has likewise a Mortgage, though there is another Judgment prior to the Mortgage, yet if the Mort- gagee had no Notice of it, the Court will not direct a Sale of the Estate in favor of the Credi- tor, upon the second Judgment, unless he will h Monet v. Paske, 2 Atk. Shepherd v. Tilley, 2 Atk. 53. 348. Baker v. Harris, 16 Ves. 1 Matthews v. Cartwright, 3V9. 2 Atk. 347. ' Williams v. Springfield, k 2 P. Wms, 494. and see 1 Vern. 4?»>. and see Darcey Shepherd v. Tilley, 2 Atk. v. Hall, 1 Vern. 49. Phillips 352. Mr. Freeman puts a v. Vanghan, 1 Vern. 330. As- similar Case, 2 litem, p. 7. cough v. Johnson, 2 Vern, 66, 424 EQUITY JURISDICTION. pay off the Principal and Interest of the first Judg- ment and Mortgage m . A Mortgagee is not permitted to tack as against Assignees in Bankruptcy, a Mortgage subsequent to an act of Bankruptcy, though without notice, and previous to the Commission", for by such Mortgage no interest passes". An Heir, or the Devisee of mortgaged Premises p , cannot redeem a Mortgage without paying a Bond% though there is no Judgment ; and this, to prevent a circuity of Action ; but that Equity does not prevail against a Purchaser, an Assignee of the Equity of Redemption for instance 1 , the bond Creditor having no lien upon the Land 3 ; no can he tack where there are intervening In- cumbrancers of a superior nature between his- Mortsfaoe and the Bond 1 ; nor can a Bond be tacked to a Mortgage as against Creditors, though it may, against the Heir". If an Estate be de- vised for payment of Debts, a Mortgagee can- not tack a Bond to his Mortgage, as against the Creditors v . 111 SirH. Smithson v. Thomp- son, 1 Atk. 520. n Archer v. Snatt, 2 Str. 1107. ° Ex parte Knott, 11 Ves. CSG. p 3 Atk. G30. and see Ambl. 680. q Coleman v. Winch, 1 P. Wens. 775. Anon. 2 Ves. G02. Shuttleworth v. Laycock, 1 Vern. 245. r Coleman v. Winch, 1 P. Wins. 775. Troughton v. Troughton, 3 Atk. 057. S, C. I Ves. 80. s Ex parte; Herbert, 13 Ves, 183. overruling Collet v. De (iolls, For. 05. see also I Sehoales and Le Froy 152. ' Powis v. Corbet, 3 Atk. 556. " Hamerton v. Rogers, 1 Ves. jun.513. Lowthian against IIassel,3 Uro. C. C. 102. and see Vanderzee against. Willis, 3Bro. C. C. 23. and Coleman v. Winch,! P. Wins. 77G. Y Heames -v. Banco, 3 Atk, 030. Price against Fastnedge, Ambl. 080. TRUSTS. 4-25 If an Executor brings a Bill to redeem a Mortgage of a term for Years, he must pay a bond l)« l)t also due; but if the Equity of Redemption be assigned by the Executor, the Assigned may redeem, without paying the Bond." If the Heir of a Mortgagor of Copyhold Pre- mises, files a Bill to redeem, the Defendant cannot insist upon tacking 'a Judgment, becatfse the Copyhold Lands are not liable to an Execution upon a Judgment *. It has been holden that, where A. had two Mortgages, on different independent Estates of the Mortgagor, one, a deficient Security, and the other, more than sufficient, the Mortgagor can- not redeem the last, without making good the deficiency of the other Security*'. Nor. where there are two separate Mortgages of different. Estates to the same Person, can a Purchaser of the Equity of Redemption of one of them, re- deem that Mortgage only : if he redeems at all, he must redeem both 2 . In respect of the manner in which the Account is to be taken as between the Mortgagor and Mortgagee, it appears to be a Rule, that wherever the gross Sum received, exceeds the Interest, it shall be applied to sink the Principal 11 . And w Coleman v. Winch, 1 P. what is said Arg. 1 Vein. 20. Wms. 77(i. Seel vid. observation on Pope x Heir of Carron and Park, v. Onslow by Lord Efardwicke, Via. Abr. Tit. Copyhold, (O.E.) in ex parte King, 1 Atk. 300. Ca. (>. * Ex parte Carter, Ainbl. v Shuttleworth v. Laycock, 733. 1 Vern. 245. Margrave v. Le a Gould v. Tancred, 2 Atk. Hooke, 2 Vern. 207. Pope v. 534. Onslow, 2 Vern. 286, and 4-26 EQUITY JURISDICTION. where a Mortgagee enters into possession of the Estate, and does by his own act render himself accountable for what he receives, in discharge of his Principal, and Interest, Annual Rests will be directed 1 *. It has been held, however, that if a Mortgagee enters, by Agreement, into possession of the Mortgaged Lands, at a fair Rent, in discharge of the Debt, this forms an exception to the general Rule, and he will not be compelled to account for the full value of the Lands . If the Mortgagor is permitted to remain in pos- session, he is not liable to account for the Rents and Profits to the Mortgagee' 1 , not even if the Security becomes insufficient 6 . A Mortgagee in possession is not obliged to lay out Money any further than to keep the Estate in necessary repair f ; nor is he bound to leave the Premises in as good condition as he found them g . And if a Mortgagee has expended Money in sup- porting the right of the Mortgagor to the Estate, where his Title has been impeached, the Mort- gagee may add this to the principal of his debt; and it shall carry Interest h , at the same rate as the Mortgage debt'. b Robinson v. dimming, v. Duke of St. Albans, 3 Ves. 2 Atk. 410. 25. c Moroney v. ODea, 1 Ball f Godfrey v. Watson, 3 Atk. and Smith, 117; Sed vid. 518. Webb and Rorke, 2 Sell, and g Russell v. Smithies, I Lefr. 661. Anstr. 96. d Mead v. Lord Orrery, h 3 Atk. 518. 3 Atk. 244. [ Woolley v. Drag, 2 Anstr, ' Higgins v. York Buildings 531. Company, 2 Atk. 107. Colmaa TRUSTS. 427 If a Mortgagee of a Leasehold Interest, pays renewal Fines, he is entitled to be reimbursed out of the Estate k . If a Mortgagee in Possession is guilty of gross mismanagement of the Mortgaged Estate, he is answerable for it; but he is liable only for wilful default : if he speculates, it is at his own hazard 1 . If he turns out, or refuses, a sufficient Tenant, he will be accountable"'. A Mortgagee is not allowed to make a charge as Receiver, if he himself has personally received the Rents "; and this, though it be agreed he should be paid for his trouble in receiving the Rents"; and though a Receiver might have been employed at the expence of the Mortgagor 1 ': but if he actually paid a Bailiff for receiving the Rents, he will be allowed such payment* 1 . Interest upon Interest is not allowed in the case of a Mortgage 1 . To make Interest on a Mortgage, principal, it is requisite there should be a writing signed by the Putties, the Estate in the Land being to be charged 8 . And when by a decree on a Bill of Foreclosure, a reference is made to a Master, to see what is due, k Hamilton v. Denny, 1 Ball subject Could v. Tancred, and Beatty, 202. Manlove v. 2 Atk. 534. Bale and Bruton,2 Vein. 84. " Godfrey v. Watson, 3 Atk. 1 Hughes v. Williams, 12 Ves. 518. Bonithon v. Hockmore, 49; J. 1 Veru. 310. m Anon. 1 Vern. 45. r Ex parte Campion, 3 Bro. B Godfrey v. Watson, 3 Atk. C. C. 140. see on this subject 51S. Bonithon v. Hockuiore, 2 Atk. 534. Thornhill v. Evans, 1 Vein. 310. 2 Atk. 331. ° French v. Baron, 2 Atk. * Browne v. Barkham, 1 P. 120. Wins. 053. See decree in Thorn* p Langstaffe v. Fenwick, bill V, Evans, 2 Atk. 332." n. 1. 10 Ves. 405 j and see oft this 4CS EQUITY JURISDICTION. and the Master reports what is due for Principal; Interest and Costs, Interest will, by a subsequent order, be allowed upon the whole amount of what is due, except, perhaps, in the case of an Infant 1 . If money be lent in Town on Mortgage, the Mortgagor may give notice for payment of the same in Town, though the Mortgagee live in Ox- ford; but the Mortgagor must be ready to pay at the time, and from that time keep his^Money ready, to prevent Interest running on u . Where a Mortgage carries five per Cent. In- terest, and the Mortgagee together with Bond Creditors file a Bill for a Sale of the Estate, only four per Cent. Interest will be allowed from the confirmation of the Report v . A prior Incumbrancer cannot turn interest into principal against a subsequent Incumbrancer having notice w . An Account settled before a Master between a Mortgagor and the first Mortgagee, binds the second Mortgagee, unless fraud and collusion is^ shewn x . 3. In respect to Equitable Mortgages, it has long been settled, notwithstanding the Statute of Frauds, (29 Car. 2. c. :j. s. 4.) that a mere deposit of Title. Deeds, upon an advance of Money, with-* out a word passing, gives an Equitable lien y , even 1 See Bennett v. Edwards, w Digby against Craggs, 2 Vein. 292. Ambl. 612, u Gyles v. Hall, 2 P. Wms. * Needier v. Deeble, 1 Ch, 378 ; and see Bishop v. Church, Ca. 299. S. C. 1 Eq. Cas. Abr. 2 Ves. 372. p. 12. * Harris v. Harris, 3 Atk- y See Ex parte Lan°;ston, 722. 17 Ves. 227 ; and see Russell v. Russell, 1 Bio. C. C. 2C9. TRUSTS. 42 J egainst a subsequent Purchaser without notice ■; and sucl) deposit will cover subsequent advances, ifl t appear by Evidence, that they were made upon the faith of that Security". Jiut it has never yet been derided, how far it is tli I i \r\ V > deliver all the title deeds : or whether that would not be taken* to be a sufficient deposit, which could be taken upon looking at the Instruments to amount to evidence, that the Estate was meant to be a security b ; but it has been held, that the delivery of deeds, for the purpose of having a Mortgage dra\vn„will not amount to a deposit or Equitable Mortgage c . The meaning and object of a deposit may, it seems, be explained by parol Evidence ; a cir- cumstance which has often been lamented 1 . Indeed, equitable Mortgages by the deposit of Deeds, &c. are not favoured, especially when con- tradicting a written Instrument e . It seems, though no case has so determined it, that if the deposit is in the hands of a third per- son, that may be considered as a deposit for the Creditor, provided that is proved to be the In- tention. It is very delicate when the Deposit remains in the hands of the Mortgagor himself, the first case establishing these b Ex parte Wetherell, 11 Equitable Mortgages, and a Ves. 401. decision frequently lamented. l Norris v. Wilkinson, 12 • Hiem \r. Mill, 13 Ves. 114. Ves. i but see Birch v. Elkunes, ' Ex parte IJai^h, 9 Ves. 2 Anstr. 431. Plumb v. Piuit, 403 : and Bee particularly Nor- 2Anst. 432. lis v. Wilkinson, 12 Ves. 199. * But see Vanderzee against ' Ex parte Combe, Ij Ves. Willis,3Bro. C. C t 23. 300, 430 EQUITY JURISDICTION." and it seems questionable, whether a mere me- morandum, kept in his own possession, and not parted with to the Man in whose favour it is ex- pressed, or if Deeds were put into the hands of the Wife of the Mortgagor f , it would take the case out of the Statute. In the case of an Equitable Mortgage, by the deposit of a Mortgage Deed, if no notice is given to the Mortgagor, and he makes payments to the original Mortgagee, the Assignee takes, subject to the account between the Mortgagor and Mort- gagee. An Equitable Mortgage will be made good as against Assignees s . In a case, where an Assignee bought the Bank- rupt's Estate, and out of the consideration Money paid an Equitable Mortgagee, and took the deeds, which Sale was afterwards set aside, on the known principles of the Court 11 , it was held that the Equitable Mortgagee did not lose his lien '. Where a Lease was deposited to secure a debt, the depositary was, on a Bill filed by the Lessor, decreed to perform the Covenants, and, take an Assignment paying the costs of it : and it was held, he could not abandon it; for being entitled to a legal Conveyance, he is considered as having it k . f Vid. Ex parte Coming, h See ante, p. 91. 9 Ves, 117. i Ex parte Morgan, 12 Ves. B Jones v. Gibbon*, 9 Ves. 0. 411. Pye v. Daubuz, 2 Dick. k Lneas v. Commerford, 759. 1 Ves. .Tun. 235. S. C. 3 Bro. C. C. IOC. trusts. 431 An Assignment of Rent* and Profit s, or of Dec;! . gives an equitable lien; and entitles the 1 to i;;Mst upon ;i Mortgage 1 . Trusts, created by Deed, for the jxu/mcnl of ' v, or of compositions for debts, arc frequent, and Courts <-!' Equity will assist in the enforce- ment of Agreements for a composition, if obtained without fraud, or misrepresentation "'. Underhand Agreements, upon those occasions, have already been observed upon, under the head of Fraud". When a .Man conveys Land for the payment of his debts, and keeps possession of the convey- ance, it. is considered as fraudulent . An Assignment of all a Trader's Propertv, though for the benefit of all his creditors, amounts to an Act of Bankruptcy ', the reason being, that a Trader has not a right by deed, to place his Pro- per' under a distribution, different from that ore. ained by the Bankrupt Law 1 '. And though there be a provision in the Assignment of the whole, or nearly the whole ofa Trader's Estate and Effects, that the Deed is to be void, if a com- mission of Bankruptcy shall be taken out, or if all the Creditors whose Debts amount to s£20, do not sign within a given time, yet still such an Assignment, notwithstanding such condition, amounts to an Act of Bankruptcy f) . 