ilarfiljaU Squttg CCoUertton (Stft of IE. 31- iiaroljaU. Cffi. 1. 1034 CORNELL UNIVERSITY LIBRARY 924 084 260 573 Cornell University Library The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084260573 OUTLINES OF EQUITY,' A SEEIES OF ELEMENTARY LECTURES ON" EQUITY JURISDICTION, DELIVERED AT THE REQUEST OF THE INCORPORATED LAW SOCIETY • SUPPLEMEXTAEY LECTUEES OIT CERTAIN DOCTRINES OF EQUITY. FEEEMAN OLIVER HAYNES, OP LI^s'COLN'S IN'N", EARRISTER-AT-LA.AV FORMERLY FELLOW OF CAIUS COLLEGE, CAMBRIDGE. FOURTH EDITION. LONDON : WILLIAM MAXWELL & SON, 29, FLEET STREET, iLsSn JSnoftsellers anB Publisf)trs. HODGES, FOSTER & CO., AND E. PONSONBY, DUBLIN; THACKEE, SPINK & CO., CALCUTTA; CHARLES F. MAXWELL, MELBOURNE. 1874. LONDON : BEAOTTOY, AGNBW, & CO., Pi«M"'B, wn.Tr.naATts. THE KIGHT HONOUKABLE JOHN LORD EOMILLY Cooke V. Dealey, 420 Cooksou V. Cookson, 439, 441 ■Cooper V. Cooper, 322 V. PMbbs, 148 Couch V. Stratton, 381 'Coventry v. Chichester, 361 Cowles V. Gale, 156 -Cowper V. Cowper, 27 Crabtree v. Bramble, 440 Crawshay v. Thornton, 305 Croskey ». European, &c. , Shipping Company, 272 'Crump V. Lambert, 310 Curling v. May, 387 Cnrson v, African Company, 172 •Curtis V. Curtis, 159 Custance v. Bradshaw, 403 .Davies v. Ashford, 440 ». Thornycroft, 232 Dawson v. Dawson, 358, 360, 371 Dewar v. Maitland, 341 DiUon V. Coppin, 166 V. Parker, 323, 348 -Dinwiddle v. Bailey, 271 Dixon V. Enoch, 181 11. Fawcus, 305 Doe V, Louch, 131 Donaldson v. Beckett, 293 Douglas V. Douglas, 348 Downshire, Marquis of, v. Lady Sandys, 312 Dummer v. Pitcher, 333 Duncombe v. Qreenacre, 126 Dunkley v, Dunkley, 125 Dunn V. Coates, 188 Durham, Lord, v. Wharton, 358 Dursley v. Fitzhardinge Berkeley, 190 Dyer v. Dyer, 420 IEaden v. Firth, 300 Earlom v. Saunders, 391, 402 Ddwards v. Meyrick, 140 :Edyall v. Hunston, 285 EUbank, Lady v. Montolieu, 126 BUice V. Eoupell (No. 1), 199 (No. 2), 198, 199 Evans v. Louis, 1S6 Fairthornb v. Weston, 153 Farina v. Silverlock, 307 Fenton v. Hughes, 181 Fettiplace v. Gorges, 240 Fitzsimons v. Fitzsimons, 330 Flamank, JEx parte, 417 Fleshward v. Jackson, 221 Fletcher v. Ashbumer, 383, 434 Fluker v. Taylor, 270 Foley V. Hill, 266 Forbes v. Steven, 403 Ford V. Batley, 423 Fox V. Fox, 107 — V. Mackreth, 93 FoxweU V. Webster, 202 Frank v. Frank, 347 Franks v. BoUans, 428 Fraser v. Kershaw, 163 Frederick v. Aynscombe, 402 Freeman v. Lomas, 172 Gaffee's Settlement, 230 Gardner v. Marshall, 125 Garrard v. Tiick, 161 Gee V. Pritchard, 302 Gillies -v. Longlands, 402, 436 Glascott V. Copper Miners' Com- pany, 181 V. Lang, 288 Goldsmidu. Goldsmid, 381 Gomm V. Parrott, 161 Gore V. Knight, 224 Gorges v. Chancie, 221 Graham v, Londonderry, 221 V. Maxwell, 288 Greatley v. Noble, 237 .Greedy v. Lavender, 126 Green v. Farmer, 170 V. Grreen, 331 Gretton v. Haward, 327, 330, 345 Griffith V. Eicketts, 394 Griggs V. Gibson, 346 Guidot V. Guidot, 387 Gumey v. Gumey, 135 Hah v. Barrows, 305 i: HaU, 152 V. Hill, 368 Hance v. TruwHtt, 344 Harcouit v. Seymour, 438, 441 Harris v. Cotterell, 199, 211 0. Mott, 246 TABLE OP CASES. XV Harrop's Estate, Se, 418 Harvey ». Harvey, 227 Hatch v. Hatch, 140 Bawkes v. Hubback, 230 Hawkins, I'x parte, 417 V. Hawkins, 242 Haynes v. Haynes, 417 Hay ward v. Hayward, 61 Heard r. Stamford, 25 Heatley v. Thomas, 234 Hemings v. Pugh, 265 Henderson v. Eason, 162 Henry v. Great Northern Kallway Company, 36 Herschfield v. Clsurke, 185 Herz V. Union Bank of London, 310 Hewett i: "Webb, 186 Hewitt V. Wright, 396 Highway v. Banner, 340 Hill i;. Turner, 288 Hindson r. Weatherill, 140 Hitchen v. Birks, 177 Hoare v. Osborne, 247 HoUoway v. Radcliffe, 431 Holmes v. Holmes, 358 Honeyman v. Marryat, 96 Hooldbam v. Pottage, 306 Homcastle v. Charlesworth, 1G6 HorreU v 'Waldrap, 119 Howard v. Digby, 239 Hudson V. Grenfell, 84 Hulme V. Tenant, 234 Humphery i>. Richards, 241 Hunt V. Hewitt, 184 Huskisson v. Bridge, 106 Ikohbald v. Eobinson, 300, 311 Isenberg v. East India House Estate Company, 310 Iveson V. Moore, 308 Jaoksou v. Ogs, 267 Jefferys v. Boosey, 293 Jessele. Chaplin, 313 Jessopp V. Watson, 407 Johnson v. Gallagher, 238 V. Telford, 342 V. Wyatt, 310 Jones V. Geddes, 288 V, Gregory, 212 V. Harris, 228 V. Salter, 231 Jope V. Morshead, 166 Judd V. Pratt, 342 Kemble v. Fakren, 132 Kemp v. Pryor, 188 Kidger v. Worswiok, 84 Kincaid, Re, 129 Kingsf ord v. Great Western Railway Company, 185 Kirk V. Eddowes, 368 Kirkman v. Miles, 439 Kitchin v. Hawkins, 145 Laeone v. Falkland Islands Company, 87 Lansdowne v. Lansdowne, 147 Law V. London Indisputable Com- pany, 84 Lawes r. Bennet, 399 Leaf V. Coles, 152 Leather Cloth Company v. American Leather Cloth Company, 304 Lechmere v. Brotheridge, 247 V. Earl of Carlisle, 377, 384 V. Lechmere,376,378,410 Lench v. Lench, 380 Lewis V. Lewis, 61 Lister v. Smith, 213 London Chartered Bank of Australia v. Lempriere, 235, 238 Love V. Balvcr, 288 Lovett V. Lovett, 212 Low V. Routledge, 299 Maobbyde v. Weekes, 156 Mackenzie r. Johnston, 264 Macklin v. Richardson, 303 Maciiab v. Whitbread, 106 Madrid Bank v. Bayley, 185 Makepeace i). Rogers, 264 Man V. Ricketts, 97 Marr v. Littlewood, 177 Massey v. Parker, 231 Mathews v. Mathews, 372 Matson v. Swift, 403 Matthewman, Re, 236 Mawman v. Tegg, 301 Maxwell v. Maxwell, 342 May V. Roper, 426 Maybery v. Brooking, 94 Mayhew v. Herrick, 163 McAndrew v. Basset, 305 McCarogher v. Whieldon, 36] X%T TABLE OF CASES. McFadzen ■;;. Mayor, &c., of Liver- pool, 185 McHemy v. Davies, 234 McEewen P. 0. v. Holt, 185 Mein«rtz]iagen v. Walters, 362 Messenger v. Clarke, 2il Metropolitan Board of Works v. Sant, 300 Mews V. Mews, 241 Micklethwait v. Micldethwait, 312 Milbum V. The London and Sontli Western Kailwaj;, Company, 286 Millingtoa v. Fox, 305 Minnehaha, The, 186 Mole V. Mansfield, 165 Molony v. Kennedy, 244 Money v. Jorden, 66 Monopolies, Case of, 291 Monteiiore v. Guedalla, 362 Moore v. Morris, 230 Moss V. Baldock, 92 Moxon D. Bright, 265 Murray v. Barlee, 235 V. Elliston, 303 Natior v. Wkiqht, 87 Neave v. Avery, 207, 315 Wewall V. Wilson, 298 Newcomeu v. Hassard, 245 Newlands v. Paynter, 227 Noel 11. Noel, 84 O'Connor v. Spaisht, 272 Oldham v. Hughes, 425 Ormond, Lady, v. Hntchinson, 253 OiTelli). Orrell, 343 Owens v. Dickenson, 235 Oxford, Earl of, v. Sir J. Tyrell, 190 Pabbtjhy v. Claeke, 336 Padwick v. Stanley, 266, 267 Palmer v. Newell, 368 Parker v. Dee, 261 V. Sowerhy, 335 Parkin v. Seddons, 177 V. Thorold, 157 Parsons ». Baker, 106 Pascoe V. Swan, 162 Peacock v. Monk, 246 Perry v. Turpin, 84 Peters v. Soame, 172 Phillips V. Jones, 153 Phillips V. Phillips, 269, 275 Picard v. Hine, 236 Piggott V. Parson, 118 Pinchin v, Simms, 372 Plimkett V. Lewis, 375 PoUey V. Seymour, 387 Pollock V. Lester, 310 Pope V. Curl, 302 Portarlington, Lord, v. Soiilbyr 288 Pott V. Clegg, 267 Powys V, Mansfield, 354 Preston v. Dania, 23 Pridgeon v, Pridgeon, 223 Proudley v. Fielder, 243 Pulteney v. Darlington, 410 Purdew v. Jackson, 127 Pusey V. Pusey, 166 Pybus V. Smith, 228 Pye, Ex parte, 351 Pym V. Lookyer, 363 QuEENSBEiiET, Duke of, V. Shee- beaee, 302 Eahclifje v. Pakktns, 336 Ranger v. Great Western Railway Company, 181 Eavenscroffc v. Jones, 358 Eeade v. Conquest, 302 5'. Lacy, 303 Eendall v. Kendall, 177 Eex V. Hare and Man, 44 Keynolds v. Godlee, 407 Kich V. Whitfield, 387 Richards i). Attorney-General of Jamaica, 415 Roberts v. Berry, 157 Robertson v. Loctie, 152 Robinson v. Wheelwright, 347 Rooke's Case, 28 Roskell V. Whitworth, 300, 311 Rumbold V. Rumbold, 340 Rushout V. Rushout, 347 Ryle V. Haggie, 262 SanKTI). GODLBIHH, 220 Saull V. Browne, 84 Saunders v. Smith, 295 Schroder v. Schroder, 344 Scott V. Corporation of Liveriiool, 271 TABLE OF CASES. XVU Scott V. Spashett, 126 Scudamore v. Scudamore, 385 Seeley v. Jagb, 424, 433 Seymore v. Tresilian, 221 Sharp V. St. Sauveur, 440 Shaxrod v. London and Nortli- Westem Railway Company, 9 Shattock V. Shattock, 235,238 Sheddon v. Groodrich, 338 Shepherd v. Chm-chill, 167 Shnttleworth v. Greaves, 383 Sisson ■». Giles, 428, 436 Slade V. Barlow, 300 Smith V. Attorney General, 192 V. Claxton, 407 V. Leveanx, 267 r. Tebbitt, 215 Soltau v. De Held, 308, 311 Somerset, Dnke of, v, Cookson, 155 Southampton Dock Company v. Southampton Harbour and Pier Board, 277 South-Eastem Kailway Company v. Brogden, 277 V. Martin, 274, 279 Speke V. Walrond, 165 Spencer v. London and Birmingham Eailway Company, 310 Spencer, Earl, v. Peek, 199 Stead V. Nelson, 245 V. Preece, 422 Stocken v. Stocken, 374 Streatfield v. Streatfield, 347 Stuart V. Kirkwall, 237 Sutton V. South-Eastem Railway Company, 313 Swann v. Fonnereau, 387 Sweetapple v. Bindon, 401 Tapf Vaie Railway Compahi V. Nixon, 273 Taylor v. Meads, 247 V. Plumer, 380 Thomas v. Thomas, 162 Thompson v. Burra, 335 V. Robson, 186 V. Stanhope, 302 Thompson's Trusts, Re, 403 Thynne, Lady Edward, v. Earl and Countess of GlengaU, 360 Tichbome v. Tiohbome, 177 Tinsley v. Lacy, 302 Tolson V. Collins, 374 Toole r. Young, 303 Townley v. Bedwell, 399 Townshend Peerage Case, 193 Trench v. Harrison, 380 Trevor v. Blucke, 57 Trimmer v. Bayne, 372 Triquet v. Thornton, 435 Tuer V. Turner, 430 Tugman v. Hopkins, 241 TuUett V. Ai-mstrong, 232 Underwood, Se, 398 Unity, (fcc. Association v. King, 173 Usticke V. Peters, 336 Vane v. Loed Baenabb, 312 Vaughan v. Buck, 125 V. Fitzgerald, 198 V. Tanderstegen, 239 Teret v. Duprez, 177 Walker v. Brewster, 297, 311 V. Kennedy, 87 Wall V. WaU, 346 Walsh V. Wason, 126 Walter v. Selfe, 310 Wainwright v. Hardisty, 245 Ward V. Arch, 392 Watkins v. Brent, 177 Watson V. Watson, 358 Weall V. Rice, 368 Welch V. Knott, 305 Wellesley v. Duke of Beaufort, 135 V. WeUesley, 135 Wells V. Maxwell, 157 Wharton, Re, 417, 424 Wheeler v. Home, 260 Wheldale v. Partridge, 396 Whistler v. Webster, 323 Whitaker v. Rush, 172 Whittle V. Henning, 127 Whitworth v. Whyddon, 177 Wilcocks V. Wiloocks, 375 Wilcox V. Wilcox, 375 Williams v. Archer, 153 Wintour v. Clifton, 336 Witham v. Waterhouse, 240 Withy V. Cottle, 156 Wodehouse v. Farebrother, 316 b XVlll TABLE OF CASES. Wood V. Sutcliffe, 310 Woodmeston v. Walker, 230, 231 Woodward v. Dowse, 161 Woolley V. Pole, 186 WortMngton v. Wiginton, 348 Wright V. Cliard, 238 Wright V. Lord Maidstone, Hi V. Rose, 397 V. Tatham, 198 Telveeton v. Newpoet, 118 York, Mayor of, v. Pilkington, 201 TABULAR ANALYSIS* EQUITY JURISDICTION. EQUITY. Classification of Heads of Jurisdiction (p. 29). I.— Exclusive Jurisdiction. II.— Coneuirent Jmisdiotion. Ill— Auxiliary Jurisdiction. I.— ExcLosivE Jurisdiction (p. 101). In respect of rights wholly ignored by the Common Law (p. 103). Trusts (p. 104). Administration (p. 115). In respect of persons under disability (p. 138). Protection of Infants. Property of Mortgages, Married Women Penalties, and (p. 121). Forfeitm-es I (l>- 130). Creditors' Legatees' Suits by 1. Separate 2. Equity to 3. Bight of Suits Suits parties Estate. Settlement Survivorship (p. 116). (p. 118). interested in (Lect. VII.). (p. 124). in Equitable residue Interests fti. 120). &). 126). This Table refers to the original series of Led tires only- TABULAE ANALYSIS OP EQUITY JUEISDICTION. II.— CONOUEEEira JnrasDiCTiON (p. 137). General Heads, Wliere hardly Eemedy at Bemedy at Law Set-off any remedy Law less (p. 167). 1, Fraud at Law. inappropriate. appro] iriate. (p. 188). 2. Accident (p. 142). 3. Mistake Partnership 1. Eecovcryof 1. Account (p. 150). Specific chattels (Lect. VIII.) (p. Hi) (p. 163). 2. Specific Performance (p. 165). 2. Dower (p. 157). 3. Partition (p. 161). III. — AtixiLiART Jurisdiction (p. 175). Strictly Auxiliary, or Ancillary. Auxiliary but also ControHmg. Discovery (P- 177). Perpetuation of Testimony (p. 189). Examination. de 1)6716 esse. (IJ. 197). Bills of Peace (p. 200). Bills to Establish Wills (p. 207). CONTENTS. LECTURE I. PAGE General nature and extent of Equity Jurisprudence. — Classitication of the various heads of Equity . 1 LECTUEE II. General History and Constitution of the Courts by ■WHICH Equity Jurisprudence is administered . 34 LECTURE III. General Outline of a Suit in Equity ... 67 LECTURE IV. Brief review of the principal heads of Equity Juris- prudence WHERE THE COURTS EXERCISE AN EXCLUSIVE Jurisdiction 101 LECTURE V. Brief review of the principal heads of Equity Juris- prudence WHERE THE CoURTS EXERCISE A CONCUR- RENT Jurisdiction 137 LECTURE VI. Brief review op the principal heads of Equity Juris- prudence WHERE THE COURTS EXERCISE AN AUXILIARY Jurisdiction 175 c XXU CONTENTS. LECTURE VII. PAGE- The "Wife's separate Estate considered as a par- ticular HEAD OF Exclusive Jurisdiction . . 217 LECTURE VIII. Account considered as a head op Concurrent Juris- diction .... 