1 Ex parte Willis, 1 Ves.Jun. p Ex parte Pournr, 10 V, - 102. 14S. Cook's Bankrupt Law, '" Pollen v. Husband, 1 P. edit. 5. p, 89; and set- Dut- Wins. 1-27. Cannv. Cann, 1 P. ton v. Morrison, 17 Ves. l!>7. Wms. 7-27. '•Dutton v. Morrison, 17 Ves. n Ante, p. -2-20. 197, 8. • ° Tarbuck v. Marbuiy, 2 Vern. 510. 432 EQUITY JURISDICTION. It was the repeated doctrine of Lord Mansfield? , that every act done with a view to defeat the Bankrupt Laws, by giving a preference to Credi- tors, is fraudulent and void, and if by deed is an Act of Bankruptcy ; but a Trader, it seems, may shew a preference to particular Creditors, provid- ed it is not done under the apprehension of bank- ruptcy, and the property so conveyed, does not exhaust the whole Estate, or what remains is not colourably left 5 . The Surrender of a Copyhold Estate in favor of a particular Creditor^ is not an Act of Bank- ruptcy under the 1 Jac. 1. c. 15. s. 2. because it does not defeat or delay Creditors, the Copyhold being neither liable to ajieri facias or an elegit l . A. brought an Action against B. for adultery with his Wife, and thereupon B. assigned his Estate to Trustees, in Trust to pay debts men- tioned in a schedule, and such other debts as he should name within ten days ; and afterwards A. recovered .£.5000 damages, and filed a Bill to set aside the Deed, but it was held not to be fraudulent; A. being no Creditor on the execu- tion of the Deed, and his debt recovered after, being founded in malcficio" . r Worsley v. De Mattos, Doug!. 86. Butcher v. Easts, 1 Burr. 467. Hague v. Rollis- Dougl, 294. ton, 4 Burr. 2174. Aldersou v. s Jacob v. Shepherd, 1 Burr, Temple, 4 Burr. 2235. Harman 478. Unvvin v. Oliver, mention- v. Fisher, Cowp. 117. Rust v. ed in 1 Burr. 481. Cooper, Cowp. 629. Hassell v. ' Ex parte Cockshott, 3 Bro. £imp s on, Dougl. 89. S. C. C. C. 502. 1 Bro. C, C. 99. Devon v. Walls, u Lewkner v, Freeman, Prec* Ch. 105. TRUSTS. 433 If a Man, in his Life, creates a Trust for pay- ment of debts, and annexes a schedule of some debts, and creates a Trust term for the payment, as that is in the nature of a specialty, it will make these, though simple contract debts, carry interest v . A Bill by such Creditors as had Bigned a Deed of composition arising from a Trust Estate, con- veyed for the purpose of paying debts in general, other Creditors refusing to come in, to have the Trusts of the Deed carried into Execution, has been dismissed w ; but, it seems, a Bill may be ex- hibited by those Creditors, who come in under the Trust Deed, against those who stand out, to come in, or renounce the benefit of the Trust x . It seems doubtful, whether under a Trust " to Vaise Money by Sale or Sales, Mortgage or Mort- gages," and Money is raised by Mortgage, the Trustees have power to sell the Estate to pay off that Mortgage y . Where a Deed of Trust is made for payment of debts, it extends only to debts contracted at the time of making the Deed 2 . 4. By the Common Law, a Chose in Action cannot be assigned, or granted over 1 , except in • Barwell v. Parker, 2 Ves. y Palk v. Lord Clinton, 12 303.and seeCountessof Kildare Ves. 48. v. Hobson, 4 Bro. P. C. 1G4. ' Purefoy v. Purefoy, 2 Dick. w Athertonv. Worth, IDick. 28. S. C. 1 Vern. 28. but see 375. Lewkner v. Freeman, Prec. Ch. x Dunch y. Kent, 1 Vern. 105. 2G0. but see Athertonv. Worth, * LampeVs case, 10 Co. 46*. 1 Dick. 375. VOL. I. F F 434 EQUITY JURISDICTION". the case of the King* who may either grant or re- ceive a Chose in Action, by Assignment 1 "; but in Equity, a Chose in Action may, for a consideration , be assigned a , and is good against Creditors under a Bankruptcy e ; and in the Assignment, no parti- cular words are necessary f , though it usually con- tains an Agreement to permit the Assignee to make use of the name of the Assignor to recover the property, and is considered in the nature of a Declaration of Trust s . And though a Chose hi Action be assigned in consideration of love and affection and advancement of children, it is good against the Representatives of the Assignor 1 '. A Chose in Action, once, assigned, cannot, gene- rally speaking, be afterwards assigned, though the Assignruent be without notice*. If, how- ever, the Purchaser of an equitable right, gives no notice to the Trustee of his purchase, and such equitable right is afterwards assigned to a second Purchaser, who gives notice of his Assignment, he, it has been thought, would be preferred k . b See 2 Ws. 181. c In Lord Carteret v. Pas- chal 1, 3 P. Wms. 199. it was held it rai^ht be assigned with- out consideration ; but see 2 Vern. 595. 3 Chan. Rep. 90. * Browne v. Heathcote, I Atk. KiO. ' 1 Ves. 332. « Butl. Co. Lit. 232 b . n. 1. 3 P. Wins. 199. b Wright v. Wright, 1 Ves. Anon.2Freem. 145. Robinson 409. Feurne 550, last edition, v. iiavasor, Vin. Abr. tit. As- ' Tourville v. Naish, 3 P. signment, (D) Ca. 29. Wins. 307. Brace v. Dutchess d Squib v. Wynn, 1 P. Wins, of Marlborough, 2 P. Wms. 381 , Wnght v. * Wright, 1 Ves. 49G. 411. Row v. Dawson, 1 Ves. k Sugden's Vend, and Purcb. Soli. is. 229. overruling Tho- 600. last edit, who cites Stan- mas and Freeman, 2 Vern. hope v. Earl Verney, But. 5u3. note (1.) to Co. Lit. 290", 1 Ves. 307. 9 Ves. 411. TRU3T3. 43 J The reason of the Law's not allowing such assignments have been considered as refined 1 ; but there seems to have been wisdom in it, (as there is in almost all the provisions of the Common Law,) since it tended to champerty and maintenance, and to pass debts into the hands of the more powerful, who were thus enabled to op- press the inferior orders. An Assignee of a Chose in Action, as he is en- titled to all the remedies of the Seller m , so, he takes it, subject to the same Equity as it was liable to in the Assignor's hands n , except in the case of the assignment of Bills of Exchange, or notes, before they are due, which may be enforced by an Assignee for a valuable consideration; though no consideration was given by the Person who assigned to him ; an exception made in favor of Trade °. Where there is an Assignment of a Mortgage, in general cases, the Assignee takes it entirely at his risk as to what is due between the Mortgagor and Mortgagee, upon taking the account from be- ginning to end, unless the former joins in the assignment 1 '. If after an assignment of a Mortgage, payments 1 Thomas v. Freeman, 2 1 Ves. 122. Davies v. Austen, Vern. f>0:5. 1 Ves. Jan. 247. : " Ex parte Lloyd, 17 Ves. Anon. Com. Rep. 49. S. C. 24,>. 2Eq.Abr. 85. n Coles v. Jones, 2 Vern. p Chambers v. Goldwin, C92. Turton and Benson, 2 9 Ves. 204- 208. Vein. 7G4. Hill and Caillovel, F F 2 43 G EQUITY JURISDICTION. are made to the Mortgagee, without notice of the Assignment, the Assignee must allow such pay- ments ; and this, though the assignment of the Mortgage be registered, for the registry is not no- tice for that purpose* 1 . It is ill advised, therefore, to take an assignment of a Mortgage without making the Mortgagor a Party, and being satisfied as to the sum really due r , As between the Mortgagee and the Persons claiming under him, without the privity of the Mortgagor, they cannot add to what* is due, settle the account, or turn the Interest into principal s . If a Mortgagor permits an Assignee to pay the Assignor a sum of Money, which he, with the knowledge of the Mortgagor, represents to be due, he will himself be bound by the transaction*. If a Legacy be assigned, the Executor, when called upon, cannot set off a debt, due to himself from the Legatee". If a Bond debt be due to J9., and B. assigns it, the Obligor is bound by having notice of the as- signment, and his payment to B. afterwards, will not be a discharge as to the Assignee r . It would be otherwise, if there were no notice of the Assign- ment w . All possibilities or contingent Interests, whether q "Williams v. Sorrell, 4 Ves. and Gladwin v. Hitchman, 2; 3S9. Vein. 135. r Matthews v. Wallwyn, ' Chambers v. Goldwin, 4 Ves. 127. 9 Ves. 270. s lb. 128. and see Asken- ■ Whitaker v. Rush, Ambl. hurst v. James, 3 Atk. 271 ; 407. but see contra the decree in v Diet. Langley v. Lord Ox- Earl of Macclesfield v. Fit- ford, Ambl. 17. 2 Vern. 540. ton, 1 Vern. 169. in note 1. Baldwin v. Billingsley. . w 1 Chan. Ca. 232. TRUSTS. 437 of Ileal or Personal Estate, though not grantaf. li- nt Law, are, it seems, assignable in Equity x , as well as transmissible, and deviseable y . But an assignment of the half pay of an officer has, upon grounds of public policy, been held to be bad': though, previous to the Statute", the pay of a seaman might be assigned b . At Law, a Sale by an Heir of his hope of suc- cession, is void'; though in Equity, there are cases where it has been established' 1 ; but Lord Eldon has expressed a serious doubt upon this point e . Not only a Trust in esse, but the possibility of a Trust, maybe assigned in Equity'. Assignments by an Husband, of Choses in Action, belonging to his Wife, have before been adverted to s . We proceed now to the consideration of, 2. Express Trusts created hy Will. The doctrine as to Devises and Bequests taken in its full extent, and comprehending Devises and Be- quests of Legal, as well as of Trust Estates, would,* unavoidably, be very voluminous ; but it is only the consideration of Devises and Bequests in Trust, x Warmistry v. Tanfield, Register's book, 3 Ves. 208. 1 Cb. Rep. 29; and see 1 Ch. note (a). Ca. 8. a 1 (Jeo. 2. st. 2. c. 14. y Fearne on Executory De- b Crouch v. Martin, 2 Vera* vises, p. 54S. etc. last edit. 595. * Stone v. Lidderdale, 2 c Touchst. 239. Perk. G8. Anstr. 539. Hobson and Trevor, Jones v. Roe, 3T. R. 88. 2 P. Wras. 191. Beckley v. d Hobson v. Trevor, 2 P. Newland, 2 P. Wins. 181. Wms. 191. Beckley v. New- Wright and Wright, 1 Ves. land, 2 P. Wms. 181. 409. Murat v. Gordon, 1 Anstr. l 1 a Havwood v. Tooke, MS. 34. Barnes v. Allen, 1 Bro. f Warmistry v. Tanfield, C C. 181. S. C. stated from 1 Ch.Rep. 29. « Ante 383. 438 LQt'ITY JURISDICTION. which, consistently with the plan of this Work, is here necessary tobc considered; for they alone pe- culiarlybelong to Equitabie cognizance. Nor is it all Devises of Land in Trust that will here be con- sidered, but only such where the construction of the words of a Will is different in Equity, from the construction which the same words would receive in a Court of Law ; for in those cases where the construction of a Court of Equity upon words, is the same as in a Court of Law, Equity professes to follow the Law, and Common Law decisions must be resorted to, as the most con- clusive authorities. Jn all those cases where there is an express devise in Trust, or where the Estate is in the hands of Trustees, a Court of Equity is exclu- sively entitled to decide. A Court of Law will not take cognizance of a Trust: and so strictly do they adhere to this rule, that if a Case be sent to them from theCourtofChancery for theiropinion, they will refuse to give it, if the Case states a Trust. The Common Law Courts in such cases have no jurisdiction ; and on the other hand, generally speaking, the Chancellor has nothing to do with Legal Estates ; but his right of deciding as to hem , often arises collaterally. If, for instance, an Estate is agreed to be sold, and a Bill is filed by the Vendor to enforce a specific performance of the Agreement, in such case, the Vendee may answer, " I am ready to perform my Agreement, if you the Plaintiff can make a good Title/' Upon this, as before ob- served, it is referred to the Master, to consider TRUSTS. 439 if a good title can be made, and upon exceptions, the Chancellor may lie called upon to deter- mine as to the legal title to the Estate. In these, and in a variety of other cases, that might be put, the Chancellor is often called upon to decide on the legal title to an Estate, though the Courts of Common Law never can, in any ■way, be called upon to decide upon the equitable title to an Estate. But though in these instances, the Chancellor may be called upon to deeide a strictly legal ques- tion, yet if he has any doubt upon the subject, (unless the Parties wish to have a Judgment without directing a case,) he usually directs a case to one of the Law Courts 3 ; thus acknow- ledging those Courts to be, as they certainly are, the most proper forum for the decision of such questions. We shall not, therefore, (in confor- mity with the plan of this work b , which is exclu- sively confined to Chancery doctrine,) notice any of those decisions which have been made upon legal titles ; and shall only premise, that 'here is no difference between Law and Equity in deter- mining upon the effect of a testamentary act c , and that the Devise of a ln,u must have the same construction as that of a legal Estate''; a Court of Equity having (with some few exceptions) no greater latitude in the construction of Wills, than a Court of Law has •. •See Attorney Gen. -and d Atkinson v. Hutchinson, Vigor, 8 Ves, 272. 3 P. Wins. 259. ' "• Preface. ' See Duke of Marlborough e Habergham v. Vincent, v. 1 ord Godolphio, 2 Ves. 74. 2 Ves. Jun. 2o r o, 0. 440 EQUITY JURISDICTION. The same words which give a legal Estate, in the construction of a Court of Law, do also in the same manner give a Trust Estate in a Court of Equity. Whether an Estate in fee, in Tail, or for Lite, or otherwise, passes, is decided by the same Rules as in Courts of Law, whether the Devise be of a Legal or a Trust Estate, except in the case of Executory Trusts, there being a difference between, what are termed, " Trusts executed," and " Executory Trusts. 3 ' In the case of a Trust executed, there ought to be no difference of construction in a Court of Equity, from what there is in a Court of Law, upon a legal limitation f . It was, indeed', the observa- tion of Lord Jeffcries, that the construction of Trusts, must be governed by the intention s ; but, with the exceptions adverted to, no rule is so strictly adhered to in Equity, and considered so dangerous to depart from, as that the construe-* tion of Trusts must be the same as of legal Estates 11 * It is not so to all collateral purposes, since, a Tenant for Life of an equitable Estate, cannot destrov contingent Remainders 1 . The consideration of Executory Trusts, is ex- clusively under the cognizance of a Court of Equity, and there is a series of decisions on that subject, peculiar to those Courts. ' Wright v. Pearson, Ambl. * Ante, p. 393. this doc- 3(>2. trine is expressed doubtfully ; e Norton v. Mascall, 2 Vera, but in Chapman v. Blisset, 24. MS. Lord Talbot held, clearly, h Wright against Englefield, the Remainder could not be Ambl. 473. Cary v. Bertie, 2 destroyed, S. C. For. 145. Yern. TRUSTS. 411 " This," says Lord Hardwicke in a case before him upon a devise, " is a mere question of Law, and is already put in a proper course, (a case having been directed,) and unless there was some- thing executory in it, I ought not to meddle with it in Equity, except there were some case already in point determined k .'' So, in regard to Bequests of personal Estate, de- terminations upon them, in most cases, belong, in preference of Courts of Law, to the consideration of Courts of Equity ; for Executors or Administra- tors are considered merely as Trustees in a Court of Equity, and all Persons to whom Bequests are made, are considered as Cestuis que Trusts, and as such, entitled to have their rights ascertained and protected by a Court of Equity ; and to those Courts recourse is usually had, to obtain the benefit of a Bequest of personal property. We shall, therefore, after a few words upon the general Rules for the construction of Wills proceed to consider Executory Trusts, and personal Bequests, I. In regard to decisions upon Wills, there is only one general Rule of Construction, equally for Courts of Equity, and Courts of Law ; which the Courts are bound to apply, however they may condemn the object. The Intention must be followed where it is plain, even though con- trary to the legal operation of words in the Will '; for in a Will no particular words are required to k Colaon v, Colson, '1 Atk. ' Cowper v. Earl Cowper, 2;">0, 2 P. Wins. 741. 442 EQUITY JURISDICTION. pass an Estate, but any words that shew the inten- tion of the Testator are sufficient m . This inten- tion is to be taken from the whole Will taken together, and nothing dehors the Will can be produced to explain the same, unless there be a latent ambiguity in the Will". Every word is to have its effect. Every word is to be taken ac- cording to the natural and common import"; but whatever may be the strict grammatical con- struction of the words of a Will, that is not to govern if the intention of the Testator unavoida- bly 11 requires a different construction* 1 . " li," says Lord A Ivan lei/, " upon a general view of the Will, I can collect the general inten- tion, or any one particular object, and there are expressions in the Will, in some degree militat- ing with it, if I plainly see those expressions are inserted by mistake, l may reject them r . But I cannot reject any words unless it is perfectly clear, they were inserted by mistake : and if two parts of the Will are totally irreconcileable, I know of no Rule but by taking the subsequent words as an indication of a subsequent inten-. tionV m Dobbins v. Bowman, q 4 Ves. .311. 3 Atk. 409. r See accord. Haws v. Haws, ■ Andrews against Emmot, 3 Atk. 525. 3 Rro. C. C. «j03. s Sims v. Doughty, 5 Ves. Vid. Thelluson v. Wood- 247 ; and see Constantine v. ford, 4 Ves. 329. Constantine, 6 Yea. 102. v Phillips v, Chamberlaine, 4 Ves. 57. tiiusts. 443 In the construction of Wills the Court will not exactly consider the order of placing the words, if it would better answer the apparent intent of t)\e Testator otherwise, and render a limitation sensible 1 ; — but not to kt in different devisees and legatees in a Will ". A mistake cannot be corrected, or an omission supplied, unless it is perfectly clear, Sy fair in- ference from the whole Will, that there is such mistake or omission'. Whenever it comes to be a doubt, the safest way is to adhere to the words". If words of art are used, they are to be con- strued according to the technical sense, unless by the context, or by express uords, it is plain, the Testator did not intend them to be taken in that sense x . But the Court will abide by the prima facie, intention, the settled meaning of the words, until driven out by strong, solid, and rational interpretation, put upon, and plain inference drawn from, the rest of the Will y . The Court are bound to carry the Will into effect, provided it is consistent with the Rules of Law ; for Men's Deeds and Wills by which they settle their Estates are the Laws that private Men are allowed to make, and they are not to be altered even by the King in his Courts of Law • East v. Cooke, 1 Ves. 32. w Mellish v. Mellish, 4 Ves. u Duke of Marlborough v. 50. Ixnrd Godolphin, 2 Ves. 01. x Holloway v. Ifollowav, T Mellish v. Mellish, 4 Ves. 5 Ves. 401. ami see Ambl. 377. 49. phillips v. Chamberlaiae, T Deane v. Test, 9 Vcs. 152, 4 Ves, Jan. 57. 154. 411 EQUITY JURISDICTION. or Conscience 7 ; and if the Court can see a general Intention, consistent with the rules of Law, but the Testator has attempted to carry that into effect in a way, that is not permitted, the Court is to give effect to the general intention, though the particular mode shall fail a . In some cases, cases of Creditors, an Intention in the Testator may be inferred from the. purpose of his Devise, beyond any thing he has said in express terms b . Where words in a Will are capable of a two- fold construction, such a construction is received as tends to make it good c . It has been said that though the Court can construe and expound the words of a Testator's Will, yet they cannot strike them out of it en- tirely d ; and, certainly ,1a Court will not reject words having an obvious meaning, upon a suspicion that the Testator did not know what he meant e ; but words may be rejected where they are repugnant to the clear intention manifested in other parts of the Will f ; but a positive bequest cannot be controuled by inference and argument 5 . It has been observed that if two parts of a Will are totally inconsistent, and cannot possibly be reconciled, the latter shall prevail. Where, how- ever, the same thing has been by different parts of r Lord Falkland v. Bertie, e Milnes v. Slater, 8 Ves. 1 Vern. 337. 306. 8 lb. 329. f Holmes v. Cradock, 3 Ves, Mb. 311,312. 320. c lb. 312. g Jones v, Colbeck, 8 Ves, "Southcote v. Watson, 3 Atk. 42. 233. TRUST.-. 44j the Will given to two persons, doubts have been entertained, whether they should not be joint- tenants. If* a meaning can be collected, but it is left •wholly doubtful in what manner that is to take effect, the Will is totally void for uncertainty h . Such are the rules adopted in respect of judg- ments upon Wills ; and it must be obvious that a decision upon a perplexed Will, must, unavoida- bly, very much depend on the judicial discre- tion of a Judge, and cannot, in general, be otherwise characterised, than as " the conjecture of the Judge upon the meaning of the Testator, after hearing his intention discussed upon the whole Will 1 ." 2. An Executory Trust by will, is where the Will does not give a legal Estate, but only creates a Trust to be carried into execution ; where, in short, there is no direct gift made, but it is left to the Law to frame the Conveyance under which the Party is intended to take, by a general ex- pression of Intention k . The distinction between Trusts Executed, and such as are executory, is this. A Trust executed, is where the Testator has given complete directions for settling his Estate, with perfect limitations. An Executory Trust, is where the Testator's di- rections are incomplete, and are rather minutes or h Constantinev. Constantine, k Countess of Lincoln v. 6Vei. 102. Duke of Newcastle, 12 \\>. 1 See what Lord Eldon says, 2-31. 9 Ves. p. 152. in Deane v. Test. 416 EQITTY JURISDICTION. instructions. In the cases of Trusts executed, legal expressions will have a strict legal effect, as in immediate devises at Law, though, perhaps, contrary to the Testator's intention 1 ; but in the cases of Executory Trusts, the Court will con- sider the intention, and direct the Conveyance according to it m ; and words of limitation, as " Heirs of the body," will be construed as words of purchase, if the Testator has, by expressions in his Will, shewn an intention that they should not be construed in the former sense. The execution of Executory Trusts created by Deed, is the same as of Executory Trusts, created by Will 1 '. Cases of this description, arising out of Marriage Articles , have before been adverted to. In the cases of Trusts executed, or immediate 'devises, the construction of Courts of Law and Equity, is the same, because the Testator is thought not to suppose, that any further convey- ance will be made ; but in Executory Trusts, he is thought to mean, to leave somewhat to be done, the Trusts to be executed in a more careful and more accurate manner ; and for that reason, the Court decrees according to the Intent, and not according to the strict legal effect of the 1 See Shaw v. Weigh,'l Eq. 91. Garth v. Baldwin, 2 Ves, Abr. 184. Jones v. Morgan, 655. 1 Bro. C. C. 206. Poolev. Poole, n Vid. what Lord Eldon says 3 Bos. and Pul. 820. 12 Ves. 227. m White v. Carter, Amb!. • Ante, p. 50. TRUSTS* 417 terms, used by the Testator p . This doctrine appears to have been for the first time au- thoritatively settled, in the Attorney General v. Sutton, which went from the Exchequer, to the House of Lords 4 . The case of Papillon and Voice', has often been quoted, in illustration of the Rule of the Court on this subject; for in that case, it is said l , the legal rule prevailed as to that limitation in the Will which included or carried the legal Kstate ; and the intent was permitted to controul the legal rule, as to that part of the same will, which was purely executory, though the words of the Will, were, except as to this difference, exactly the same. It will, however, be found that, though the distinction between Trusts executed and execu- tory, is well established, yet that Papillon and Voice is not an authority for it. According to a MS. Report of that case, in the Author's possession, it appears, that after the decree from the Rolls was appealed from, a Supplemental Bill was filed by the Plaintiff, setting forth that, upon his Father's death, he covenanted to settle the Manor of Great Bentley to the use of himself for life, with a Re- " See Glenorchy r. Bosville, « 1 P. Wms. 733. S. C. M.S. Tor. 19. S. C. MS.' Stamford v. r 2 I* Wms. 478, S. C. MS. Hobart, 1 Bro. P. C. 288. *1 Fonbl. Treat. Eq. p. 403. Huberts v. Dixwell, 1 Atk. Fearne o» Remainders, 140. C07. Sperling v. Toll, 1 Ve*. last edition. 70. 