249 LECTURE IX. Injunction in cases where the Court exercises an Auxiliary Jurisdiction 281 SUPPLEMENTARY LECTURES ON CERTAIN EQUITY DOCTRINES. Election 318 Satisfaction 349 Conversion (1st Lecture) 383 Conversion (2nd Lecture J 411 APPENDICES. Appendix (Mr. Barber's statement) .... i — A. Appilgarth v. Serqeantson . . . Ixxi — B. HoiGGEs V. Harry Ixxii — C. DoDD V. Browing Ixxiv — D. Ordinance of 8 Edward I. . . . Ixxv — E. Observations on the relative Advan- tages AND Disadvantages of the Pro- cedures AT Law and in Equity . . id. — F. Form of Assignment of Dower by an Heir Lxxx OUTLINES OF EQUITY. LECTUEE I. Gextlemex, — The task which, at the invitation of the Council of the Incorporated Law Society, I have undertaken to perform, is one, the satisfactory and efficient fulfilment of which seems to me by no means easy. The limited extent of time afforded by twelve lectures of one hour each, and the vast range of the subject-matter, render condensation and selection alike necessary and difficult. Where condensation is my aim, I shall doubtless appear, sometimes needlessly elementary to the more advanced students amongst you, and sometimes obscure to those who are beginners merely ; and in deahng with particular heads of equity jurisdiction specially selected for consideration, the absence of a previous exposition of other heads closely comiected with them must, I fear, occasionally lead to imperfect results. Nor is the general question. How to lecture usefully f of easy solution (a). That lectures may be made an (a) The following observations on the subject of oral teaching have lost their significance now that the voice has assumed the literal form ; but they are retained because it would be difficult to expunge them without breaking the thread of the discourse ; and possibly the reader may find them not altogether uninteresting. LECTURE I. efficient auxiliary in legal training can hardly he doubted, if for no other reason, at least as constituting a separate and distinct mode of instruction. Indeed, if I were asked by any one amongst you the surest means of acquiring legal knowledge, I should answer : All are valuable ; neglect none ; vary your modes of study. Novelty arrests the attention; and attention iirmly riveted results in impressions firmly fixed. After reading text-books, which, however useful, commonly leave but faint remiaiscences, the full re- port of a single case, with aU its incidents, may fix itself, with the principle involved, indelibly on the memdry. So after theoretical study, in aU its varieties, the perusal of a particular set of papers in practice, and the actual handling of the matter, will, for the first at least, impress upon the worker's mind tenfold more strongly than any mere theoretical reading could do, the points of law actually involved and considered. AgSin, the first arguments and judgments heard in open court, the earliest consultations of counsel which may be attended, convey lessons not easily forgotten. Every avenue, in fact, to legal, as to other, knowledge possesses, ceteris paribus, in proportion to its novelty, a greater prospect of fixing in our treacherous memories those priaciples which so readUy elude us. It must be understood that I am here dealing only with the question of the bare acquisition of sound legal knowledge ; an object most important in itself, but one which, when attained, forms part only of the practical lawyer's education. In practice, far more than sound legal knowledge is required. The habit of rejecting LEOTUEE I. rapidly those facts which are immaterial, and retaining for further consideration those which are or may be important, is, perhaps, more necessary for the despatch of business than even sound theoretical knowledge it- self. In fact, theoretical Imowledge must be made the means and not the end, — the handmaid and not the mis- tress. Many of you will, doubtless, find at first, when you proceed to the active exercise of your duties — and amongst these not a few of the most diligent and of the best read — that the perusal of a set of papers, or the hearing of a particular statement, will immediately suggest various heads of legal difficulty. You will then, perhaps, resort prematurely to your books, sift the law thoroughly, and sitting down again, discover, to your mortification, some trifling fact which renders nugatory (so far at least as respects the matter in hand) your elaborate legal investigation. I conceive, indeed, that to a young practitioner, fairly read, no better advice could be given on commencing practice than this : — "Avoid, as a general rule, considering the law of the case until you have thoroughly mastered the facts." But I am digressing rather. I was attempting to show that, in the acquisition of legal knowledge, novelty of mode formed an important aid. And it is chiefly on this account that I think " lectures " valuable. For, as compared with other means of instruction, it is obvious that they labour under some degree of disadvantage. Socrates, in the "Phsedrus," is represented as inge- niously showing the imperfection of instruction con- veyed by books, as compared with the oral instruction of the ancient philosophers. B 2 4 LECTURE I. He says : — " Writing is something like painting. " The creatures of the latter art look very Uke living " beings ; but if you ask them a question, they preserve a " solemn silence. Written discourses do the same. You " would fancy, by what they say, that they had some " sense in them; but if you wish to learn, and therefore " mterrogate them, they have only their first answer to " all questions. And when the discourse is once written, " it passes from hand to hand among all sorts of persons, " those who understand it and those who cannot. It is " not able to tell its story to those only to whom it is " suitable ; and when it is unjustly criticised, it always " needs its author to assist it, for it cannot defend itself. ***** " There is another sort of discourse which is far better " and more potent than this. "Phcedr.—Wha.tisii? " Soc. — That which is written scientifically upon the " learner's mind. This is capable of defending itself, " and it can speak itself, or be sUent, as it sees fit. " PhcBclr. — ^You mean the real and living discourse " of the person who understands the subject, of which " discourse the written one may be called the picture. " Soc. — Precisely so." (a) It might have been retorted, though with less fairness then than now in the days of the printing-press, " Litera scripta manet." The written discourse remains and may be referred to from time to time as occasion may require ; while the oraUy taught pupil, after he has (a) For a later translation of high authority, see Jowett's " Dialogues of Plato," vol. i. p. 611. LECTURE I. 5 retired from the presence of Ms oral instructor, must first re-demand from his memory the precise words of his teacher, and then weigh their value. But, however this may be, it must be confessed that the modern lecturer can boast neither the advantage of that permanency which belongs to written instruction, nor the power of exposition and explanation so highly prized by the Athenian philosopher. The former advan- tage is denied to him by the very nature of his calling; the latter, in the case of public lectures at least, by the number of his audience. The question still remains, "What can be usefully accomplished by public lectures? I should answer; that the first principles of any science maj^ be intro- duced to the minds of the hearers more readily than by books merely; that general conceptions of the subject- matter in hand maj"" be conveyed (incomplete neces- sarily, because qualifications must be neglected, but) more vividly than could be gained from the introductory pages of a scientific work ; and that, by a somewhat bold generalization and gwasi-popular handling of the subject, the interest of the hearers may be awakened to search for themselves whether these things ^'e so. In my own case I shall be perfectly satisfied if, by hearing my lectm'es, gentlemen are induced to explore the mines of learning contained in Mr. Spence's work (a), and in the two other treatises mentioned at the foot of the prospectus (b). They will at once perceive how largely I have entered into the labours of those who (a) The Equitable Jurisdiction of the Court of Chancery. (b) Story's Equity Jurisprudence, and Lewin on Trusts. 6 LECTURE I. have gone before me ; but not, I can assure them, without labouring myself. Indeed, it is of the essence of legal study to take nothiag for granted — to trace out laboriously to their original som'ces the knowledge or the error of those who have gone before. He who would learn law must plod, must dig. Would that, while conscious of some capacity for digging and plodding myself, I felt equally sure of my power of lecturing after the manner which, so far as I can judge, is alone likely to be useful. Respecting the general plan of my lectures, I am not aware that I can add much to the information afforded by the prospectus already issued (a). In every system of jurisprudence we have, (1.) the system itself; (2.) the functionaries by whom it is administered ; and (3.) the procedure by which they administer it. Without some general information on each of these heads, it would obviously be impossible to pass to the more particular consideration of any one. This explains the selection of the subjects of my first three lectures. The next three are intended to present a somewhat more complete view of equity jurisprudence in general.^ The rest of the prospectus may be left to speak for itself. Well, then, the subject of my present lectm-e is the general nature and extent of equity jurisprudence, and the classification of the different heads of equity. And, first, what is equity, in the legal technical sense of the word ? Not, of course, the equity referred to in (a) See "Table of Contents,'' which, as to the first nine Lectures, was copied from the " Prospectus." LECTURE I. Sacred Writ, as " equity and everj' good path." That is not to be hoped for, nor can it be enforced in our present imperfect state. The man who, from vindictive motives, cuts off his son with a shilling, and leaves his property to strangers, abuses most grossly the rights conferred on him by the policy of our law, but does nothing that renders him accountable in equity. The man who, surrounded by every luxury, a millionnaire himself, should choose to allow to an aged father, for- merly affluent, but now destitute, a pittance, of say 15s. a week, would satisfy the positive enactments of the Poor Law, and be amenable to no court of equity. Equity, in the technical sense, is therefore at the utmost but a portion of equity or natural justice in the larger sense. There are many duties, many obligations (imperfect they are commonly called), which no civil- ised country attempts to enforce judicially. Between these and obligations which may be so enforced, there is a line of demarcation varying not very much in different countries. The non-enforceable portion of natural justice forms, therefore, no part of technical equity. The next question is. Does technical equity or equity jurisprudence represent the whole of that portion of equity which may be enforced? Not so. A large portion of this enforceable part of equity lies within the competency of our courts of law. Equity , t echni- cally sp eaking, is that portion of equity in the larger senga or natural justice , which , t hough of such^ a nature as to admit properly of its being judicially enforced, was omitted to be enforced by our common O LECTURE I. law courts — an omission which was supplied by the Court of Chancery. The distinction between equity in the technical sense and law, is truly matter of history and not matter of substance. The strongest argument in support of this assertion is that derived from the fact, that in our country alone (I except, of course, such of the American states as have inherited or adopted our equity system) are to be found the double jurisdictions in law and equity. The short sum of the matter is this, — that the Court of Chancery recognises certain rights and applies certaia remedies, which the courts of law might have equally recognised and applied, but did not. But why, I hear some of you ask, did the common law courts thus fall short in the performance of their judicial duties ? Here, too, the answer is matter of history. According to the common law, every species of civil wrong was supposed to fall within some par- ticular class, and for each class an appropriate writ existed, or was supposed to exist. The writ was (as you know it stiU is), in common law actions, the first step. Thus, if a man had suffered an injury, it was not competent to him to bring before the court of law the facts of the case, leaving it to the court to say whether the case was one deserving redress ; but he had first to determine within what class of wrong his case fell, and then apply for the appropriate writ. The evil effects of this system of procedure were mainly two. First. Even where the facts were such as to biiog the case of wrong within some one of the classes LECTUEE I. already recognised as remediable at common law, the injured suitor was exposed to the' risk of selecting an improper writ, and failing in his action on that account. This, indeed, was a fertile source of injustice in common law proceedings, even within the last few years ; in fact, until the Common Law Procedure Act of 1852, which enacted " that it should not be necessary to men- " tion any form of action in the writ of summons " (a). Thus, before the late Procedure Act, it often happened that a man sued in " debt " when he ought to have sued in " assumpsit," or in " trespass " when he ought to have selected " case." He incm-red, perhaps, great expense ; and although proving at the trial facts showing him to be entitled to a common law remedy, yet failed because he had selected the wrong form of action. Take as an illustration the case of Sharrod V. London and North-Western Railway Company (b). There the action was one against a railway company for running over some sheep with a railway engine. The sheep had strayed on to the railway through defect of fences ; and there can be little doubt, though the report does not expressly so state, that the fences were, in fact, fences which the company was bound to keep iii repair, and that the owner of the sheep had a sub- stantial right of action against the company. The plaintiff's legal advisers brought trespass. It was held, that trespass would not lie; that if the cattle had a right to be on the railway, the remedy was by an action on the case for causing the engine to be driven in such a way as to interfere with that right ; that if (a) 15 & 16 Vict. cap. 76, s. 3. (i) i KxcKeqiier E. 680. 