448 EQUITY JURISDICTION. mainder to his first Son in Tail, and upon this the Counsel for the Defendant gave Up the first point as to the Estate of Great Bent ley ; and the only ques- tion which remained for the Chancellor to deter- mine was, what Estate the Plaintiff was to have, in the Lands to be purchased, with the moiety of the Father's personal Estate ? What the Chancellor said is stated in the MS. Report, alluded to, as follows: " Lord Chancellor — An Estate to one for Life, with a Remainder to the Heirs of his body, is, in Law, an Estate in Tail ; and if a Man has made a Will we cannot controul him and say he ought to have made it otherwise. I am inclined to think this an Estate in Tail, but if you will, you shall have a case made for the opinion of the Judges ;" but that, the Counsel for the Defen- dants objected to, so it stood over till the next day ; when the Chancellor continued of the same opinion as to the Letter of the Will ; but said, " as the Intent of S. Papillon was plainly that it should be an Estate for Life in his Son, and as they now come for aid from this Court, we ought to tie them down to what was intended by the Donor: so decreed that his Trustees should find out a Purchase as soon as they could, and that it should be conveyed to the Plaintiff for his Life, Re- mainder to Trustees to preserve, &c. with Re- mainder to his first Son, &c." It is very plain, therefore, that no decision was made upon the appeal in regard to that part of the devise which was a Trust executed, but only on frSVST. 4 !D that part of the devise which was executory^ and cannot, therefore, properly be cited, as a deci- sion, establishing the distinction between Trusts executed, and Executory Trusts* That distinc- tion, however, is fully established in the various cases before alluded to, as well as in others, th at may be mentioned. The decisions in these cases, of Executory Trusts, do not arise, Lord Hardwicke says, from the Courts' making a different construction upon a trust, than upon a legal Estate, but that ;ome circumstance in the will lias induced the Court to make a narrower construction *. The cases have been where some clause repug- nant to the nature of an Estate Tail, shewed the Donor intended only an Estate for Life. An Es- tate granted or given by will to A. for Life, and to the Heirs of the body of A., by the Common Law, and the well known rule in Shelley's case h , gives an Estate Tail, and the same Rule prevails with respect to Trust Estates ; but where the Testator by his Will directs his Trustees to convey to A. for Life, and to the Heirs of the body of A., the Trust is considered as Executory, on account of the direction to the Trustees to convey, and in such case the Court directs how the Party shall con- vey, and considers the intention of the Testator, and orders the conveyance according to the form 1 Roberts v. Dixweil, 1 Atk. b 1 Co. 93. G09. VOL. I. C G 450 EQUITY JURISDICTION. and method of conveyancing ; and so as not to let it be in the power of the first taker to destroy the Contingent Remainders' 1 . And where lands were directed to be settled on A. and the Heirs of his body, with a proviso that it should not be in his power to dock the entail, a strict settle- ment was decreed e . So, where Lands were directed to be conveyed to A. for Life, with remainder to the issue of her body, a strict settlement was decreed f . Wherever, indeed, in a Will, the Testator has directed his Trustees m whom the legal Estate is vested to convex), ^'c. this is an executory Trust, and the Court, as in cases of Marriage Articles, has it in its power, to mould the conveyance so* as best to answer the intent of the Testator e ; but in all these cases, the intention of the Testa- tor must appear expressly or impliedly from ex- pressions in the Will h . A mere direction to convey an Estate to A. and the Heirs of his Body, will entitle A. to a convevance to him, of an Estate Tail '. In Wills k , as in Marriage Articles l , cross Re- mainders may be raised by implication. c See Roberts and Dixwell, h Stanley v. Stanley, 1G Ves, 1 Atk. 607. 491. 1 Huskerville v. Baskerville, Legate v. Sewell, 1 P.Wins. 2 Atk. 279. 87. Bale v. Coleman, 1 P. e Leonard v. Earl of Sussex, Wms. 142. 2 Vera. 526. k Marryatv. Townley, 1 Ves. ' Glenorcliy v. Bosville, For- 102, 104. Green v. Stevens, rester 3. S. C. MS. ; and see 12 Ves. 419. 17 Ves. 04. Sir J. Stamford v. Hobart, ' Twisden v. Lock, Ambl, 1 Bro. P. C. 288. 603 ; and see 17 Ves. 67. B Marryat v. Townley, 1 Ves. 130, ljfitXSTS 4 31 hi all cases where the Testator has directed Money to be laid out in Land, it is not material whether he has used any technical terms: if there be a clear intention, the Court will execute that intention, by correcting, adding, or altering the sense. The Only question where the Court is to be the Conveyancer, is, whetherthe Intention of the Testator be against any rule of Law, as to create a perpetuity; but if the Intention be ac- cording to the Rule of Law, it will give it effect" 1 . The distinction between Trusts executed and Executory Trusts, is, as we have seen, fully es- tablished in a variety of cases ; but Lord Hard- wicfee, in his decision in Bagskaw and Spencer, is supposed to have denied that there was any dis- tinction between them ; and is thought to have placed them on the same footing, by declaring that- ' all Trusts are exec u ton/. '.' By this observation, it is apprehended, Lord Hardwicke did not mean todenv, however strongrlv and justly he may have disapproved, the distinction in Equity between those cases where the Estates nte finally limited by the Will itself, without any kind of reference to any further execution of them, by a conveyance directed by such Will, and those cases, where the Will is only directory, and prescribes the intended limitations of some future conveyance, or settlement, directed by the Browne against Do Laet, 4 Br>. C. C. 535, G G 2 43'2 EQUITY JURISDICTION. will to be made for the effectuating them ; but that all he unequivocally and expressly denied, was the propriety of terming the former class of cases, " Trusts executed.'' It was the complaint of a Logician. The remark of Lord Hardwicke was not anew, nor a hasty, off-hand notion, then, for the first time entertained by the Chancellor. So long as ten years before, in the case of Hopkins and Hop- kins n , according to the Report in Atkins, he had expressed a similar opinion. Besides, too, there was owing to the Trial of the Rebels near an in- terval of three years, between the hearing and the decision in Bagshaw and Spencer. Indeed, in one of the MS. Reports of this case, with which the Author has been favoured, his Lordship prefaces his Judgment with an apology for the length of time it had been depending. It may therefore be fairly concluded, that this part of the case was maturely and anxiously considered. If there was error, it was not casually, or hastily adopted,. but fallen into, after an almost unprecedented length of deliberation. According to Atkyns's Report of Hopkins and Hopkins, the Chancellor is reported to have said, " a distinction was taken between those cases and the present, that they were cases of extraordinary Trusts, where the Will itself directed a Convey- ance, and where there is no Conveyance directed, but the Trust only declared by the Will. I ad- * 1 Atk. 580. TRUSTS. 453 mit the Court has thrown out such sort of ex- pressions, but I think there is no difference, all Trusts arc executor//, and whether a Conveyance be directed by the Will or not, this Court must decree one, when asked at a proper time, but / do not give any conclusive opinion to oust thai dis- tinction" The case of Hopkins and Hopkins has had its general correctness justly impeached by the late Earl of Rossli/n ; but there is no reason to suppose it incorrect as to the passage quoted. The Author has in his possession, a very ex- cellent note of that case; but certainly neither in that note, nor in the report of the case by Forrester , is any thing to be found, like the marked observation upon Trusts executed and executory, as is given in the Report of Atkins. But it seems highly probable, that Lord Hard- wicke did use the language attributed to hirp ; for in the case alluded to of Bagshaw and Spen- cer, a case so long subsequent to Hopkins and Hopkins, and of which there are many Re- ports p in print and in manuscript, he lays clown a doctrine every way consistent with that, which he had promulged in Hopkins and Hopkins. His words are — "All Trusts are in the notion of Law executor//, and are to be executed in this Court. At Law, before the Statute of Uses, every use was a Trust, then the Statute executed the legal Estate, and joined it to the use, and therefore a Trust executed is a Legal Estate ; and to bring it to a Trust in Equity, the legal Estate must want to Cas. Temp. Talbot, p. 44. i* in 1 Vol. Collectanea Jua- 1 The best report of this case ee Yin. Abr. 62. vol. 8. p. 198. e Hudson v. Hudson, 1 h Browne r. Selwyn, For. Atk. 461. Fox v. Fox, 1 Atk. 242. S. C. M. S. 463. Wankford v. Wankford, 'lb. 1 Salk. 291) ; but see Phillips v.Phillips, 2 Freein. 11. 472 EQUITY JURISDICTION. and in aid of that is entitled to come upon such Real Estate, as would have been Liable to Dower k . Where a Wife's -Estate is Mortgaged, for the benefit of the Husband, she has, if she survives, a right, after all his debts are paid, to stand as a Creditor against his Assets', (unless at the time of the Mortgage a Settlement is made on the Wife 1 ";) but evidence is admissible to shew that the Wife intended otherwise. The Title of the Wife to be exonerated, is considered as precisely the same with that of the Heir n . If the Mortgage of the Wife's Estate is not for the Husband's debts, or for debts due from the Wife duin sola °, his Assets though he join in the Mortgage are not liable?. And where the Wife has the absolute disposal of the Money, and appropriates it to the use of the Husband, the Husband's Assets are not liable 01 . On the same principle, if a Father, Tenant for Life, and his Son, join in raising Money, which is received by the Father, he is bound to exonerate the Son's Estate from the Incumbrance 1 . Where Husband and Wife live together, she is * Tewv. Earl of Winterton, 3 Bro. C. C. 201. S. C. 1 Ves. 1 Ves. jun. 451. 8. C. o Bro. jun. 173. CO, 489. "Lewis v. Nangle, Ambl. 150. 'Tate v. \ustin, 1 P. Wins. p Bagot v. Oughton, 1 P. 264. S. C. 2 Vera. €89. S. C. Wms. 347. S. C. Fortescue, on Appeal, 1 Bro. P. C. 1. see 332. Mod. Cas. 249, 381 ; and Parteriche v. Powlet, 2 Atk. see Clinton against Hooper, 384. a.id Inledon v. North- 3 Bro. C. C. 211. S. C. 1 Ves. cote, 3 Atk. 430. and Lewis jun. 188. against Nangle, Ambl. 150. q Clinton v. Hooper, 3 Bro. m Lewis v. Wangle, Ambl. Ch. Ca. 213. 150. r Piers v. Piers, 1 Ves. 522. ■ Clinton against Hooper, TRUSTS. 473 not entitled to an Account of her separate Estate against his Creditor and Assignee, nor against his Representative an) farther back than from the death o£ the Husband*, unless lie promised to pay the arrears 1 . With reap< ct to Assets they arc either real or personal, and legal or Equitable. Legal Assets are such as constitute the Fund for the payment of debts according to their legal priority. E<• reached o 1 1 ; v b the Aid of a C ~>u . of Equity, and are di 1 isibh ,pari passu, among .11 tne Creditors. Every thing may be consi.-'ovta as equitable Assets, which the Debtor has nadesubj* 1 1< his debts generally, and which, without his Act, ould not have been subject to his debts generally v . Equitable Assets in the hands of an xecutor are in some respects applied as legal Assets are: as, first to pay debts and then Legacies"; but they are different in this, that all the Creditors take proportionably, and not in a course of administration, as in the case of legal Assets*. And where a Testator lets in Creditors by a charge, it is now settled, whatever doubts may formerly have been entertained, that Cre- ditors are to be paid in preference to Legatees y . 8 See Smith v. Lord Camel- T 2 Fonbl. Eq. 398. in note, ford "2 Ves. jun. 710. Dalbiac K Hixon v. Witham, 1 Vein, and Dalbiac, 16 Ves. 126; 482. Walker v. Meaner, 2 P. and see Parkes and White, 11 Wms. 552. S. C. Mos. 204. Ves. 225. and Squire against Maylin v. Hoper, Cas. Temp. Dean, 4 Bro. C. C. 320; but Hard*. 206. contra Gosling v. see Parker v. Brookes, 9 Ves. Doraey, 1 Vera. 482. 588. * Solley v.Gower, 2 Vera. 62. 1 Ridout v. Lewis, 1 Atk. y Kidnej v. Coussmaker, 12 209. Ves. 155. 4?i EQUITY JURISDICTION. The ordinary Administration of real and per- sonal Assets, in the payment of specialty debts, is in the following order. 1. Personal Estate, not specifically bequeathed or exempted expressly, or by plain indication 7 , from the payment of debts. 2. Land express!// devised for ( not merely charged with) the payment of debts \ 3. Descended Estates b . 4. Lands charged with the payment of debts c . The same administration of the assets is made in the payment of simple contract debts, except that, as to them, descended Estates are not liable, unless in those cases where the deceased Debtor was a Trader according to the acceptation of that word in the Bankrupt Laws d . The personal Estate, is the fund first liable to the payment of debts, and is often called, " the natural fund ;" nor can a Testator, as against his Creditors, exempt the personal Estate ; but the Testator may, if he pleases, give his personal Es- tate as against his Heir, or any other Represen- tative, clear of the payment of his debts e ; but in order so to exonerate the personal Estate from the payment of debts, the Will must contain express a Samwell and Wake, 1 Bro. against Lewis, 2 Bro. C. C. C. C. 145. 1 Bro. C. C. 58. 203. Manning and Spooner, Davis v. Topp, 1 Bro. C. C. 3 Ves. 117. Milner v. Slater, 526. S. C. 2 Bro. C. C. 259 in 8 Ves. 306. note ; and see 1 Bro. C. C. 58. d See Stat. 13 Eliz. c. 7. a 1 Bro. C. C. 528. s. 11 1 Jac. 1. c. 15. s. 17. " lb. v Walker v. Jackson, 2 Atk. c Vid. Harmood v.Oglander, 624. Bridgman and Dove, 8 Ves. 124, 5 ; and see Davis 3 Atk. 202. Attorney Gen. and and Jopp, 1 Bro. 524. Donne Downing, Ambl. 572, 3. I RUSTS. words for that purpose, or, (a doctrine much la- mented') a plain manifested intent*; — a declaration plain, or necessary inference, tantamount to ex- press words 1 '. It is impossible to express in definition, what circumstances will be sufficient to shew tins intention; it must arise from the con- text of the Will '. It may be found, not merely in the mode in which the personal Estate is given, but also in the mode in which the real Estate is given, or the application directed to the payment of that debt ; for the real Estate may be so appro- priated to the payment of the debt, as to shew a clear intention that it shall not be a burthen upon any other Fund, though an intention to exonerate the personal Estate is not in any other way ex- pressed k . A mere gift of the Personal Estate, does not exonerate it from the payment of debts ', unless it be a specific gift m , as, where there is a gift to a Wife of her Paraphernalia "; and though a Will f SeeFerreges v. Robinson, 132. Lord Inchiquia against Bunb. 301. Ancaster against French, Ambl. 37. Mayer, 1 Bro. C. C. 462. Han- Ancaster against Mayer, cox v. Abbey, 11 Ves. 186. 1 Bro. C. C. 4U0, 462. Tait v. •Ayliftev. Murray, 2 Atk. Lord Northwick, 4 Ves. 823. CO. The first case proceed in;; k 11 Ves. 180. on this principle-seems to have ' Brummell v. Prothero, been Stapletou v. Colvilte, For. 3 Ves. 111. Phillips v. Phillips, 202. S. C. MS, 2 Bro. 'J. against Walker, 2 Bro. C. C. ° Pockley v. Pocklev, 1 008. Vein. 36, Tweddell v. Twed- dell, 2 Jiro. C. C\ 307. 154. 480 EQUITY JURISDICTION. If an Equity of Redemption is lost by lapse of time, the Mortgagee is considered as possessed of the Land, and it passes as such. Before the Statute of 3 & 4 Win. & M. c. 14. the Heir was not bound by Lands descending to him, where sold or aliened before Action brought; and if an obligor devised his Land, the Devisee so selling was not liable to the obligee 11 : that sta- tute, therefore, was passed to remedy the defect in the statute ( 13 Eliz. cap. 5.) of fraudulent Con- veyances, and to extend it to fraudulent Devises b , and render the Heir liable for the value of assets aliened . Since this Statute, therefore, a Rever- sion in Fee, coming into the Possession of a Son, as Heir to his Father, who died indebted by spe- cialty, is assets for the payment of such debts, though it be devised by the Son d . So, if there be a Son and Daughter by one Venter, and a Son by the second Venter, and the Father dies indebted, and the Son by the first Venter enters and is seized, and dies, the Daugh- ter is entitled by way of possessio fratris, and is liable to her Father's debts 6 . By the express words of the statute (3 & 4 W. & M. c. 14.) where there is any devise or ap- pointment by Will, of Lands, for payment of debts or Children's Portions, according to an Agree- * Fremoult v. Dedire, IP. c See Coleman and Winch, Wms. 431. IP. Wms. 277. b Kinaston v. Clark, 2 Atk. d Kinaston v. Clarke, 2 Atk. 204. 204. • lb. 205. TJIUSTS. 481 ment before Marriage, other than the Heir at Law, such Will shall be of force. And though the Statute prevents a devise for payment of Le- gacies^ so as to disappoint Creditors by specialty, it does not prevent a devise for payment of debts generally ; though the effect of such a devise, is, to let in Creditors by simple contract, to the prejudice of Creditors by specialty 11 ; who, in such cases, having no specific lien on the Laud 1 , must come in with the other Creditors pro rata\ for there is no relief but in a Court of Equity, as they could have no action against the Heir, or against the Heir and Devisee jointly \ A devise for payment of debts takes the case entirely out of the Statute 1 , and it stands, as it would have done, before the Statute was made; and the Creditor can claim only under the Will. If, therefore, an Estate be devised to Trustees, in Trust, out of the yearly Profits, to pay debts, &c. the Creditors cannot obtain a decree for a Sale of the Estate" 1 , though had there been no devise for payment of debts, the specialty Creditor would (under the Statute) have had a right to have his debt raised by sale; but though a bequest by Will or a charge v , in Law or Equity for payment p See Freemoult v. Dedire, ■ 2 Ves. 500. and see How 1 P. Wms. 4:30. 3 Atk. TRUSTS. 485 and will not binder the Son's Wife of dower ; but the Dower will not commence in possession, nor damages be recoverable for detaining it, but from the time of the debts being paid b . Where sums are by Will directed to be raised, by the Rents and Profits of an Estate, within a particular time, within which, the Estate would not answer the charge, the Court has directed a Sale: afterwards, the Court proceeded still farther, and directed a Sale on the words Rents and Profits alone c , though this is seldom agreeable to the Testator's intention ; on the ground, that Rents and Profits, in a Will, mean the Land itself d . If, however, a Trust be created for payment of debts, by perception of Rents and Profits, or by Mort- gaging, the Land cannot be sold for that purpose, as it might have been, if only the words Rents and Profits had been used e ; and so where there was a power of making Leases in order to raise Money for payment of the debts, it was held there could not be a Sale, because such a power would be frivolous, if a Sale was intended f . In cases of this kind, a private Act of Parliament is some- times resorted to e . b Hitchens v. Bitcbens, v. Earl of Derby, 1 Bro. C. C. 2 Vein. 404. 311. c Berry v. Askham, 2 Vera. ' Iw v. Gilbert, 2 P. Wms. 26. and see 1 C. C. 176. 13. Baines and Dixon, 1 Ves. d Baines v. Dixon, 1 Ves. 41; 42. and see Green v. Belcher, g See the recommendation in 1 Atk.506. Ridout v. Plymouth, 2 Atk. e Vid. Ridout v. Earl of Ply- 105. mouth, 2 Atk. 104. Lingard 4S(5 EQUITY JURISDICTION. Where Lands are devised to Trustees to raise Money for several purposes, and they raise the Money out of the Profits, the Land is thereby discharged, and the Persons interested must re- sort to the Trustees 11 . If a Real Estate be once charged by a Will duly executed, with the payment of all Debts', Legacies k , and Annuities, and not merely particu- lar Legacies 1 , as " Legacies above mentioned m ," or " hereby given"," the Testator may afterwards give either Legacies or Annuities, (Annuities are held to be Legacies % unless the Testator himself distinguishes them' 1 ) by an unattested co- dicil. The rule is so settled in many cases q , and is too well established to be disturbed ; though it has been doubted whether it is perfectly con- sistent with the Statute of Frauds ; for, in effect, the Testator disposes of his Land by an unat- tested codicil, when he is at liberty to burthen it with Legacies so given ; and it is observable that, all these have been cases, not of a primary charge, but auxiliarly, and in aid of the personal Estate, h Prec. Ch. 144. bergham v. Vincent, 2 Ves. 1 See Cox v. Bassett, 3 Ves. Jun. 231 . Sibley v. Perry, 1G3. 7 Ves, 534. k Brudenel v. Boughton, p As in Nannock v. Horton, 2 Atk. 274. Buckeridge v. 7 Ves. 391. Ingram, 2 Ves. Jun. GG5. * Hyde v. Hyde, Eq. Ca. 1 See 2 Ves. Jun. 6G5. Abr. 409. Lord Inchiquinand m Masters v. Masters, 1 P. O'Brien, Ambl. 33. Masters Wms. 423. and Masters, 1 P. Wms. 423. " Bonner v. Bonner, 13 Ve6. Jackson and Jackson, in n. 3 379. to 1 P. Wms. 423. Hannis v. ° See Duke of Bolton ' v. Packer, Ambl. 556. Brudenell Williams, mentioned in Ha- v. Boughton, 2 Atk. 2G8. Ha* TRUSTS. 4S7 which is the primary fund q . But Legacies out of a Real Estate given by an unattested paper cannot stand, unless that paper is clearly referred to by a Will duly executed, so as to be incorpo- rated with it ' ; and if a Testator by his Will does not say that all annuities and all Lega- cies he shall hereafter give shall be charges, but only, that, if at some future period he shall think proper to declare Legacies and Annuities to be charges upon the Real Estate, then the Trustees shall pay them out of the Real Estate, this the Law will not allow : it will not allow a Person by Will duly executed, to reserve a power to charge by a Will not duly executed s . If a Testator sa ys He charges all the Legacies given by his Wili upon his Real Estate, and gives i£20 to A., he may by an unattested codicil give that Legacy of £ L 20 to B. A Person in such case cannot create new Legacies; but he may modify or alter any before given : he cannot give fresh Legacies upon Land, unless future Legacies are charged; but he may substitute one for another 1 . In several cases, it was holden that, upon a bergham v. Vincent, 1 Ves. * Habergham v. Vincent, Jun. 411. Leacroft against 4 Bro. C. C. 3S9. Hooper and MayHard, 3 Bro. C. C. 233. Goodwin, 18 Ves. lo7. S. C. 1 Ves. Jun. 279. Reay r Smart v. Prujean, 6 V c s. v. Hopper, decided by Lord 500. Kenyon, and mentioned in * Vid. Rose v. Cunyn^haine, Habergham v. Vincent, 2 Ves. 12 Ves. 29 ; and see !' iberg- Jiin. 231. Com v. Ba^sett, ham v. Vincent. 2 Ves. Jun, 3 Ves. 103,4. Attorney Sen". 236. and •'» Bro. C C. 370,1. and Ward, 3 Ves, 827. Rose v. * Attorney Oen. v. WurJ, Cunynghame, 12 V es. 37. etc. 3 Yea. 33i. Bonner v, Bonner, 13 Ye*. 383. 48S EQUITY JURISDICTION. devise for payment of debts, simple contract Creditors were entitled to interest u ; but Lord Hardwicke decided to the contrary v , and such is now the established Rule of the Court*. Creditors are paid Interest according to the nature of their debts. Simple contract creditors have no Interest allowed them, and this, though a Trust out of Real Estate, be created for the payment of debts and Legacies y , and even of the Interest of debts 1 , in aid of the personal Estate. If an Account be stated by the Parties, it car- ries Interest from the time of stating b ; but the balance of a mutual account does not carry In- terest c : and if an account is decreed, it carries no Interest until the Master's Report is con- firmed' 1 . A Debt consisting of Principal and Interest computed on a Master's Report, afterwards con- firmed, has the effect of a Judgment at Law. Debts carrying Interest in their own nature, have Interest calculated upon them in the Mas- ter's office ; but Debts not carrying Interest have not-; and when subsequent Interest is calculated, u 1 P. Wins. 229, 334. and k 2 Ves, 3C5. 2 P. Wras. 25. c Borret v. Goodere, 1 Diet. '*2 Atk. 109. 2 Ves. 3G4, 428. 5S7. d Vid. 2 Eq. Abr. p. 8, in * Chapman v. Ansell, MS. marg. Earl of Bath v. Earl of » Harwell v. Parker, 2 Ves. Bradford, 2 Ves. 588. over- 3(14. Lloyd v. Williams, 2 Atk. ruling Maxwell v. Weltenhal, 1P8. 2 P. Wnis. 20. \"* Tait v. Lord Norihwick, 4 Ves. 8l6."„ TRUSTS. 