10 LECTUEE I. the cattle were altogether wrong-doers, there was no neglect or misconduct for which the company were responsible; but that if the cattle escaped through defect of fences which the company should have kept up, their damage was consequent on that wrong, and recoverable in an action on the case against the com- pany, for letting their fences be incomplete, or out of repair. In this case there can be hardly any reason- able doubt but that if the plaintiff had been allowed simply to state the facts of his wrong, apart from any technical form of action, and to support that state- ment by evidence, he must have succeeded against the railway company at the outset, instead of being obliged to resort (assuming him to have had the courage to do so) to the costly expedient of a second action. L But the injustice thus occasioned by the necessity for selecting a form of writ, even where the wrong was plainly one of common law cognisance, falls strictly within the pale of the common law; and perhaps I have already devoted too much time to the con- sideration of an evil attaching to the old common law procedure, which, after all, is only indirectly connected with the subject of my present lecture, viz., Equity (a). (a) Eule 2 of the Schedule to the Judicature Act, 1873, providing that ' ' erery action shall be commenced by a -writ of summons, -which shall be " indorsed with a statement of the nature of the claim made, or of the relief " or remedy required," revives, thougji in a minor degree, the vice of the old common law procedure, by requiring a plaintiff to define his cause of action by his writ, instead of leaving him simply to state his case. The proposed new rules and regulations would neutralize this objection by pro- LECTUBE I. 11 Secondly. The other evil alluded to— and it is with this one that we are concerned, as having, in my opinion, mainly given rise to our equity jurisprudence — was the general cramping operation of the common law procedure hy writ, in the instances of those civil wi'ongs which did not fall distinctly withia any ascertained common law class. After selecting his form of action, the plaiatiff might fail, not from having made an erroneous selection, but because the wrong done was of a class not referable to any hitherto known class of remedy. In this case there was an absolute denial of justice. The plaintiff would have equally failed, had he sued in any other form. And frequently a man might abstain from suing altogether, feeling it to be hopeless to select a form of action suitable to his grievance. The heavy fetters of such a procedure could not fail to be early felt. The system was, in fact, incapable of expansion, or of adaptation to the growing wants of society. So long ago as the thirteenth j^ear of Edward the First's reign, a remedy was attempted. At that time actions at law in fact commenced with an original writ sued out in Chan- cery ; though at a later date the common law courts contrived practically to dispense with the necessity for suing out these original writs. The drawing up of these writs was part of the business of the clerks (better known afterwards as the Masters) in Chancery. An attempt was made to mitigate the latter of the riding that in the indorsement " it shall not be essential to set forth the "precise ground of complaint or the precise remedy or relief," and by con- ferring a power to amend the indorsement ; see Order II. rale 2. 12 LECTUEE I. two evils, which I have just explained, by giving a larger discretion and enjoining a greater activity in the framing of new writs. It was accordingly enacted (a), that " whensoever from henceforth it shall fortune in " the Chancery, that in one case a writ is found, and in " like case falling under like law and requiring like " remedy is found none, the clerks of the Chancery ' ' shall agree in making the writ ; or the plaintiffs may " adjom'n it until the next Parliament, and let the " cases be written in which they cannot agree, and let " them refer them unto the next Parliament, and by " agreement of men learned in the law, let a writ be " made, lest it should happen that the court should " long time fail to minister justice unto com- " plainants." This enactment, though well intended, proved wholly inadequate. The Clerks in Chancery made little or no use of the new powers conferred. It was hardly to be expected they should. They were ecclesiastics, know- ing little of the common law. There was no encou- ragement to them to make any attempt to frame new writs, since the common law courts were the sole judges of the validity of these writs when framed. And it cannot be doubted that any new writs adequate to newly-occurring emergencies, based as they must have been on the Eoman law, would immediately have aroused the jealousy of the common law judges, and have been treated as invalid. The Act, therefore, remained, to a considerable ex- tent, a dead letter; and, but for some interposition, (a) 13 Edward I. stat. 1, cap. 24. LECTURE I. 13 right and justice must have been stifled by a system of procedure -which Sir William Blackstone seems to have thought deserving of eulogium (a). The common law courts thus falling short in the administration of justice, those who suffered wrongs for which the common law afforded no redress applied either to the King in Parliament or to the King in Council, who referred these matters to the Chancellor. Thence grew up a practice of applying to the Chan- cellor directly, who, perceiving how hopeless it would be to attempt to remedy the wrongs brought before him by fi'aming new writs, took upon himself to apply an immediate remedy, by ordering the defendant to do, and compelling him to do, what he (the Chancellor) considered to be right in equity and in conscience. Such, according to the best of my research, is the origin of our equity jurisprudence. Considering that origin, it is hardly to be expected that either its nature or extent should be capable of any concise general definition. To convey an accurate notion of the nature and extent of equity jurisprudence, requires little less than a statement of the cases in which, and the circumstances under which, the Court of Chancery interposes to mitigate the hardships and inconveniences of the common law. Indeed, on refer- ring to the text books, you wUl observe wide differ- ences of opinion amongst the most eminent jurists respecting the principles upon which equity interposes — differences which can be accounted for only by ad- (a) Bl. Com. vol. iii. 183, 184. 14 LECTURE I, mitting that the doctrines and principles of the Court have varied from time to time. Thus, you will find Lord Bacon, Mr. Ballow, in the treatise known as " Fonblanque on Equity," and the earlier theoretical writers, attributing to the equity jurisdiction far larger and more uncontrolled powers than later writers have been willing or able to recognise. Lord Bacon, for instance, in his "DeAugmentis Scientiarum," hber 8, aphorism 36, assigns to the courts of equity the power both of mitigating the rigour and supplying the defects of the law. His words are, " Habeant similiter curiae " praetorise potestatem tarn subveniendi contva. rigorem " legis quam supplendi defectum legis." And there can, I think, be no doubt that the early foundations of our equity system were laid by chancellors who as- sumed to themselves and exercised powers fully as large as that ascribed by Lord Bacon. On the other hand, the jurists of more recent times, writing when the edifice had already risen iato something like shape and proportion, have denied the existence of those larger principles of jurisdiction. Sir William Black- stone observes, — " In the first place it is said, that it " is the business of a court of equity to abate the " rigour of the common law. But no such power is " contended for." And the learned writer proceeds to give various instances of common law hardship, which the equity courts had not interfered to alleviate (a). These discrepant views represent truly the equity doctrines of two different epochs. For the first creation of the equity system, principles of jurisdic (a) Bl. Com. vol. iii. 430. LECTURE I. 15 tion as extensive as those enunciated by Lord Bacon were absolutely necessary; for the mere development of it, more moderate powers were sufficient. The history of the growth and development of equity jurisdiction is, indeed, by no means, as sometimes supposed, that of a gradual, slow encroachment. On the contrary, turning to the earliest records, we see, at first, the chancellors trying apparently to redress every grievance of whatever nature, which would otherwise be remediless ; while the labours of the more recent judges consisted, not merely in developing heads of equity already founded, but in pruning the luxuriance of the earlier jurisdiction. In illustration of this position, let me turn to the book which I now take up, and wliich contains the most authentic information we possess respecting the early proceedings in Chancery. It is the first volume, " Calendars in Chancery of Queen EKzabeth," printed *by order of the Record Commissioners. Prefixed to the Calendars is contained a selection of bills and petitions, of dates anterior to Queen Elizabeth's reign, accompanied, in the later instances, by the answers, replications, and depositions of the witnesses. The general character of these early proceedings is in the preface to the publication thus described: "Most of " these ancient petitions appear to have been presented " in consequence of assaults and trespasses and a " variety of outrages which were cognisable at common " law, but for which the party complaining was unable " to obtain redress, in consequence of the maintenance " and protection afibrded to his adversary by some 16 LECTURE I. " powerful baron, or by the sheriff, or by some ofacer " of the county in which they occurred." I need hardly observe to the youngest beginner amongst you that any such cause for coming into equity has long since ceased to exist ; and even if any such in fact existed, it would clearly at the present day constitute no ground for equitable interposition. The latitude of jurisdiction assumed by the early chancellors, will, however, be best shown by the selec- tion of a few instances from the book before me (a). But, in truth, we find considerable inaccuracy of opinion, respecting the true functions of equity, pre- vailing at a much later date than that of these prece- dents. Thus, the celebrated confidential adviser of Henry the Seventh, Archbishop Morton (&), appears, according to a report in the Year-Books, to have de- nied even the distinction between "technical equity" and " equity in the sense of natural justice." The (a) The following cases were then read : — Istly, p. XX. — " Kymburley V. Goldsmith. A common case of action for non-deliTciy of woad." 2dly, p. xli.^" Appilgarth, widow, v. Sergeantson. Bill complain- ing that defendant, having ohtained a sum of money of plaintiff, giving her to understand he intended to marry her, has married another woman, and refuses to return the money. '' See this case, Appendix A. 3rdly, p. xxiv. — "Henry Hoigges v. John Harry. Bill ty plaintiff, an attorney, to restrain the defendant, a, priest, from practising witchcraft against him." See this case. Appendix B. The two first cases ohviously present no ground for equitable inter- position. The third, viewing witchcraft as a reality, was in substance a bOl for protection against a criminal outrage, a species of suit wholly inadmissible at the present day. (6) Bacon, in his Essay on Counsel, says that Henry the Seventh, in his greatest business, imparted himself to none except Morton and Fox. LECTUEE I. 17 report of the case, which is noticed by both Mr. Spence and Lord Campbell, is rather curious. It appears that one of two executors, colluding with a debtor to the testator's estate, had released the debtor. The co- executor filed a bill agaiast the executor and the debtor. The Chancellor was disposed to give relief. Fineux, counsel for the defendant, observes, "that " there is the law of the land for many things, and " that many things are tried in Chancery which are " not remediable at common law, and some are merely " matter of conscience between a man and his con- " fessor," thus poiating out accurately the distinctions between law, equity, and religion. But the Chancellor retoi-ts : " Sir, I know that every law is, or ought to "be, according to the law of God" (ignoring thus altogether any distraction between law and religion) ; and then, merging completely the chancellor in the archbishop, he continues : " and the law of God is, " that an executor, who is evilly disposed, shall not " waste all the goods, &c. And I know well, that if " he do so, and do not make amends if he have the " power, il sera damne ia hell." And then the Chan- cellor proceeds to lay down some rather unsound law (a). But I would recommend those of my hearers who would wish clearly to understand and appreciate how the wave of Chancery jurisdiction first swelled and threatened to advance beyond due bounds, and then gradually receded, to read carefully that portion of Mr. Spence's work which treats of the now obsolete (a) tear Book, 4 Henry VII. fo. 5. 18 LECTUEE I. jurisdiction of the Court of Chancery (a). I am not aware that the subject has been systematically con- sidered elsewhere. If, then, it be historically true that our present equity jurisdiction is only the ultimate result of the development of principles varying in different cen- turies, it must obviously be impossible to convey any satisfactory view of equity which does not, in sub- stance, amount to an enumeration of the particular heads of jurisprudence gradually evolved by the labours of our successive chancellors. But some faint general notion of the functions and limits of equity may perhaps be conveyed by enuncia- ting, and elucidating by example, a few of the leading maxims or principles of equity. I will select four — three of an enabhng, and the fourth of a restrictive character. 1. No wrong without a remedy. 2. Equity regards the substance or spirit, and not the letter merely. 3. Equity acts " in personam." 