4S9 it is only upon the Debts upon which Interest had been calculated before the Report, and no Interest is given upon the Debts, which upon the Report do not carry Interest e . This has the appearance of hardship, but the policy of the doctrine seems to be, to prevent those, who ought to be most active in prosecuting a decree, from becoming negligent, in expectation of Interest f . Interest is • not given from the confirmation of the Report upon demands liquidated by it, but not bearing Interest in their nature, as Legacies and arrears of Annuities* ; but on further direc- tions, it seems, the Court sometimes gives In- terest on demands not carrying Interest in their nature : as where Interest was not given by the decree, because the circumstances which made it proper, could not appear till the Report 1 ', or where there has been gross and wilful misconduct subsequent to a decree or order for payment, by delay in the execution of it'; hut the single cir- cumstance that the demand is liquidated by the Report, or any delay that might have been pre- vented by the diligence of the Party claiming e Creuze against Lowth, unities, the Drapers Company 4 Bro. C. C. 316. overruling a v. Davis, 2 Atk. 211 ; and Fer- contrary doctrine determined rers v. Ferrers, For. p. 2. insamecase, 4 Bro. C. C. 157. h See Margerum and Sandi- S. C. better reported 2 Ves.Jun. ford, mentioned 2 Ves. Jun. 157. and see 1 Bro. C. C. 43. 1G2. f See what is said in Ander- ' See Bickham v. Cross, 2 son v. Dwyer, 1 Sch. and Lefr. Ves. 471 ; and see Sammes v. 301. Rickman, 2 Ves. Jun. 30; and * Creuze v. Hunter, 2 Ves. see Tew v. Lord Winterton, Jun. 157. Sed Vid. as to an- 1 Vea. Jun, 452. -iyO EQUITY JURISDICTION. Interest, or which is the necessary consequence or' the nature of the Jurisdiction, is not consi- dered as a sufficient ground to charge the other Party with Interest 14 . As simple Contract debts do not carry Interest, so neither do arrears of a Jointure, nor the ar- rears of an annuity or Rent-charge ', unless where the sum is certain and fixed ; and there is either a clause of re-entry, or some penalty upon the Grantor™, and Creditors will not, by such allow- ance, lose their debts n . But though Interest is not, in general, given upon the arrears of a Jointure °, it has been given to a Jointress, where there has been a long and obstinate delay of payment, and frequent demands of the Money p . Bail in Error, who had been obliged to pay a Bond on which an Action was brought against the deceased, and costs, are not to be considered as specialty Creditors, but only as simple con- tract Creditors q . The Master in computing Interest on a Bond, is not to go beyond the penalty", except under k See Mr, Vesey's note to ° Anon. C62. Creuze and Hunter, 2 Ves. p Stapleton v. Conway, 1 Jun. 109. Ves. 428. 1 Vid. eases cited in Creuze q Goodman v. Purcell, and Lowth, 4 Bro. C. C. 318 ; 2 Anst. 548. and see Countess of Ferrers v. r Tew v. Earl of Winterton, Earl Ferrers, For. 3. and An- 3 Bro. 489. and S. C. 1 Ves. derson v. Dwyer, 1 Sch. and Jun. 451. Knight and Maclein, Lefr. 301. 3 Bro. 490. Mackworth v. Tho- ra For.3. mas, 5 Ves. 331. Clarke v. n Morris v. Dillingham, 2 Lord Abingdon, 17 Ves. 100, TRUSTS. -)u\ special circumstances •; and so, where there is a Bond and Judgment assigned, Interest is calcu- lated to the date of the Report, but not so as to exceed the penalty*. Where, however, there was a Bond, and also a Mortgage by way of ad- ditional Security, if the Creditor resorts only to the Bond, he will not be allowed Interest, beyond the amount of the penalty of the Bond"; but if he claims in respect of his Mortgage, he is entitled to his Debt and whatever Interest may have ac- crued v . Interest is not allowed on the arrears of an annuity secured by Bond, though it was given in bar of Dower w . Interest is allowed on a written agreement to pay by instalments x , and also on all debts that in their nature carry Interest, as notes payable at a day certain^ or on demand, and demand made y ; but it is not allowed upon notes payable at a day uncertain, or upon shop debts'; but the Court in the administration of assets follows the Law ; and if Interest would be given at Law in the shape of damages, the party claiming against the assets in Equity, is allowed the sum which he would have recovered at Law*. •See Clarke ▼. Seton, G Vts. x Parker v. Hutchinson, 3 411. Ves. 133. 1 Sharpe v. Earl Scarbo- y Upton v. Lord Ferrers, 5 rough, 3 Ves. 557. Ves. 801; and see Lowndes v. u Clarke v. Lord Abingdon, Collins, 17 Ves. '27. 17 Ves. 106. Parket v. Hutchinson, 3 Mb. Ves. 135. ■ Tew v. Lord Winterton, * SeeDornford v. Dornfoid, 1 Ves. 451. S. C. 3 Bro. C. C. 12 Ves. 129. 489, 492 EQUITY JURISDICTION. Interest is not allowed on a Judgment, on assets, quando acrid erint b . Where a person, seized of three or four Es- tates, devises one Estate for the particular pur* pose of paying his debts, that is applied, and not the other Estates, though they descend ; but if after the devise by a Testator, of the whole of his Estate at the time of the devise, subject to a general charge (not to a particular charge, which would make a difference) for the Payment of debts, and he becomes possessed by devise, or pur- chase of another Estate, which descends, such Es- tate is applicable to the payment of debts, before the Estate so generally charged with the payment of the debts ; for when a general charge is made, applicable to the whole Estate of the Testator at the time, no intention appears that the Estate is so charged with a view to exonerate future property ; but where a Testator charges part of his Estate, leaving other part to descend, his inclination, to burthen a part, in exoneration of the rest, is manifest 1 . Where Lands devised are ordered to be sold for the payment of Debts, and the Devisee is an Infant. the Estate cannot be sold, until he comes of age. In the mean time, all the Court does, is to de- clare, that the simple contract Creditors are enti- tled to stand in the place of the specialty Credi- tors, with liberty to apply when the Infant b Deschamps v. Vanneck, a Davis v. Toppe, 1 Bro, 2Ves.716. C.C. 528. TRUSTS. 403 comes of age to have the Estate sold to pay their debts 1 '. It was formerly held that where Trustees in a devise for the payment of debts, were also made Executors, the Assets were le^al. It was so considered at Law c , and the Decisions in Equity followed the Law d ; except where the Devise of the Lands was to the Executor, and his heirs, in trust to sell, &c. in which case, the Court decided, the Lands would be equita- ble Assets ; because, as the Lands must go in a course of descent, he must take as Trustee, and not as Executor 6 . But Lord Camden, in a Case, in which all the doctrine was sifted, after quoting the case of Lewin v. Oakley f , observed, " And now, I think the old Rule is overthrown, and that wherever the Land itself is devised to the same persons who are Executors, the Assets will be equitable. And I hold the case to be the same whenever the Land is devised to them, or to them and their Heirs, for in both cases they are equitable Trustees *. The descent is broke, and the specialty Creditors have lost their Fund. b Powel v. Robins, 7 Ves. d Graves and Powel, 2 Vern. 211. and see Charles v. An- 248. Anon. 2 Vein. 405. see drews, 2 Mod. 151, & Cooke Clutterbuck v. Smith, Prec. v. Parsons, 2 Vern. 429. Ch. 127. Blatch v. Wilder, c Edwards and Graves, Hob. 1 Atk. 410. 2G5. Alexander v. Lady Gresh- e Anonymous, 2 Vern. 133. am, I Lev. 224. Dethick v. ' 2 Atkyns, 50. Carravan, 1 Lev. 224. 1 Roll. g See to same effect, Buckley Abr. 020. G. 6. Bosvell v. Co- v. Williams, I Dick. 3S7. jant, Hard. 405, 4 said in Holmes and I Ves. 80. Goghtfl, 7 Ves. 489. and see n lb. also Hinton v. Toye, 1 Atk. ° Lord Cormvallis's Case, 2 405. and Beintorj v. Ward, 2 Freem. 279. ted vid. Bullock Atk. 172. Pack v. Bathurst, v. Flugate, 1 Ves. and Bea. 3 Atk. 268, -178. c George v. Milbanke, 9 Ves. p Ante, p. 45. 190. 4<)f> EQUITt JURISDICTION.. Instrument, executed in a particular manner, and afterwards exercises his power, the Money will, as between his Creditors and Appointees, be Assets". Where Lands are devised generally for the pay- ment of Debts, the Vendee of the Estate need not see to the application of the Purchase Money, but the Trustee only ; but if it be for the payment of any particular debts, or for the payment of debts in a Schedule annexed, there the Vendee is ob- liged to see to the application of it v ; and that although the Estate be sold under a decree w , or in pursuance of an Act of Parliament x . If a devise be of Lands for the payment of Le- gacies, the Vendee must see to the discharge of the Legacies y ; but if the devise of the Lands be for the payment of Debts generally, and of Legacies, the Purchaser is not bound to see the Debts or Legacies paid: if he were liable,in such case, to see the Legacies paid, that would make it neces- sary for him to see if the Debts were paid, as they must first be discharged \ According to several cases an Equity of Re- demption of freehold*, or leasehold^, Estates, is an Sugd. Vend, and Purch. and Benyon and Collins, ButT. 144. Thomson v. Towne, 2 n. (1.) to Co. Litt. 290 b . S. 12. Vern. 319, 416. and Rogers v. Skillicorne, T Lex Pretoria MS. Tomp- Ambl. 188. kins v. Tompkins, Gilb. Eq. a Solley v. Cower, 2 Vern. Rep. 90. Williamson v. Clerk, 61. Ryall v. Kyall, 1 Atk. 60. 3 Bro. C. C. 96. Hardwicke v. Plunket v. Penson, 2 Atk, Mynd, 1 Anstr. 109. 294. see Plucknet v. Kirk, w Lloyd v. Baldwin, 1 Ves. 1 Vern. 411. where point left 173. undetermined. * Cotterell v. Hampson, 2 b Hartwell against Chitters, Vern. 413. Ambl. 308. Scott v. Scholey, » Lex Pretoria, MS. 8 East. 465. Sir Charles Cox*s z See Sugd. Vend, and Purch. case, P. Wins. 341. overruling 413. who cites J ebb v. Abbott, equitable Interest, and is equitable Assets ; but other Cases have determined that Chattels whether real or personal, mortgaged or pledged by the Testator, and redeemed by the Executor, shall be Asset-, at law, in the hands of the Executor, tor so much as th y are worth beyond the sum paid for their Redemption, though recoverable only in Equity . Where a % Man takes an Assignment of a Term in a Trustee's name, and the Inheritance in his own name, so that by construction in Equity, the Term is attendant upon the Inheritance, such term in Equity is Assets for the payment of debts, as well as a Term taken in his own name, is Assets at Law; but with this difference, that the Heir has the benefit of the Surplus of the Trust of a Term, and not the Executor, after debts paid; but if a term be expressly declared by Deed, to be attendant on the Inheritance, there such a Term will not be considered as Assets in Equity 1 . It is a rule, (and as we have seen b , not confined to cases merely of Assets, J that if a Party has two funds liable to his claim, a person having an Interest in one only, has a right in Equity, to compel the former to resort to the other, if that is necessary for the satisfaction of both'. This Rule has given rise to what in the admi- overruling doubts in Cole v. 'JChaptiian v. Bond, 1 Vera. Warden, 1 . ■ . and in 188. S. P. 2 Ch. Cas. 152. Lyster v. Bolland, 3 Bro. 481. h Ante, |>. 202.etc. £. C. 1 Ves. Jan. 431. c Attn:! .1 v. Tyn- 2 See :j P. Wms. 344. n. 2. dall, Ambl.*391, Aldrich v. and the cases there ched. Cooper, 8 \ es. 389. Trimmer v. Bayne, 9 Ves. -J0 ( J. VOL. I. K K 498 EQUITY JURISDICTION. nistration of Assets, is termed, Marshalling of Assets. Marshalling' of Assets takes place in favor of simple contract Creditors and of Legatees, De- visees , and Heirs; and in a few other cases, but not in favour of next of kin d ; and the Rules of the Court, in this respect, have been considered to be of great consequence to the Practice of the Court % and as useful a power as any the Court possesses ; for where there are Creditors, and Legacies to Children, for their Portions, if the Law was to have its full force, (though the reason of it was good, when it was originally framed) and the Creditors were to exhaust the personal Estate, it would be the ruin of Families f . The Court, therefore, leans and endeavours to bring Creditors within the Rule, as to the Marshalling of Assets p . If a Bill is filed for the Administration of As- sets, and the Court sees at any Period of the Suit, that Creditors by simple Contract, will be de- prived of their debts, by specialty Creditors going against their Fund, the Court will of itself, though the Bill is not framed, with that view, direct the Assets to be marshalled. If, for instance, it ap- pear for the first time by the Master's Report, that a specialty Creditor was paid out of the Per- • Chitty against Parker and l See Hanby against Roberts, others, 4 Bro. C. C. 411. Ambl. 128. d 1 P. Wnis. G80. « Lacon v. Mertins, 1 Ves* • Galton v. Hancock, 2 Atk. 312. 438: I TRUSTS. 