4. Equity follows the Law. 1. No wrong without a remedy. This is the chief root of our equity jurisdiction. You have already seen the over-luxiuriance of the earlier shoots which sprang from it. The only limit, indeed, to its creative power, is the barrier interposed between itself and that portion of natural justice which, as ah'eady indicated, falls withia the province of morals and religion only. To this maxim, for instance, we owe our vast system (a) Spenoe's Equitable Jurisdiction, vol. i. p. 684. LECTURE I. 19 of uses Eind trusts. You are probably aware tbat, pre- viously to the earliest records in the book before me (a) (the earliest are of the date of Eichard the Second), a practice had grown up (under circumstances which time does not permit me to detail) of the legal owners of lands conveying them to third parties, who undertook to hold them for certain uses. The common law courts steadfastly refused to recognise in any way the engagements entered iato by those (feoffees to uses, as they were called) to whom the land had been so conveyed (6). The chancellors, on the (a) The Calendars of Proceedings, vol. i. {h) THs is ■well illustrated by the general immunity of trustees from criminal liability at common law in respect of breaches of trust, whether fraudulent or quasi-felonious. Until quite recently (1857) an ordinary trustee of (say) 3O,O00Z. consols might sell the stock and misappropriate the proceeds without incurring criminal punishment. The previous legislation on the subject had been directed against particular persons, such as servants, bankers, factors, &o. The law on this point is humorously satirized by Fielding in his "Amelia," where Betty, having purloined her mistress's wardrobe, is brought before the Justice, and Booth, in charging her, says reproachfully, " Nay, you are not only guilty of felony, but of a felonious breach of trust, for you know everything you had was entrusted to your care.'' The story then continues thus : — Now it happened, by very great accident, that the Justice, before whom the girl was brought, understood the law. Turning, therefore, to Booth he said, " Do you say, sir, that this girl was entrusted with the shifts ? " " Tes, sir,'' said Booth, "she was entrusted with everything.'' "And you will swear that the goods stolen," said the Justice, "are worth forty shillings? " " No, indeed, sir," answered Booth ; " nor that they are worth thirty either." " Then, sir,'' cries the Justice, " the girl cannot be guilty of felony. ' "How, sir,'' said Booth, "is it not a breach of trust? and is not breach of trust felony, and the worst felony, too 1 " " No, sir,'' answered the Justice, " a breach of trust is no crime in our 2 20 LECTURE I. Other hand, held that these engagements were binding on the consciences of the feoffees to uses, and that they (the feoffees) were compellable in equity to perform them. Thus was the foundation laid of the great sys- tem of trusts, which, by itself, constitutes the larger portion of the entirety of equity jurisdiction. This was, perhaps, the boldest application of the maxim that the history of our equity jurisprudence tells of; and, as might be expected, it was one of early date. Let me read to you from the volume before me one of the earliest pubUshed instances of a resort to equity which falls under this head of jurisdiction (a). 2. Equity regards the spirit, and not the letter. The popular belief, that the law exacts a literal ful- filment of contracts, has ever been deeply rooted. We trace it distinctly in the drama and in works of fiction. Perhaps one of the most remarkable instances is that of Shylock's bond. The penalty of the bond was, as you recollect, — " A pound of flesh, to be by him cut off Nearest the merchant's heart." The money not being paid on the very day, the Jew claims the penalty. Double the amount lent is offered ; but, being tendered after the appointed time, it comes too late, and is refused. And how is the intended victim rescued ? By the merest verbal quibble. Portia says : — law, unless it be in a servant ; and then the Act of Parliament requires the goods taken to be of the Talue of forty shillings.'' (») The case of Dodd v. Browing, Appendix C, was then read. LECTUEE I. 21 " Tarry a little ; — there is something else. — This bond doth give thee here no jot of blood ; The T\-ords expressly are, a pound of flesh : Take then thy bond, take thou thy pound of flesh ; Bat, in the cntting it, if thou dost shed One drop of Christian blood, thy lands and goods Are, by the laws of Venice, confiscate Unto the state of Venice. " Gentlemen, I should be sorry to profane Shakspeare, or to approach the creations of his genius in the same spirit that I should a report in Meeson and Welsby. Considerable latitude is to be allowed to the dramatist; but when I see Antonio saved by a species of construc- tion, according to which, if a man contracted for leave to cut a slice of melon, he would be deprived of the benefit of his contract unless he had stipulated, in so many words, for the incidental spilling of the juice, one cannot help recognising in the fiction of the immortal poet an intensified representation of the popular faith, that the laiv regarded the letter and not the spirit. As to the tender coming too late, that was in strict historical accordance with the law. At common law if a bond was once forfeited by non-payment of prin- cipal and interest on the day stipulated, the whole penalty must have been paid. In these cases of for- feited bonds, before the reigns of William III. and Anne, when the Legislature interfered to regulate the proceedings at common law (a), the only remedy for an obligor who had allowed the time for payment to elapse, was to file a bill in equity offering payment of principal (a) See 8 & 9 Will. III. cap. 11, s. 8 ; 4 & 5 Anne, cap. 16, ss. 12, 13. 22 LECTUEE I. and interest. It is clear that, had the scene of Shak- speare's play been laid in England, and not in Venice, the proper advice for Portia to have given, would have been, to file a biU in Chancery. But it must be ad- mitted that the play would not have been improved. The ground upon which the interference of the equity courts is now rested in these cases of forfeited bonds, is the maxim above referred to — ^that equity regards the spirit, not the letter ; that in substance the bond was intended as a security merely ; that the precise day of payment was immaterial. To the same maxim also is to be referred the equity jurisdiction in, allowing the redemption of mortgaged lands after the day stipulated by the contract. You are aware, doubtless, that in the ordinary form of mort- gage the borrower conveys his property absolutely to the lender, subject to a stipulation that, upon payment of the money borrowed and interest, on a particular day, the property shall be reeonveyed to the borrower. In the older form of mortgage, the stipulation com- monly was, that upon payment on the day named, the deed should be void, or that the borrower should be at liberty to re-enter. The common law courts, constru- ing these conditions with the utmost strictness, held that, unless the money were paid on the very day, the estate was lost to the mortgagor. The Court of Chan-, eery, on the other hand, looking to the spirit of the transaction, held that the land was, in substance, a pledge merely, and that time was not of the essence of the bargain ; and that, therefore, the mortgagor should be allowed to come after the time fixed and pay the LECTURE I. 23 principal and interest then due, and obtain back his estate. While, however, we value to its full extent the maxim that the spirit and not the letter is to be regarded, it must be confessed that the heads of equity which are attributed to the application of this maxim are those which it is the least easy logically to justify. The ordinary money bond, for example, must, in its earliest use, have been meant to represent the true contract between the parties, and, if deliberately entered into, no valid ground for interference seems to exist (a). In fact, to justify the equity jurisdiction, we must suppose the existence of an epoch intermediate between the first use of the bonds and the exercise of the juris- diction, and during which these money bonds (which originally truly represented the contract between the parties) came to be used merely as a convenient form of security; and I am not aware that legal history warrants such a supposition. It is, indeed, extremely probable that a jurisdiction now justified upon the principle of the above maxim, derived its growth origiuaUy from the interposition of the court in cases where accident in allowing the day of payment to pass by, or some other circumstance of (a) In Preston f. Dania, L. K. 8 Exct. 19, Bramwell, B., thus expresses himself on tiis point : "Look for a moment at the history of these bonds. '■ OrigiQally the penal sum mentioned in them was recoverable. Then the "Courts of Equity, unfortunately as I think, established a practice of ' ' reliefing the obligor from payment of the penalty — of relieving him, ' ' tha,t is to say, from the obligation of doing what he had contracted "to do." 24 LECTUEE I. hardship, induced the equity judge to mitigate the Hteral rigour of the contract {a). 3. Equity acts "in personam." This is an im- portant peculiarity. The remedy to which, in cases of breach of contract, the common law actions all tended was "pecuniary compensation." The aim of the eqxiity courts was to make the defaulter do what was right. The thing to he done might or might not be the payment of a sum of money ; but the modus operandi was to order the doing of it, and attach the defaulter's person imtil he did what was ordered. Hence arose the salutary equity jurisdiction in respect of wrongs which do not admit of pecuniary compen- sation. A man agreed to sell a field possessing special attractions for the purchaser, and subsequently refused to convey it. The Court of Equity decreed him to fulfil his contract — to perform it specifically, as we say — and justice was satisfied. Hence, again, proceeded the vast jurisdiction by injunction (&), assumed, and after many a struggle suc- cessfully maintaiaed, by equity — a jurisdiction which practically conferred on the equity courts the power of modifying the efi'ect of the decisions of other tribunals. Thus, a man, in assertion of his legal right, sued in the Common Law Court. His opponent came to the Court of Equity, and said, " Although the strict " legal right is on the other side, there are equitable " circumstances in this case which ought to deprive " my assailant of the right of suing me." And the (a) See Spence'a Equitable Jurisd. toI. i. p. 623 — 630. (J) Not about to be abolished. See Judicature Act, 1873, sect. 24 Bub-seot. 5. LECTURE I. 25 Equity Court, if it agreed in this view, simply ordered the plaintiff at law not to sue, and put him in prison if he persisted. Hence, again, the equity jurisdiction, even where the property ia dispute was situate out of England, as in Ireland, Scotland, or the colonies. Hence, too, paradoxical as it may seem, the virtual trusteeship which the Court acquires over the very property of parties litigant ; the Court saying to the executor, or other person hound to distribute the property, — " You " ought to distribute according to the true equitable " rights, and we will order you to do so. Meanwhile, " until the rights are ascertained, you shall pay the " money into the bank for safe keeping." 4. To pass to the last maxim mentioned, " Equity follows the Law." This, as intimated, is restrictive in its operation. It is the maxim chiefly referred to for the purpose of keeping the equity jurisdiction within moderate bounds. It may be said to have a double meaning and operation. Thus, first, " Equity follows the law," in the sense of obeying it — conforming to its general rules and policy, whether contained in the common or in the statute law. Perhaps one of the best instances of the application of the maxim in this first sense is afforded by the decision of Lord Talbot, in the case oi Seard v. Stamford {a). You are aware that, if a man marry a woman who is indebted, he thereby makes himself liable at law for aU her debts. He may be sued immediately after marriage (&). But this UabiHty (a) Cases Temp. Talbot, 173. (6) As to women married after August 9th, 1870, tlie law was altered by 26 LECTUEE I. of the husband for the debts of his wife contracted before marriage is one which ceases at the wife's death. In the case under consideration, a wife indebted before the Married Women's Property Act (33 & 34 Viot. o. 93), the 12th section of which enacts as follows : — "A husband shall not, by reason of any ' ' marriage which sliall take place after this Act has come into operation, be " liable for the debts of his wife contracted before marriage ; but the wife " shall be liable to be sued for, and any property belonging to her for her ' ' separate use shall be liable to satisfy, such debts as if she had continued "unmarried." This section agrees in principle with the decision, antecedent to the Act, of T.