4 f'9 sonal Estate, it is not necessary to file another Bill, for the purpose of marshalling- the Assets 1 '. And first, with respect to simple contract Cre- ditors. Where Debts by Specialty, which are a lien at Law on the Real Estate, are discharged out of the personal Assets by Executors, in ease of the Lands, the Creditors by simple Contract, are en- titled to stand pro tanlo, in the place of the Cre- ditors by Specialty'; and to have their debts satisfied out of the Lands, and the Court will decree them to be sold for that purpose 14 . If a Mortgagee of Freehold and Copyhold Es- tates, who is also a Specialty Creditor, exhausts the Personal Assets, the simple contract Creditors are entitled to stand in his place pro tanto, against both the Freehold and Copyhold Estates 1 . Upon the same Principle, the benefit of the Vendor's Lien on the Estate, for the purchase Money, has been marshalled '". 11 Gibbs v. Ougier, 12 Ves. G Ves. 475. Macreth v. Sy- 41 G. monds, 1"> Ves. 338. S. C. MS. 1 Fenhoulet v. Passavant, where Lord Eldoninclinesto the ! Dick. 253. Exparte Hodgson, same reasonable doctrine. Po- 2 Dick. 737. lexfenand Moore, 3 Atk. 277. K See Charles v. Andrews, a seeming Authority in favor 2 Mod. 151, 3. of Marshalling, appears not to 1 Aldrieh v. Cooper, 8 Ves. be so when corrected by the 382. '1 hf case of Kobinsen v. Register's Book, see Sugd. Tonge, respecting Copyholds Vendor and Purch. 4 1"' 6, mentioned, L P. Wins. (.NO. in see also Blackburn and Greg- note, was in this case overruled, don, 1 Bro. 424. Certainly, Kobinson v. Gee, 1 VeS. 252. Charles and Andrews, 'J and see Waring and Ward, J51, 3. and Coppinv. Coppin, 7 Ves. 830. Bell v. Phyne, 7 2 P. Wins. 291. S. C. Select Ves. 4(H). Cas. in Ch. 28. are authorities ra Trimmer v. Bayne, 9 Ves. against the Marshalling. 209 j and see Austin v, Hatsey, K K 2 500 EQUITY JURISDICTION". If there be a Debt owing to the King, the Court will direct the King's debt to be satisfied out of the Real Estate, that the other Creditors maybe let in to have a satisfaction of their debts out of the Personal Assets n . With respect to Legatees, it is, with some ex- ceptions, a Rule, that they have a right to marshal as against Estates descended ; but not as against Es- tates devised, unless the Lands devised be expressly subjected to Debts °, or are liable to a Mortgage?. If one, seized in fee, owes debts by Bond, and devises his Land to his Heir in Tail, and gives several Legacies, and afterwards dies leaving the Heir his Executor, and the Heir with the per- sonal Estate pays off the Bond debts, by which means there are not Assets to pay the Legacies, the Legatees are without remedy, the Land being devised in Tail to the Heir. It had been other- wise if such Land descended to such Heir in Fee' 1 . It was held, in one case, that the Assets could not be marshalled for the payment of Legacies r ; but this doctrine has been disapproved". Though Assets, it seems, will notbe marshalled in favor of B Sagittary v. Hyde, I Vern. p Lutkins v. Leigh, For. 54. 455. S. C. MS. ° Heme v. Meyriek, IP. r Keeling- v. Browne, 5Ves. Wins. 201. 362; and see the reasoning in 4 See Moyd v. Williams, Kightly v. Kightly, 2 Ves. 2 Atk. 110. Clifton v. Burt, jun. 328. 1 P. Wms. 679. Hanby against " See Williams v. Chitty, 3 Roberts, Ambl. 129. Hasle- Ves. 551. wood and Pope, 3 P. Wms. 321. TRUSTS. 501 an Executor or a Residuary Legatee ', it is a Rule, that if the Testator give by bis Will, a Lease or a Horse, or any specific Legacy, and [eaves a debt by Mortgage or Bond in which the Heir is bound, the Heir cannot compel the specific Legatee to part with his Legacy in rase of the Real Estate; and though the Creditor may subject this specific 1 icy to his debtj yet the specific Leg it e will in Equity stand in his place % and the same Hide applies to pecuniar// L< gatees w . If, for instance, a Testator owes a debt for which his real and leasehold Estates are Mort- gaged, Equity will charge the debt, on the real Estate in order to enlarge the Fund for the pay- ment of the Legacies as well as debts x . Where one by Will gave several Legacies, some charged on the real Estate, and others not, it was held, that if the personal Estate proved insufficient to pay all the Legacies, the Legacies charged on the real Estate should be paid out of the same ; or if they had been paid out ot* the personal Es- tate, the other Legatees, as to so much, should stand in their place upon the Land y . And where a Testator gave some Legacies by Will, and others bv a Codicil, and the Lands were charged with the Legacies in the Will, but not with the Legacies in the Codicil, and the Personal Estate was not sufficient to pay all tin* Legacies, 1 See 1 Ves. 252. x Davis v. Gardiner, 2 P, v Tipping v. Tipping, 1 P. "Wins. 190. Wms. 729; and see Burton v. ■ Bligh v. Earl Darnjey, Pierpont, 2 P. Wms. 81. 2 P. Wms. • ■ See ib. and sec Davis v. Gardiner, 2 P. Wins. 190, 502 EQUITY JURISDICTION. the Assets were marshalled, and the Legatees in the Will were ordered to be paid out of the real Estate, and if that was deficient, they were, as to the surplus, to come in average with the Legatees in the Codicil, to be paid out of the Personal Estate \ The Court will not marshal Assets to pay cha- rity Legacies 1 , for by that means the Statute of Mortmain b would be eluded ; but where there was a bequest of the remainder of the Testator's effects, Annuities, Mortgages, &c. to a charity, it was held, the Devise of the Mortgages was void, but being part of the enumerated residue, the Court ordered them to be applied first inpay- ment of debts, before any other part of the per- sonal Estate, to have a larger fund for the Cha- rity d . This being said to be, not marshalling Assets, but arranging the different species of personal Estate 6 ! If a Legacy be charged on the real and personal Estate of the Testator, the personal Estate must be first applied ; but if the Legacy be expressly given out of the real Estate, such Estate must * Bonner v. Bonner, 13Ves. Arnold v. Chapman, lVes. 110. 385 ; and see Masters v, Mas- Attorney General v. Greaves, ters, 1 P. Wins. 422. see a Ambl. 158. and Attorney case of* this kind, Hanby and General and Tomkyns, AmbL Koberts, Ambl. 127. 217. Attorney General v. Lord * Foster against Blagden, Mountnorris, 1 Dirk. 379. Ambl. 704. Hilly ard v. Taylor, b 9 Geo. 2. c. 36. Ambl. 714. Mogg v. Hodges, e Attorney General against 2 Ves. 52. Makeham v. Hooper, Tyndall, Ambl. 015. 4 Bro. C. C. 153. Waller d Attorney General against against Childs, Ambl. 524 ; Caldwell, Ambl. 036. and see Attorney General v. e lb. Reporter's note, p. 630. Tyndal, cited lb. p. 526. and but see contra 3 Bro. C. C reported lb. p. 615. Sed vid. 373. 4 Bro. C. C. 156. TRUSTS. 503 bear the burthen of it, and the personal is not applicable in aid f . If one devises his Ileal Estate, and gives pecu- niary or specific Legacies not charged on that real Estate, and dies, leaving specialty debts, and the specialty Creditors exhaust the Personal Estate, the Legatees are not allowed to stand in their place and come upon the Realty; because it is supposed as much to be the intention of the Testator that the Devisee should have the Real Estate, as that the Legatees should be paid s . But Legatees are entitled to stand in the place of Mortgagees 11 . By the same Rule, if one has only personal Estate, and gives specific as well as general Legacies, if the Creditors exhaust the general Assets, yet the general Legatees shall not stand in their place and come upon the specific Legacies'. But if one having Land and personal Estate makes his Will, being indebted by specialty, and he gives specific Legacies, and then gives the rest and residue of his real and personal Estate; if the Creditors exhaust the Personalty, the Legatees may stand in their place, and come upon the resi- duary Legatee, because he has only the rest and residue^. 1 Amesbury v. Brown, 1 h Ambl. 173. Ves.477. 'Ambl. 128; and see For- g Haslewood v. Tope, 3 P. rester v. Leigh, Ambl. 173. Wins. 32:}. Hanbv against k Hanby against Roberts, Roberts, Ambl. 128. S. C Ambl. 128, 9. S. C. 1 Dick; 1 Dick. 104. under Dame of 104. under name of Ilamley Ilamley and Fisher, Forester v. Fisher, against Lord Leiirh, Ambl. 173, 50-4 EQUITY JURISDICTION. Where a Legacy was given to A. charged upon the Ileal and personal Estate, and other Legacies were given, but not charged upon the real Estate, and A. exhausted the personal Estate, the othey Legatees were allowed to take satisfaction out of the real Estate devised 1 . The Rule of the Court as to marshalling As- sets, applies only as between the real and personal Assets of a person deceased; for the Court has no right to marshal the Assets of a person alive, they not being subject to such a Jurisdiction of Equity till his death. Nor can the Court extend this relief to Creditors further than the nature of the Contract will support it ; therefore, it must be a specialty Creditor of the person, whose Assets are in question, such as might have a remedy against both the real and personal Estate, or either, of the Debtor deceased : it not being every specialty Creditor, in whose place the simple contract Credi- tors can come to afreet the real Assets, viz. where the specialty Creditor himself cannot affect the Assets, as where the Heirs are not bound m . A Recital of a debt in a deed, does not make- it a specialty debt n . Where the Assets are partly legal, and partly equitable, though Equity cannot take away the legal preference on legal Assets, yet if one Cre- ditor has been partly paid out of such legal As- sets, when satisfaction comes to be made out of Equitable Assets, the Court will postpone hir»» 1 lb. 127. etc. 1 1 Vcs. 313, m Lacon v. Martin. 1 Ves. 312. TRUSTS. till there is an equality in satisfaction to all the other Creditors out of the equitable Assets, pro* portionable to so much as the legal Creditor lias been satisfied outofthe legal Asset.-,". A Devisee of a Mortgaged Estate has, on a de- ficiency of the personal Estate, a right to have the devised Estate, exonerated out of Ileal As- sets, descended on the Heir . Formerly, a Devisee could not have aid of the personal Estate; but afterwards '', it was held, that a particular devisee of such Estate, should have such aid' 1 . It seems, that if the Testator devises his Estate to his Heir at Law, though the devise is void, as to the purpose of making the Heir take otherwise than by descent, yet it is held to shew the Tes- tator's Intent that the Heir should have this Land, and therefore the Land must be applied only as other devised Land would r . If the Heir or Devisee of the Real Estate, (for the Rule applies to an Hares /actus, as well as tc* an Hares natus*,) is sued by a Bond Creditor, he may stand in the place of that Creditor to be re- imbursed outofthe Personal'. But the Equity to have Real Estate exonerated by Personal, subsists only between the Heir or Devisee and the Residuary Legatee, and not n Morris v. Bunk of Eng- Leigh v. Lutkins, For. 53. S.C. land, For. 220. MS. ° Galton \. Hancock, 2 A tk. r See note A to Chaplin v. 204, 430. Chaplin, H P. Wins. 36& p Cornish v. Mew, 'Cha. Ca, ■ Pockley v. Pockley, 1 271. Pockley v. Pockley, 1 Yen.. 37. Vein. 3<>. ' Mogg v. Hodges, 2 Yes;. q Forrester against Lord o3. Leigh, Ambl. 173, Sed Yid, 50(5 EQUITY JURISDICTION", against specific or general Legatees, much less Creditors v . If one mortgages his Fee-simple Estate, and devises his Leasehold to A. and his Fee-simple to B. and dies leaving no personal Estate, the De- visee must take it cum onere, and shall not charge the Leasehold Estate specifically devised with the Mortgage w . Bona Paraphernalia (unless purchased out of Wife's separate Estate",) are liable for debts in favor of Creditors y ; but not in favor of an Heir. They are preferred to Legatees z . A Widow, therefore, in respect of her Paraphernalia, has a claim to marshal the Assets as against real Estates descended*, but not against real Assets devised*. if, for want of Assets, bona paraphernalia are applied in payment of the debts of the Husband, and contingent Assets afterwards fall in, they are not applicable to pay the produce of the bona paraphernalia, as they would of a specific legacy applied in payment of debts c . Questions as to what is an Advancement fre- quently arise in the distribution of Assets. v Hamilton v. Worley, 2 Ves> jan. 65. Hawes v. Warner, 2 Vein. 477. S. C. 3 Ch. Rep. 206. w Oneal v. Mead, 1 P. Wms. 693. and see Lutkins v. Leigh, Forrester 53. S. C. MS. * Wilson v. Pack, Prec. Ch. 295. y Ridout v. Earl of Ply- mouth, 2 Atk. 104. See Lady Tirrell's Case, 2 Eq. Abr. 155. Burton v. Pierpont, 2 P. Wms. 79. z Tipping v. Tipping, 1 Peer Wms. 730. Snelson v. Corbet, 3 Atk. 369. a Probe rt v. Morgan, 1 Atk. 441. Snelson v.Corbett, 3 Atk. 369. Sed vid. Incledon v. Northcote, 3 Atk. 438. b See Probert v. Clifford, mentioned in note 1 to 2 P. Wms. 544. S. C. Ambl. 6. c Burton v. Pierpoint, 2 P.. Wms. 79. trusts. 