-C. Malins (Chubb v. Stretch, L. R. 9 Eq. 655), that where the creditor's right of action for the wife's debt is destroyed by the husband's bankruptcy, property settled by the wife on her marriage to her separate use is liable. The effect of the enactment, however, taken in connection with the other proTisions of the Act of 1870, was seriously to prejudice the interests of creditors, for the Act, while containing provisions making certain after-acquired property of a married woman her separate estate, left the rights of the husband in respect of the wife's property at the time of marriage untouched, so that upon a husband marrying (without settle- ment) a wealthy but indebted wife, he might acquire her property, and the creditors would be without remedy during the coverture, just as they were, in Heard v. Stamford, held so to be after the wife's death. To remedy this injustice an amending Act (37 & 38 Tict. c. 50) has recently been passed. By this Act, the enactment of 1870, that a husband shall not be liable for the debts of his wife contracted before marriage is repealed as respects marriages taking place after the passing of the amending Act (i.e., after 30th July, 1874), and a husband and wife married after that date may be jointly sued for any such debt. In any such action, and also in any action for damages by reason of tort committed by the wife before marriage, or for breach of contract made by the wife before marriage, the husband will be liable to the extent of the various descriptions of property specified in the Act as being assets, being in substance the property derived by him through his wife, or transferred by her in contemplation of marriage. The result is that the remedies of creditors in respect of the ante- nuptial debts, torts, or contracts of a married woman, vary according as the marriage took place before August 10, 1870, between that date and July 30th, 1874, both inclusive, or after July 30th, 1874. LECTURE I. 27 marriage brought a large fortune to her husband, and then died. It was contended that the husband, havuig received her fortune, was liable, in equity (though not at law), to pay her debts contracted before covertiu'e. But the Lord Chancellor held otherwise, saying, " There are instances, indeed, ia which a court of " equity gives a remedy, where the law gives none ; " but where a particular remedy is given by the law, " and tlaat remedy bounded and circumscribed by par- " ticular rules, it would be very improper for this court " to take it up where the law leaves it, and extend it " farther than the law allows." Again, " Equity follows the Law " in the sense of apijljong to equitable estates and interests the same rules by which at common law legal estates and m- terests of a similar land are governed. Thus, equity ha-i'ing first, by the exercise of its creative power, called into existence the sj^stem of equitable estates, subse- quently, acting upon the principle expressed by the above maxim, determined that these estates should partake, as nearly as possible, of the quaUty of the corresponding legal estates. Thus a use in fee de- scended according to the same rule, the husbanid was entitled to cm-tesy imder the same circumstances, and so on, as in the case of the legal fee. There was an anomaly in respect of dower, which I do not now enter upon. You will find a most able exposition of the force of the maxim (in the sense which I am now alluding to) in the celebrated judgment of Sir Joseph Jekyll, in Cowper V. Cowper (a), in which case he decided (most (a) 2 Peere 'Williams, 720. The particular passage extracted will be found at p. 752. 28 LECTURE I. reluctantly) that an equitable interest in fee, which had vested in the infant son by the first marriage of Lord Chancellor Cowper, should descend to his cousin of the whole-blood, instead of to his brother of the half-blood, the Chancellor's infant son by a second marriage (a). The passage is quoted in many of the text-books ; but I cannot forbear reading it : — " The law is clear, and courts of equity ought to foUow " it in their judgments concerning titles to equitable " estates ; otherwise great uncertainty and confusion " would ensue ; and though proceedings in equity are " said to be secundum discretionem boni viri (b), yet " when it is asked, vir bonus est quis ? the answer is, " qui consulta patrujn qui leges juraque servat ; and " as it is said in Eooke's case, 5 Eep. 99 b., that dis- " cretion is a science not to act arbitrarily according " to men's wills and private affections, so the discretion " which is executed here, is to be governed by the " rules of law and equity, which are not to oppose, but " each, in its turn, to be subservient to the other. This " discretion, in some cases, follows the law implicitly ; " in others, assists it, and advances the remedy ; in " others again, it reheves against the abuse, or aUays " the rigour of it; but in no case does it contradict " or overturn the grounds or principles thereof, as has " been sometimes ignorantly imputed to this court. " That is a discretionary power, which neither this (a) For tlie modem alteration in tlie law respecting descent to the half- blood, see 3 AiW. I?, cap. 106, a. 9. (b) See Bacon, "De Augmentis," lib. viii. aph. 32, where, speaking of the curisB prietorise, he says, "Quae statuunt ex arbitrio boni viri." LECTURE I. 29 " nor any other court, not even the highest, acting in " a judicial capacitj^, is by the constitution entrusted with." Having now pointed out to you what I consider to have been the origin of our equity jurisprudence — having shown, as I conceive, the impossibility of defining adequately its nature and extent by any general state- ment and description, or indeed in any other way than by a catalogue of the various heads of equitj^ — having attempted nevertheless to convey some kind of imper- fect notion of its nature and extent — it remains that I should say a few words respecting the classification of the various heads of equity jurisdiction. And here it is to be observed, at the outset, that these various heads of equity jurisdiction being merely the fruits of the shortcomings of the courts of common law, it might be expected that what is not a system in itself (though one is in the habit of so calling it), but only a supplement to the imperfections of another system, should hardly allow of a very methodical classi- fication — and such is the fact. We can classify the heads of equity jurisdiction only by reference in some way to the defects of the common law jurisdiction which it supplements. In the " Manual of Equity Jurisprudence " of Mr. Josiah Smith, the different heads of equity are grouped according to the nature of the relief afforded, or of the functions performed by the court. The titles in Mr. Smith's book are " Remedial Equity," "Executive Equity," " Adjustive Equity," " Protective Equity," and " Auxiliary Equity." This arrangement of the subject is, however, so purely scien- 30 LECTURE I. tific, that I prefer adopting the more usual division into Exclusive, Concurrent, and Auxiliary ; i.e. under the first title are to be ranged all those heads in respect of which the courts of equity have exclusive jurisdiction ; under the second, those in which their jurisdiction is concurrent with that of the common law courts ; under the third, those in which courts of equity, acting in aid merely of the common law courts, supply~some addi- tional remedy which the latter are inadequate to afford. This arrangement, though incomplete ia some respects, possesses the great advantage of an immediate tangible connection with the history of the subject itself. Does the case fall within the first class ? — then it was one of those in which the common law afforded no reUef. Within the second? — ^then the relief in equity was probably more perfect, more convenient. Withia the third ? — then the partial help of equity, supplying some want of the common law, but not otherwise assuming jurisdiction, was needed and granted. But this ar- rangement has another and far greater advantage. It is of practical utility (a) . For in practice the important question (in many cases, at least) is not as to the character of the relief afforded by the court, viz., whether it be remedial, adjustive, or protective, but (o) The 3itli Section of the Judicature Act, 1873, while assigning to the Chancery Division of the High Court all matters in which the Court of Chancery has now exclusive jurisdiction by statute,' makes no similar assignment to that division of matters in which the Court of Chancery has exclusive jurisdiction otherwise than by statute. It mentions certain heads of non-statutory jurisdiction ; and as to matters not so mentioned the suitor may select either the Chancery Division or one of the Common Law Divisions. LECTURE I. 31 whether there is a remedy in equity or not; and if there be one, whether the suitor has a choice of pro- ceeding at law or in equity ; and the ordinary classifi- cation tends to call the attention forcibly to these main points. For my own part, without wishing to underrate the importance of a scientific analysis of the heads of equity, in reference to the character of relief afforded, I would strongly advise you to adopt the usual arrangement ia the acquisition of equity knowledge. Before parting with this subject, let me allude to a classification, not of heads of equity jurisprudence, but of the general business of the Court of Chancery, which it is of extreme importance that you should, as men of business, appreciate thoroughly. The popular notion of the Court of Chancery is, that it is purely concerned with litigation. Nothing can be farther from the fact. A large, perhaps the larger, portion of the business of the Court is purely administrative, the residue only litigious. Thus, an intestate dies, a bill is filed, his property is realised, his creditors are paid, and the residue is distributed under the direction of the Court. In such a case, in the absence of any dispute respect- ing the next of kin or heir at law, the Court merely performs the functions of a trustee. So, when a testator dies, the suit for the administration of his estate is frequently . Htigious to some very trifling extent only. It is much to be regretted, that, amidst the general outcry and obloquy to which the Court of Chancery has been exposed, this distinction should have been so 32 LECTURE I. frequently overlooked, and in some cases, I fear, wilfully put out of sight. Chancery suits for the administration of property bequeathed by a testator to some half-dozen children for their lives, and after their respective deaths to their children at twenty-one, have been represented as owing their vitality, not to the happy health of the tenants for life, whose property has been well taken care of, but to the careless indolence or perverse ingenuity of judge, counsel, solicitors, and officers of the Court. When some educated people are found imbibing from the works of fiction of a weU-known talented author the notion that Chancery martyrs stiU exist, and that Chancery is not a mere ordinary Circumlocution Office (to adopt the author's phrase), but ciixumlo- cution of malice prepense, it is well that you, gentle- men, should at least be able, in case of need, to point out the broad distinction between the litigious and administrative business of the Court, and to refer to its true causes the longevity of a large proportion of our Chancery suits. I must now conclude. This, my first lecture, has, I confess, fallen short of what I had hoped to accomplish when I drew up my prospectus. I had thought then to have embodied in it a connected historical sketch of the diiferent heads of equity. It, however, soon became evident to me that to do this well would have required far more time than I could command. - 1 regret it extremely. The importance of studying the jurisprudence of equity historically, has, I think, hardly LECTURE I. 33 been appreciated. I spoke at the outset of the advan- tage of varying your modes of learning ; let me recom- mend, as a mode of acquiring a knowledge of equity, one which I believe you will find both interesting and j)rofitable. Take Lord Campbell's "Lives of the Chan- cellors." Begin (say) with the Life of Lord Nottingham. Read first the life of a Chancellor, and then turn to the reports of his more important decisions. Lord Campbell's biographies will give you some infonnation respecting the legal performances of each chancellor and the books in which they are to be found recorded; and I am much mistaken if you do not find this combination of history, biography, and equity impart a new zest to your studies. LECTUEE II. The subject of my present lecture is the general history and constitution of the courts by which equity jurisprudence is administered. At the outset, let me observe that I do not propose treating of courts of equity no longer in existence^ such as that of the Equity Exchequer, abolished some fifteen years since (a) : nor of courts which, practically if not theoretically, exercise only a limited jurisdiction, such as the Chancery Court of the County Palatine of Lan- caster (6). With the exception of a few observations respecting the equity appellate jurisdiction of the House of Lords, I shall confine my consideration exclusively to those branches of the High Court of Chancery, whose local habitation may be said to lie within a few yards of the spot where we now stand (c). (a) As from Oct. 15, 1841. See 5 Vict. cap. 5. (J) The practice of the Lancaster Chancery Court is regulated hy the 13 & 14 Vict. cap. 43, and 17 & 18 Vict. cap. 82, and in common with the High Court of Chancery by the 21 & 22 Vict. cap. 27, and the 25 & 26 Vict. cap. 42. This Court is, so far as respects its primary jurisdiction, •unaffected by the Judicature Act, 1873. The appellate jurisdiction of the Court is by section 18 of the Act transferred to the new Court of Appeal. (c) The lectures were delivered in tjie buildings of the Incorporated law Society, at Chancery 3jan«. LECTUBE n. 35 The staff of high dignitaries administering equity justice consists, of the Lord Chancellor, two Lords Justices, the Master of the EoUs, and the three Vice- Chaiicellors, seven in all. I place the Lords Justices before the Master of the Eolls, as occupying in judicial importance a higher position ; though I may observe, by the way, that, as respects legal precedence, the Master of the Rolls ranks before the Chief Justice of the Common Pleas and Chief Baron of the Exchequer, both of whom precede in order of legal dignity the Lords Justices of the Court of Chancery. Of these seven judicial dignitaries, five fill offices which are of comparatively recent creation : and it will, I think, be more convenient to state shortly the origin of the more modern amongst them, before proceeding to the con- sideration of the ancient. Let us, then, direct our attention to the Lords Justices first, as beiag the most recently created high equity functionaries. Their dignity is indeed of the most modern date. I need only carry you to the year 1850. In the summer of that year. Lord Cottenham had resigned the Great Seal from illness. His successor. Lord Truro, a common lawyer, was but imperfectly acquainted with the practice of the Court ; and this, combined with an almost over-painstaking disposition, led to an extreme slowness in disposing of the appeals before him. In fact, the Appellate Court required strengthening. The result was, the Act of the 14th andlSth Vict., cap. 83(«). * * * * (a) The following sections were read or referred to : — § 1. Power to appoint two judges of the Court of Appeal. D 2 36 LECTUEE n. The 12th section of the Act seems to contemplate the making of some general regulations by the Chan- cellor with respect to the sittings and business of the Court of Appeal. No general regulations have, how- ever, been issued. The practice as to sitting may be thus stated. Whenever the state of the appellate business and the Lord Chancellor's other avocations so permit, or whenever a case of unusual importance occurs (such as that relating to the rights of the pre- ference shareholders of the Great Northern Railway (a), which is to be proceeded with to-morrow before the full court), the three judges sit together. In the absence of the Lord Chancellor, the Lords Justices sit alone. When the state of the appellate business makes a severance desirable, the Lord Chancellor and Lords Justices sit as separate courts. This is more frequently the case than not, and in fact is so at the present time. To- morrow, after the Great Northern Railway case shall have been disposed of by the full Court, the Lord Chancellor and Lords Justices will sit separately (6). § 5. Court of Appeal to hare all the juriadlction at time of Act exercised by the Lord Chancellor. § 9. Decision of the majority to be the decision of the Court, and if the judges equally divided, order under appeal to be deemed affirmed. § 11. One judge with Lord Chancellor, or two judges together, or Lord Chancellor alone, to form court. By the joint effect of the 30 & 31 Vict. cap. 64, and 31 Vict. cap. 11, a single judge may now exercise all the jurisdiction of the Court of Appeal, except that decrees made at the hearing of a cause or on motion for decree or on further consideration cannot be reheard by a judge sitting separately. (a) Henry v. Great Northern Eailway Company, now reported 1 De Gtex & Jones,. 