507 By the Statute (22 and 23 Car. 2. c. 10.) it is provided, that no child of the intestate, except his Heir at Law, on whom he settled, in his life time, any Estate in Lauds, or pecuniary portion equal to the distributive shares of the other chil- dren, shall participate with them of the Surplus ; but if the Estate so given him by way of ad- vancement, be not equivalent to their Shares, then that such part of the Surplus, as will make it so, shall be allotted to him. Questions of Advancement, whether they arise on the Statute of Distribution, or the custom of London, have been frequently said to receive the same determination 3 ; and, certainly, the Statute was in a great degree founded upon the custom b . As the custom does not affect a Widow's Estate, or gifts made by her, so neither does the Statute affect her. If the Mother, therefore, being a Widow, advances a child and dies intestate, the child advanced does not bring what he received from the Mother into Hotchpot . The Statute of Distributions was made to put an end to the long contest which had been, be- twixt the temporal and spiritual Courts' 1 ; for when the spiritual Court ordered any distribu- tion, or Bond to be given by the administrator for that purpose, the temporal Courts sent a * Elliot t. Collier, 1 Ves. 17. a See an account of thi* Edwards v. Freeman, 2 P. dispute in Palmer v. Elliot, W.449. Holt v. Frederick, 2 3 Mod. ?>8. Carter v. Crawley, P. Wins. 358. Raym. 49G. c Holt v. Frederick, 2 P. Wms. 356, £08 EQUITY JURISDICTION". Prohibition, being of opinion, that the admini- strator had a right to all, and that the spiritual Court could not break into that right . The Statute therefore was passed, and in favor of the practice of the spiritual Court, which pro- ceeded to order distribution as often as the Common Law Courts did not prohibit them, and the Act intended to make the Children's provi- sion equal, which was agreeable to the civil Law, where goods moveable and immoveable, (i.e. Lands) are considered, as the same, though our Law would never let the Civil Law meddle with Lands f . The intention of making the provision of the Children equal, runs throughout the whole Act; first, it gives the two-thirds.of the personal Estate (the mother being allowed her third) equally among all the Children. But then the act takes it into consideration, that there may be some of the Children who have received a portion or advancement before, but not so much as to make up their full share ; in that case, such child so ad- vanced but in part, is allowed so much more out of the Intestate's personal Estate, as will suffice to make his share equal to that of the other Chil- dren. The Statute takes nothing away that has been given to any of the Children, however un- equal that may have been. How much soever that may exceed the remainder of the personal •See Hughes anr] Hughes, Wins. 441,2. 440. and see Cart. 120. 1 Lev. 233. Humphrey v. Bullen, 1 Atk, 1 Edwanls v. Freeman, 2 P. 459. TRUSTS. 509 Estate left by the Intestate at his death, the ( 'InM may, if he pleases, keep it. all : if he is not con- tented, but would have more, tl i n he must bring into Hotchpot what he has before this manifestly seems to be tin- intention of the Act, grounded upon the most just rule of Equity, equality*. The Act docs what a good and just Parent ought for all his Children. It has] called, a Parliamentary Will k . A provision for a Child by Will, (for a C may happen, that as to part of tin- personal Es- tate, the Testator may die intestate) is not an Advancement to be brought into Hotchpot : and by the same Rule, Land given by Will to -a. younger Child, is not to be brought into Hotch- pot. Any Land provision to the Heir at Law, of the intestate, however given, is privileged by the Sta- tute of Distribution, and not to be brought into Hotchpot '. Any Land of Inheritance settled by the Freeman upon his Children, or Money given to be laid out in Land k , is not considered as an advancement either in part, or in the whole, within the Custom of London, for the custom affects only theocr- sonal Lslatc of the Freeman 1 ; but if Lands of g Edwards and Freeman, 2 ' 2 P. Wms. 27 1 ; and P. Wms. 443. Iliune v. I 3 Atk. "lb. 439, 443, 455 'Edwards and Freeman, 2 1 Vem. 181. and Stanl P. Wms. 441. Pla k Annnnd v. Ilonevwood, 1 Vem. 34b. 510 EQUITY JURISDICTION". Inheritance are given to a Child by the Freeman, in bar of the orphanage part, and accepted as such, it will be binding, or at least the Child cannot have both m . There are a great variety of Provisions which may be made by Parents for Children ; and it could not be expected the Statute of Distribu- tion should enumerate all of them. A contingent Provision, where the contingency has happened, is a Provision, and is within the Act ; and where- ever such Provisions are to take effect in a reason- able time, they are considered within the Act. A child may be provided for by Land, Freehold or Copyhold, or by a charge upon either, or by Money, Goods or Stock in Companies. Some Pro- visions may be payable to the Child when of age, or upon Marriage; and these contingencies, framed in an infinite variety of ways, as the several cir- cumstances of the parties may require, rendered it impossible for the Act to mention all of them, and therefore it was proper for the Legislature to make use of general Words as they have done n . A Provision made for a Child either by volun- tary Settlement, or for a good consideration, is an advancement pro tanto , A rent out of Lands settled upon a younger Child is an advancement, pro tanto p . So, an Annuity given by the Father to commence aftes m Cox v. Belitha, 2 P. Wms. • lb. p. 444, 274. p lb. 440. D Edwards v. Freeman, 2 P„ Wms. 440. TIVUSTS. 611 his death, is fin advancement pro tanlo ; and hy the same reason a reversion settled on a Child, or a portion, though payable infuturoia an a EQUITY JURISDICTION. Money to be brought into hotchpot by an Or- phan, will be brought into the orphanage part only x . By the custom of York, a distribution takes place in cases of intestacy, similar in most re- spects to distributions under the custom of Lon- don, but is different in some points, as in what regards the Widow and Children of the intestate. The widow is entitled not only to her apparel and the furniture of her chamber, but also to her paraphernalia y ; and with respect to the Children, the orphanage part vests immediately on the death of the Intestate 2 . By the custom of York, the Heir who inherits any Land, either in Fee or in Tail 1 , or even in reversion only b , is divested of all claim to a filial portion. If any question arise in the administra- tion of Assets respecting the custom of the City of York, an Issue will be directed to be tried at Law c . In respect to Wales, the doctrine of thenars rationabilis extends to Intestate's Effects within that principality d . The personal Property of an intestate, wherever situated, must be distributed by the Law of the x Beck ford v. Beckford, 1 a 4Burn Eccl. Law 31 9. Tol- Vern. 340. ler Law of Executors 319.' y Swinb. p. 6. s. 9. Toller's " 4 Burn Eccl. Law 319. Law of Executors, 318. c Constable v. Constable, 2 * 2 Bl. Com. 519. 4 Burn. Vern. 375. Eccl. Law, 398. Toller's Law d Toller's Law of Executor* of Executors, 319. 320. 7 and 8 Wil. 3. c. 38. TRUSTS. j 17 country where his domicil was'.; which is prima, facie the place of his residence: but that may be rebutted, or supported by circumstances 1 *. It lias been more than once observed, that the Statute, of Distributions 1 , drawn, it is said, by Sir Waiter Walker, a famous Civilian a ,) and tha Statute of Janus tin Second' '', are very incorrectly penned f ; but the construction of them is settled by decisions. All questions upon the Statute of Distributions as to computing the degrees of proximity of blood, arc decided by the Rules of the Civil Law g . By the Statute of James the Second, if after the death of the Father any of his children die intes- tate, without Wife or Children, every Brother and Sister and their Representatives are entitled to an equal share with the Mother 1 '. By the Common Law, no Person had a right to administer, but it was in the breast of the ordi- nary to grant it to whom he pleased. Then came the 21 Hen. 8. which gave the administration to the next of kin ; and if there were persons of equal kin, which ever took out administration was entitled to the surplus ; but. this injustice 1 Pipon v. Pipon, Ambl. 25. f Stanley v. Stanley, 1 Atk. urn v. (elf, Amid. 415. 457; and see Edwards and "lorne v. Wutkins, 2 V«. 35. Freeman. S P. Win-. 114. immerville v. Sommerville, ■ Lloyd v. Tench, 2 Ves. 214; Burn Th( Somi 5 Ves. 700. and we Wentney \. Petty, b Bempde v. Johnstone, 3 Pr.r. (h. WJ. Ves. I<)s. " krlvuav v. Kelvwav, 2 P. c 22 and 2-'} Ch. 2. c 10. Wins. 34 I. S. C. Gilbert Rep. d Pett's case, 1 p. Wuis, 27. 1SU, 1U0. 1 Str. 71U. • 1 Jac. 2. c. 17. MS EQUITY JURISDICTION. was prevented by the Statute of Distributions, which obliges the Administrator to distribute'. . The Husband is entitled to administer to his Wife k . An Executor derives his Power from his Tes- tator ; the Administrator from the Ordinary l . If administration is granted to two, and one of them dies, the administration survives™. Though a Person entitled to a distributory share, dies within a year after the intestate, his Interest is considered as vested, and passes to his Executors or Administrators n : and this holds equally in lineal and collateral successions °; but the share does not in all events vest, for if there be a posthumous child, such child takes a share though not in esse at the Intestate's death p . Where there is only one person entitled to take the personal Estate, as next of kin, the Statute vests the right in that person, making him as a Legatee of the party deceased q . ' Humphrey v. Bullen, 1 Atk. 459. See as to the History of administration what is said in Hudson and Hudson, For. 128, 9. k lb ; and see Edwards and Freeman, 2 P. Wms. 441, etc. 1 Hudson v. Hudson, 1 Atk. 461. m Hudson v. Hudson, For. 127. Adams v. Buckland, 2 Vern. 514. " 1 Show. 25. 3 Mod. 58. lVerrj, 403. 2 Vern, 274. Carth. 52. Edwards v. Freeman, 2 P. Wms. 441. and vid. note D. to Davers v. Dewey, 3 P. Wms. 49. See also Hart and King in Exchequer, Trin. 6 Geo. 1. 1720. MS. Earl of Winchelsea v. Nor- cliffe, 1 Vern. 403. Wallis v. Hodson, 2 Atk. 116. Palmer v. Alicot, 3 Mod. Gudgeon v. Ramsden, 2 Vern. 274. p 2 P. Wms. 446. Wallis v. Hodgson, 2 Atk. 116. q 3 P. Wms. 49. note D. TRUSTS. sig The following points have been decided in re- spect to, the Statute of the 22 and 23 Car. II. c. 10. which as to the Estates of Femes Covert, was explained by the subsequent Statute ol* 29 Car. II. c. 3. s. 24. If there be Uncle or Aunt's Children, and Bro- ther or Sister's Grand-children, they take equally '. If there be a Grand-mother, Uncle or Aunt, the whole goes to the Grand-mother". Two Aunts, a Nephew and a Niece, take equally, per capita '. If there be an Uncle, and a deceased Uncle's Child, all goes to the Uncle". A Nephew by a Brother, and a Nephew by a half Sister, take equally, per capita*. A Nephew by a deceased Brother, and Ne- phews and Nieces by a deceased Sister, take equally, per capita™ . If there be only a Brother and a Grand-father, the Brother takes the whole 1 . If the Intestate dies, leaving a Brother's Grand- r Thomas v. Kctteriche, 1 Ves. 333. ■ Mcntiipy v. Petit, Prec. Ch. 593. Lloyd v. Tench, 2 Ves. 215. 1 Durant v. Prestwood, 1 Atk. 455. Llovd v. Tench, 2 Ves. 213. Page v. Cook, mentioned 2 Ves. '214. contra 1 Domat Civil I. aw 666. u Bowers v. Littlewood, 1 P. Wins. 593; and see Brecton v. Darkin, 2 V'ern. 108. Maw v. Harding, 2 Vera. 233. T Stanley v. Stanley, 1 Atk. 45G. Davers v. Dewes, 1 P. Wms. 55. Lloyd \. Tench, 215. Bowers v. Littlewood, 1 P. Wms. 595. w Stanley v. Stanley, 1 Atk. 456. Davers v. Dewes, 1 P, Wms. 50. Lloyd v. Tench, 2 Ves. 215. Bowers v. Little- wood, 1 P. Wms. 595. x Evelyn v. E?< lyn, 3 Atk. 762. S. C. Ambl. 191. 520 EQUITY JURISDICTION. son, and a Brother or Sister's Daughter, the Daughter takes the whole y . If a Bastard dies intestate, or if any other per- son having no Wife, Children, or kindred, dies in- testate, his effects devolve on the King, who usually makes a grant of them \ y Pitt's Case,l P. Wms. 25. " See 2 Black. Com. 505. Dougl. 542. END 01 THE FIRST VOLUME, W ii.nt, St. sepulchre s, Lundun uc soun AA 000 728 236 ^ rk II , ■ iii i