606. {I) The practice as to sitting has varied considerably, according to the LECTURE II. 37 That this Act has, on the whole, proved a benefit to the suitors cannot, I think, be doubted. That it is not altogether satisfactory in its actual working, is, in my judgment, equally clear. The uncertainty whether if an appeal be presented, it wiU be heard by the three judges, or by the two justices, or by the Lord Chancellor alone, creates often serious difficulty in determining whether an appeal should be pre- sented or not. Occasionally, when little doubt is felt that a decision below could not stand if reviewed in presence of three judges, the reconsideration of it by a single mind affords a comparatively slender hope of success. Six years of retrospect (a), then, gentlemen, are suffi- cient to bring us to a time when the Lords Justices formed no part of the staff of equity judges. There would remain, however, as representing the judicial corps, the Lord Chancellor, the Master of the Rolls, and three Vice- Chancellors ; the first acting as appel- late judge in respect of the judgments of the four last. Travel back with me to the year 1841, and you will have reached the modern cradle of the two last created vice-ehanceUorships (6). Go back again some thirty years more, to the year 1813, and you will arrive at the origin of our first vice-chancellorship (c). The appointment of a Vice-Chancellor, in 1813, was a remedy tardily japplied to mitigate the evils caused Tiews and inclination of the holder of the Great Seal for the time being. During the greater part, if not the whole, of Lord Westbury's Chancellor- ship, there were no sittings of the full court. {a) i.e. from 1857. (J) 5th Vict. cap. 5. (c) 53d Geo, III. cap. 24. 38 LECTUilE ir. partly by the arrears of business of tbe Court of Chan- cery, but more particularly by the arrears in the appeals to the House of Lords. Lord Castlereagh, in moving in the House of Commons the second reading of the bill for the establishment of the vice -chancellor- ship, stated, that the arrear of appeals then pending before the House of Lords amounted in number to 280 ; and that, according to the average rate at which the causes had been decided, they could not be determined in less than eleven years (a). It was desired, therefore, to appoint a Vice-Chancellor, in order that the Chan- cellor might devote more time to the House of Lords' appeals ; and this was done. The two new vice-chancellorships of 1841 were part of a general scheme for the abolition of the Equity Exchequer jurisdiction. Previously to that time, bills used to be filed in the Exchequer Court, and equity causes determined there, under a system of pleading and practice differing very little from that of the Court of Chancery. A single judge of the Exchequer sate in equity. The jurisdiction was practically subject to two evils — First, the equity judge had to go circuit early, in July, and the Coui-t was, therefore, closed fi-om July to November; and secondly, the only ap- peal, even from interlocutory orders, was to the House of Lords. For these reasons it was thought expedient to abolish the Equity Exchequer jurisdiction, and at the same time two new vice-chancellors were created. Such is the general outline of the origin of the (a) Hansard's Parliamentary Debates, vol. xxiv. p. '459. LECTURE n. 39 thi-ee Tice-chancellorships ; but there is some little complication in the Acts under which the three pre- sent vice-chancellors sit. The Act of 1813, the 53d George III. cap. 24, created a new judge with the title of Vice-Chancellor of England, and a salaiy of 6,000L per annum, ranking immediately after the Master of the EoUs. The Act of 1841 created two new vice-chancellors with salaries of 5,000Z. only, and rankiag only after the Chief Baron of the Exchequer ; and the same Act made provisions for placing the then future successors of the then Yice-Chancellor of England on the same footing, as regards salary and precedence, as the two new judges. It was, however, supposed, at the time of the Act of 1841, that the services of one only of the two new vice- chancellors would be required permanently; and the Act, therefore, provided that no successor should be appointed to the vice- chancellor secondly appointed under that Act. As it happened, the first vacancy in the vice -chancellorship of 1841 was that caused by the lamented infirmity of Vice-Chancellor Wigram, who was in fact the secondly appointed vice-chancellor ; and on his resignation, therefore, no new judge could be appointed, although the state of business called for the services of one. A special Act became therefore necessary to provide for the continuance of the vice- chanceUorship. This Act, again (14th and 15th Vict, cap. 4), only provided for the appointment of a single successor to Vice- Chancellor Wigram ; and the third vice-chancellorship (i.e. the second under the Act of 1841) was made permanent only in the year 1852, as 40 LECTURE II. part of the general scheme for the abolition of the Master's offices {a). We have now, as you perceive, after travelling backwards less than sixty years, elimi- nated five of the seven high equity functionaries. The Lord Chancellor and the Master of the Eolls alone remain. Their dignity and office cannot be so summarily disposed of; and at this point perhaps it may be convenient to trace the origin and growth of their jurisdiction as equity judges. Such of you as may have found time since my last lecture to refer to the chapters of Mr. Spence's work or of Sir W. Blackstone's commentaries, then recom- mended for your perusal (6), will have learned that, under the Saxon monarchs, and immediately after the Norman Conquest, the whole business of the country, political, administrative, and judicial, was concentrated in the great or general council. Such a mode of government was obviously consistent only with an extremely rude state of society. "With an advancing civilization, a division of labour was inevitable. The first step in this direction was that by which a minor or executive council was formed out of the great or general council. The history of the creation of the minor or executive council may be thus stated : — The general council met only at fixed times ; I think three times a year only. A permanent council, which should be at hand to advise the Crown when the great (a) 15 & 16 Vict. cap. 80, ti. 52. (i) Spence's Eq. Juried, vol. i. part ii. 'book i. chapters ii. and t. • Bl. Com. vol. iii. ch. it. Hints for preparation for the next lecture were oeoasionally given at the end of the preceding one. LECTUEE n. 41 council was not sitting, was therefore needed. Now, amongst tlie component elements of the great coimcil as continued imder the Norman Conquest, were most of the high officers of the realm ; such as the Lord Chancellor, the Lord High Steward, &c. These high officers were, in fact, ex-officio members of the great councU : just as by many, if not most, of the modern constitutions of foreign countries of the present day, the Crown ministers sit and vote, as of right, in the legislative assemblies which are otherwise elective. The permanent council which was needed was created by forming into a smaller councU the high officials whom 1 have just referred to, and joining with them the greater barons. By this means the executive and judicial functions were severed from the great council, leaving the legislative, so far as in those early times the great council can be said to have had any legisla-- tive functions, with the latter. The next step was the severance of the judicial functions from the executive. The minor council was attendant on and followed the monarch's person ; and one of the grievances complained of in the time of King John was, that the necessity of travelling whither- soever the Crown might be resident to obtain the deci- sion of causes, led to expense and trouble. Accordingly, we find a special article in Magna Charta : — " Ut com- " munia placita non sequantur curiam domini regis " sed assignentur in aliquo certo loco ; " and by virtue of this article the .Court of Common Pleas was estab- lished at Westminster. The Courts of Queen's Bench and Exchequer, and indeed the Com-t of Chancery 42 LECTURE n. itself, were similarly offshoots from the aula regis, or lesser council, which ultimately retained little more than the functions of the privy council. The foregoing may be accepted as a general outline of the history of the severance and distribution of the legislative, administrative, and judicial functions of the monarch and his great council. But, as might be supposed, the severance was only gradually effected. Thus, it appears, that, so late as the reign of Edward!., the practice of presenting petitions to the king in Parliament, concerning matters which ought to have been dealt with by some one of the severed branches of jurisdiction, prevailed to an extent sufficient to interfere with the ordinary business of the great council of Parliament. This is made clear by an ordinance of the eighth year of that monarch, which runs in substance thus : — " Because the peoj)le coming to the king's parha- " ment are often delayed and disturbed by the number " of petitions brought before the king, the greater " number of which could be disposed of by the chan- " ceUor and the justices, it is provided, that all peti- " tions touching the Seal do come first before the " chancellor, and those touching the Exchequer, &e., " do come, &e., and those touching, &c. &c. &c. And " if the demands be so great, and so much of grace, " that the chancellor a&d these others cannot do with- " out the king, then they shall bring them before the " king with their own hands to know his will (a)." (a) See the ordinance, as copied from Kyley's Pleadings in Parliament, 442, given in Appendix D. LECTUEE II. 43 In the reign of Eichard II., the proper Umits of the jm-isdiction of Parliament would appear to have become somewhat better understood, at least by Par- liament itself. Thus, in the thirteenth Eichard II. we find a petition amounting ia substance to a biU for the redemption of a mortgage, and the answer is : " Que la dite petition n'estoit pas petition du Parle- " ment, eiaz que la matii-e en ycelle compris deust " estre discus par la Comune Ley (a)." And in the fifteenth year- of the same reign, on a petition by the Abbot and Convent of Abingdon, complaining of an improper seizure by the king's escheator, the answer is, in substance, " Let the matter be referred into " Chancery (b)." Not that the Parhament EoUs of later date do not contain instances of occasional departure from true principle. . Thus, in the fifth year of Henry V. we find William De Clynton presenting a petition, com- plaining that he had enfeoffed ■WiUiam de la Pole and others of aU his land in England and Calais, and that William de la Pole, sole survivor, refused to deal with the lands according to his direction. And we find relief actually given by the Parliament, and de la Pole ordered to enfeoff new persons named by De ClyTiton, and the feoffinent itself recorded on the Parhament EoUs (c). But it is time that we should attempt to trace more particularly the causes which led to the juiisdiction in (a) Eotuli Pari. toI. iii. pp. 258, 259. (i) Ibid. p. 297. (c) Rotuli Pari. vol. iv. p. 151. 44 LECTUEE II. equity becoming vested in tHe Lord Chancellor, rather than in any other portion of the judicial system. In my first lecture, though explaiaing generally the causes and origin of equity jurisprudence itself, I rather took for granted than explained the fact of the Chan- cellor becoming the judge by whom Equity should be administered. One mode in which the acquisition by the Chan- cellor of the equity jurisdiction has been accoimted for, is that suggested by Lord Hardwicke, when Mr. Yorke, in his celebrated argument in Rex v. Hare & Man (a). The argument arose out of a question, whether a writ of scire facias, directing the defendant to appear " coram nobis in cancellaria nostrsi, &c. &c. " ubicumque tunc fuerit," were good, or whether the words " in Anglia " ought to have been added. In this case Lord Hardwicke, entering learnedly into the origin of the jurisdiction of the Court of Chancery, says as follows : — " The jmisdiction of this court, as it is a court of " equity, is perhaps of all others the most difficult to " be traced, both as to its foundation and the time " when it had its original. But I think there have " been very great opinions, and I am apt to believe " a strict search into antiquity might enable one to " show, that this jurisdiction also has taken its rise " from the Great Seal. For the Chancery being, " upon the division of the king's courts, naturally the " ojjicina justitice from which all original writs issued, " and where the subject was to come for remedy in all (a) 1 Strange, 150. LECTURE n. 45 " cases, the chancellor was applied to in all cases for " proper writs, where the subject wanted a remedy for " his right, or redress for a wrong that had been done " him. But in the execution of this authority, he was " confined by the rules of the common law, and could ■' award no writs but such as the common law war- ■'■ ranted : therefore, when such a case came before " himj. as was matter of trust, fraud, or accident " (which are the subjects of an equity jurisdiction), " the chancellor could award no writ proper for the ' ■ plaintiff 's case, because the common law afforded no " remedy. Upon this it is not improbable that the " chancellors, who were most commonly churchmen, " men of conscience, when tliey found those cases " gi'ew numerous, in order to prevent the suitors from " being ruined against right and conscience, and that " no man might go away from the king's court without " some relief, summoned the parties before them, and " partly by their authority, and partly by their admo- " nitions, laid it upon the conscience of the wrong-doer " to do right." Lord Hardwicke's suggestion is ingenious, and it has received the countenance of no less a person than Sii- James Mackintosh (a) ; but, to the best of my judgment, it is not supported by the known facts. In the first place, the ofGcers specially entrusted with the framing of the writs which issued out of Chancery, were the clerks or masters in Chancery, who are specially mentioned in the Act of Edward I. (b) ; (a) Life of Sir Thomas More, Misc. Works, vol. i. 453. (6) See p. 12, supra. 46 LECTURE n. and there is no ground for assuming that the chan- cellor exercised any personal supervision in the matter. In the next place, a hypothesis, which assigns to the chancellor the part of taking the initiative, is quite iaconsistent with the forms of the old petitions. If one might ventm'e to offer another hypothesis^ connectiag the chancellor's equitahle jmisdicticBi with his position as head of the great " qfficina justitice," it would be that the clerks in Chancery, upon being applied to for writs, informed the suitors that they knew of none apphcable, and suggested a petition to the chancellor for redress. This, however, is conjee-, ture merely. But even assuming that the equity jurisdiction ac- quired by the chancellor was partly due to his position as chief officer of the court from which all writs issued, his acquisition of jurisdiction as an equity judge seems mainly traceable to facts which are historically upon record. The chancellor was, as you know, the confidential adviser of the monarch ia aU important matters (the keeper of the king's conscience, he was called), and pre- eminently the fittest person to take into consideration petitions of the subject praying for the special exercise of the monarch's grace. Petitions of this class were (as appears from the ordinance of Edward I., which I read to you) frequently addressed to the king in parliament, and were, according to the words of the ordinance, to be brought before the king himself. Other petitions of a similar kind were, doubtless, presented to the king in LECTUEE II. 47 council, or to the monarch himself (a). These matters of grace were, dming the reigns of the first two Edwards, frequently, though not invariably, referred to the chancellor. The first distinct recognition of the chancellor as the proper person to deal with matters of this class, is in the 22d year of Edward III. In that year we find a writ addressed to the sheriffs of London by the king in something hke the following words : — ■ " Being daily occupied in various matters concerning " ourselves and the estate of our kingdom of England, " we will that those having in future matters to pro- " secute before Tis, concerning either the common law " or our special grace, do prosecute the same affairs as " foUows ; that is to say, matters relating to the common " law before the Venerable Elect of Canterbury, our " Chancellor, to be despatched by himself, and other " matters to be granted as of grace, before the same " Chancellor, or our beloved Clerk Keeper of the Privy " Seal, &c. (&)." The matters relating to the common laiv here men- tioned are those heads of common law jurisdiction belonging to the chancellor, which formerly were of considerable importance, and which are detailed in the (a) There is an instance at p. xvi. of the collection of early bills pre- fixed to- the first volume of the Calendars in Chancery, of a petition to the monarch himself. It is of so late a, date as Henry T. , and appears to have "been referred by him to the Chancellor. (J) Translated at 1 Story, Equity Jurisprudence, § 44, note ; and also in "Legal Judicature in Chancery Stated," where also the original is given in Latin. But the more accurate version of the writ is doubtless that at p. xxviii. of the Introduction to the Kot. Lit. Claus., published by the Eecord Commission. 48 LECTURE n. chapter of Blackstone recommended for your perusal at the end of my first lecture (a). The matters of grace are obviously those specially calling for equitable inter- ference of the Crown. We cannot, then, be surprised that, after the chan- cellor had been thus distinctly pointed out by the Crown as the proper person to deal with these matters of grace, the practice should have grown up amongst the suitors of applying to the chancellor directly by petition, instead of indirectly through the king in council. Accordingly, as appears from the collection of biUs or petitions to which I referred in my last lectm'e (&), petitions directed to the chancellor himself were in common use in the reign of Eichard II. Indeed, whatever difficulty there may be in tracing the precise steps of the process by which the chancellor acquired his equity jurisdiction, nothing is clearer than that it was firmly estabhshed in the reign of Richard II. This is proved, not only by the precedents of petitions before referred to, but by the terms of the statute of the seventeenth year of that monarch's reign, which runs thus : — " Item, Forasmuch as people be compelled " to come before the Hng's council, or in Chancery, by " writs grounded upon untrue suggestions, that the " chancellor for the time being, presently after such " suggestions be duly found and proved untrue, shall " have power to ordain and award damages, according (a) Bl. Com. vol. iii. 48. See 12 & 13 Vict. cap. 109, regulating the practice of tlie commOD law side of the Court of Chancery. This common law jurisdiction is by section 16, snh-sect. 1 of the Judicature Act 1873 transferred to the High Court of Justice. (5) See p. 15, supra. LECTURE n. 49 " to his discretion, to him which is troubled unduty, as " afore is said (a)." It is from this statute that the equity courts, even at this day, derive their power of awarding costs. We have now traced the establishment of the Chan- cellor's equitable jurisdiction ; but there still remains one of the seven judges to whom I introduced you in the outset, whose judicial functions have not yet been noticed. You recollect that, in my first lecture, I spoke of the Clerks ia Chancery, whose busiaess it was to frame the original writs in common law actions. The Master of the EoUs was the chief of these clerks. He was also a dignitary of considerable importance, a conservator of the peace, and had various important duties committed to him, in connexion with the custody of the re- cords (6). "Whether he had originally an independent jurisdiction in equity cases, is a point upon which those most competent to express an opinion have dif- fered very widely. To the best of my judgment, he had not ; and the following appears to me to be a correct representa- tion of the gradual acquisition of his present judicial power. In discussing hitherto the Chancellor's equitable jurisdiction, we have spoken of the Chancellor as if he were the sole judge in equity. And so he was in his own court, technically. Practically, however, the Chan- (a) 17 Rio. 11. cap. vi. (5) The jurisdiction of the Master of the EoUs in relation to Records is by section 17, sub-sect. (6) of the Judicature Act, 1873, preserved to him. 50 LECTURE n. cellor never sate in early times without calling to his assistance either the Master of the Eolls or some others of the Clerks in Chancery, commonly some of those amongst them who, as the practice of appointing eccle- siastics fell into desuetude, happened to be doctors in civil law. When thus summoned, the Master of the EoUs and the other masters sate really as assessors to the chancellor. They had no voice in the judgment, but assisted him with their advice. That the system was in full vogue in Bacon's time, is clear from the thirty-eighth aphorism in his treatise " T>e Augmentis," in which, speaking of the Curise Prastoriae (Chancery Courts), he expresses his opinion that the jurisdiction ought not to be confined to a single judge. He says, " At curiae illee uni viro ne committantur, sed ex pluri- " bus constent " (a). I believe I am correct in stating that, so late even as the chancellorship of Lord Brougham, it was usual for two of the Masters in Chancery to follow the Chancellor into court on the first day of term, and take their seats, or prepare to take then' seats, on the bench by him ; whereupon the Chancellor, ceremoniously bowing, dismissed them from further attendance. Lord Brougham first discontinued the ceremony. The earliest judicial attendances of the Master of the EoUs would seem, then, to have been merely as assessor, just as in the case of the other Masters. It was also usual for the Chancellor to refer causes to the Master of the Eolls, and to the other Masters, to de- termine particular points, or to investigate particular (a) De Augmentis, lib. Tiii. aph. 38. LECTURE n. 61 questions. Even demurrers used before Lord Bacon's time to be referred to the Master of the Eolls and to the other Masters. In Queen Elizabeth's reign a practice was introduced of issuing commissions author- ising the Master of the Eolls and others, commonly certain of the Masters in Chancery, to hear causes during the absence of the Chancellor. And under the authority of similar commissions, the Masters of the Eolls continued to sit as judges until the reign of George II. The judicial authority of the Master of the Eolls was, however, limited by some special exceptions, which seem conclusively to negative the notion of its having an original independent existence. Thus, Lord Bacon had, upon taking his seat as Lord Keeper, announced his intention not to refer demurrers or pleas to the Master of the Eolls ; and it is an admitted fact that the Master of the Eolls never heard demiu-rers or pleas. A similar exception existed as to motions, which the Master of the Eolls never heard. On the other hand, it must be owned that some slight indicia of an independent judicial authority are to be found. For instance, bills appear to have been occasionally addressed to the Master of the Eolls at an early date. Thus, in the selection of petitions already referred to, there is an instance (the precise date is not known, but it is supposed to be of the reign of Henry VI.) which runs thus : — " To my fuU honourable " and right worshipfull Maister, my Mayster the Gierke "of the EoUs" (a). But however this may be, it is (a) Calendars of Proceedings in Chancery, vol. i. p. lix. B 2 52 LECTUEE II. certain that, during the period which elapsed from the first estahlishment of the equity jurisdiction to the reign of George II., the Master of the EoUs gradually departed more widely from the position of a Master in Chancery, and assumed more and more that of an independent judge. In the early part of George the Second's reign, a vigorous controversy arose respecting the judicial status of the Master of the EoIIs. The more immediate cause of this controversy was a somewhat unseemly collision between Sir Joseph Jekyll, the then Master of the Eolls, and Lord King, then Lord Chancellor, Sir Joseph having ordered the registrars of the court to draw up his decrees without requiring the names of two other Masters to be added in the margin, and the Lord Chancellor having directed the registrars to stop all decrees of the Master of the RoUs which were wanting in the usual addition of two Masters' names. It was contended on the one hand that the Master of the Eolls was entitled to exercise, and had, ever since the existence of the Court of Chancery, exercised the functions of an independent judge : and on the other, that the Master of the EoUs had no other judicial authority save that derived by him either from and through the Lord Chancellor, or through the com- missions before referred to. The first view was sup- ported by Lord Hardwicke, then Sir Philip Yorke, Attorney- General (who was connected by marriage with Sir Joseph JekyU, the then Master of the EoUs), in an anonymous treatise, entitled " A Discourse on " the Judicial Authority of the Master of the Eolls : " LECTURE II. 53 the latter view was maintained in the treatise Imown as " The Legal Judicature in Chancery Stated," which is said to have been written by Mr. Burrough, one of the Masters in Chancery, with the assistance of the afterwards celebrated Bishop Warburton, then a young man (a). The question, so hotly discussed, was shortly afterwards set at rest by legislative interference; but the controversy of the day bore rich lasting fruit, and the treatises themselves still rank amongst the most valuable storehouses of an- tiquarian information respecting the Court of Chan- cery. The legislative interposition alluded to was effected by the 3rd George II. cap. 30, which enacted as follows : " That all orders and decrees made by the present " Master of the RoUs or any of his predecessors, or '■ hereafter to be made by the present Master of the " EoUs or any of his successors, except orders and " decrees of such nature and kind as, according to the " course of the said court, ought only to be made by " the Lord Chancellor, Lord Keeper, or Lords Com- " missioners of the Great Seal, shall be deemed and " taken to be valid orders and decrees of the said Court " of Chancery, subject nevertheless to be discharged, " reversed, or altered by the Lord Chancellor, Lord " Keeper, or Lords Commissioners of the Great Seal for " the time being, and so as no such orders or decrees be " enrolled till the same are signed by the Lord Chan- (a) See biography of Warburton, prefixed to the edition of his works by Hurd, vol. i. pp. 8, 9. 54 LECTURE n. " cellor, Lord Keeper or Lords Commissioners of the " Great Seal." The words of the Act at once suggest a doubt whether it was well adapted to ascertain definitively the limits of the judicial authority of the Master of the Eolls ; since, by the exception introduced, it stiU left open the question what kind of decrees ought to be made by the Chancellor only ? Practically, however, I believe no doubt or question ever arose as to its construction. The Master of the Rolls continued to act as an independent inferior judge, capable of hearing a cause and maldng a final decree therein, subject only to appeal to the Chancellor, but unable to hear either demurrers, pleas, or motions, and sitting, if not as a matter of necessity, yet, in fact, in the absence onty of the Chancellor. I have been told that, in the latter part of Lord Eldon's time, the Chan- cellor and Master of the Eolls used to arrange their sittings something after the following fashion. The Master of the Eolls sate from nine to ten, commonty in plain clothes, to dispose of minor matters. At ten the Chancellor took his seat at Lincoln's Inn, and then the Rolls Court rose. The Chancellor sate till four, and the Master of the Eolls again at six in the even- ing. Of course these combined sittings did not occur daily. Neither the Lord Chancellor nor the Master of the Rolls sate every day. But finally, you will learn with some surprise, that although the Vice-Chancellor of England, a judge of inferior dignity, had, fi:om the first creation of his office, the power of disposing of every species of business of the court, it was not LECTURE II. 55 until the year 1833 (a) that the Master of the Eolls was placed on the same independent footing, and em- powered to dispose of pleas and demurrers, and hear motions. And now, gentlemen, having, to the best of my ability, introduced you to the high judicial function- aries of the court, it remains that I should, somewhat briefly, allude to other functionaries of lower rank, some mention of whom is necessary in order to con- vey an accurate conception of the constitution of the court. These are the Masters, the Accountant- General and his staff, the Registrars, the Examiners, and under the system lately introduced, the Chief Clerks. The first of these classes, the Masters, has nearly expired. A few members of the body stUl hnger in the neighbourhood of Southampton Buildings, but the ofiice and dignity will shortly become matter of history (&). The Accountant-General and his staff form (c) one of the most important elements of the court as actually constituted. You remember that, in my last lectm-e, I directed your attention to the broad practical distinction between the litigious and the administrative business of the court, and commented on the vast importance of the latter. Well, the Accountant-General's office may be esteemed the heart and life of the adminis- (a) 3 & 4 Wm. IV. cap. 94, s. 24. (6) The last acting Masters were filially released from their duties in August, 1860. (c) See note at p. 58, infra. 56 LECTURE II. trative functions of the court. It is, in fact, the machinery by which the court receives into its keeping and distributes again, at the fitting time, the vast sums which are subject to the trusts of wills and deeds, the provisions of which are carried out under the direction of the court. The best mode, perhaps, of conveying to your minds a fitting notion of the magnitude of the operations of this department of the court, will be to tell you that the total value of suitors' property in the custody of the Court of Chancery, amounts to about £50,000,000 (a). The Accountant-General's office is a thing of recent date. Previously to the year 1726, the custody of the suitors' money was entrusted partly to (a) The exact amount of stock and securities in Court on tlie 1st Octoter, 1853 (exclusive of stock bought -with suitors' cash), was ii,SiO,SiSl. Os. 8d. The amount of suitors' cash (including cash invested in stock for the better security of the suitors) was 3,239,2262. 18s. 5d. (see Return to Order of House of Commons, Parliamentary Paper 73, for 1855), which, after allowing a yearly increase of about one million (as to which see Judicial Statistics, 1863, England and Wales, Part II. xxiii.) would make the amount at the date of the Lecture (1857) between fifty-one and fifty-two millions. On the 1st of October, 1870, this amount had increased to nearly sixty-one millions (Judicial Statistics, 1871, England and Wales, Part. II. xxxii.). These figures represent merely the securities specifically belonging to, and cash owing to the suitors, and exclude the funds arising from accumu- lations made by the Court by purchasing stock with the suitors' cash not required by them to be invested, and investing and accumulating the dividends on such stock. These accumulations amounted altogether to upwards of two millions stock, of which one million was taken from the Court by the Government in 1865, and appropriated towards defraying the expense of new Courts of Justice, and the remainder in 1869. (See 32 & 33 Vict. cap. 91.) The fullest and most accurate information respecting the working of the Accountant General's Ofice is to be found in the report of the Chancery Funds Commission of 1864, and the Appendix thereto. LECTURE II. 57 the usher of the court, but chiefly to the difi'erent Masters to whom the different causes were referred. The Usher and Masters were considered, in reference to these moneys, as standing m the position not of trustees, but merely of bankers or debtors (a). The Masters commonly purchased their offices of the Lord Chancellor, and indemnified themselves by turning the suitors' money to profitable account. Such a state of things could not but terminate in shame and scandal. Accordingly, in the year 1725, it was dis- covered that some four or five Masters had, like the mass of the community, been afflicted with the South Sea mania, that they had speculated with the suitors' money, and were defaulters to a large extent. The ■discovery at once directed public indignation towards the then Chancellor, Lord Macclesfield, who had driven a more regular traffic than his predecessors in the sale of the Masters' offices. He was impeached, and sentenced to pay a fine of d£30,000. By a kind of rude equity. Lord Macclesfield's fine was applied towards making good the deficiency in the Masters' accounts ; and in order to guard against similar de- faults in future, the Accountant- General's office was created. ' The new system devised for the protection of the suitors may be shortly thus stated : — All moneys receivable by the Court of Chancery are paid into the Bank of England, to the credit of the Accountant- General. In the office of the latter, by an elaborate system of accounts, the evidence of what is (a) See Trevor v. Blucke, 6 De Gex, Maon. & Gor. 170. 58 lECTUEE II. due to each trust is carefully preserved ; and all pay- ments directed to be made by the court are effected through the medium of the Accountant- General, who re-demands from the Bank of England the necessary funds. A carefully devised system of checks and safe- guards effectually protects against fraud in procuring money out of court; indeed, complaiats have been sometimes heard that there is over-carefulness to a burdensome extent (a). Next let me mention the Eegistrars. On entering any of the courts of Chancery you will notice sitting underneath the judge, an ofiicial in wig and gown. This is the Registrar. His duties are, to sit in court, to attend to the causes argued and matters transacted sufficiently to appreciate their bearings, and to make a minute of the decree or order pronounced by the court. These officers exceed in number the number of courts. They attend in court according to a rota. When not in court, they are commonly engaged in settHng, in presence of (a) By "The Court of Chancery (Funds) Act, 1872" (35 & 36 Vict, cap. 44) the Office of Accountant-General is abolished, and the duties, powers, and authorities of the Accountant-General are transferred to her Majesty's Paymaster-General, for -whose default the Consolidated Fund of the United Kingdom is made liable to the suitors. The principal novelty in the Act consists in the establishment of what is called a deposit account, to which all uninTested cash of suitors will be placed, and when so placed will bear interest at the rate of 21. per cent, per annum (with the Income Tax thereon) ; the Consolidated Fund being made liable to make good the cash and interest, and the national debt of the country obtaining the benefit of the deposits, ultra the fixed interest. The iH-evious legislation, referred to in note (a), p. 56, ante, had giyen the country the benefit of the savings (or banking profits) made by the Court of Chancery : this Act gives, in effect, to the country any such future profits after providing the two per cent, interest. LECTURE II. 59 the solicitors or solicitors' clerks who attend upon them, the precise worduig of the orders and decrees, the materials for which are furnished hy their own minutes, hy the iadorsments on the hriefs of counsel, and, as respects minor pomts, by the agreements or admissions of the professional gentlemen ia attendance. It is stated by Mr. Hai-dy, in the preface to his catalogue of Lord Chancellors and other officers of the court, that there is evidence of the existence of these officers (the Registrars) so long ago as the year 18&8-; and they are /' distinctly mentioned under the names of "notarii sive " tabeUiones," in an order in Chancery of the time of Henry V. (a) The next officers mentioned by me were the Exa- miners. Then' duty was, until recently, of a very simple kind. Pre^dously to the reforms of 1852, the evidence in Chancery suits was taken by means of written interrogatories, prepared by counsel, and kept carefully secret until the time came for examining the witnesses. Then the witnesses attended at the Examiner's office. The Examiner read the written in- terrogatories, and, with the assistance of his clerk, took down the witnesses' answers. Now, as you are pro- bably aware, the examination is conducted before the Examiner, viva voce, in presence of the sohcitors and counsel on both sides (b). Of the functionaries of subordinate rank, the Masters (a) Sanders's Orders in Chancery, vol. i. p. 7 c. (b) Examination in chief is now ex parte; see Appendix, page xxii. The principal occupation of the Examiners at the present time consists in pre- siding at the cross-examination of witnesses who have made affidavits to be used upon interlocutory motions, or on motions for decree, or at chambers. 60 LECTURE II. alone remain to be mentioned. I said just now, that the office would shortly be matter of history only ; but some few of the facts connected with it seem of suffi- cient interest to deserve mention. The chief, if not the only, business of the Masters or clerks, in the earliest times of the existence of the office, was to prepare the original writs issuing from Chancery in common law actions. This has been already alluded to (a). You have also heard incidentally that the Master of the Rolls and one or two of the other Masters frequently sate on the bench with the Lord Chancellor, to assist him with their advice— as asses- sors, in fact. But the chief duties of the Masters in connection with the equity business consisted in con- ducting inquiries into matters referred to them by the Chancellor, and taking accounts. The history of the decline and fall of the Master's office has yet to be impartially written. No doubt the sins of that branch of the com-t were great ; and perhaps, if it were reaUy necessary to sacrifice a Jonah to the storm of popular discontent, the most offending member of the Chancery system was selected. However this may be, in 1852 arrangements were made for the extinction of the Masters' office ; the proposed substitute being, that the judges should themselves transact, in chambers of their own, the work (at least the legal work) formerly done by the Masters, the judges receiving the assist- ance of competent clerks, to whom should be left matters of mere routine, such as taking accounts. To the new system we owe the office of Chief Clerk, (a) See p. 11, ante. LECTURE U. 61 two (a) of whom are attached to each judge. It would be rash to express any very decided opinion respecting a system which has been so short a time at work ; but we may venture to indicate the actual gain and probable di'awbacks. And first, expedition has been gained ; — of this there can be no doubt. On the other hand, it is difficult to say that the original intention, that the judges should work their own business in chambers, has been fully carried out. The Chief Clerks, practically, have cogni- sance, in the first instance, of all matters, however im- portant the law involved may be ; and the increasing power of these officials cannot be viewed without some feeling of alarm. No doubt it has been stated dis- tinctly on the bench, that it is the positive right of the suitor to have every matter heard by the judge himself (b) ; but something more than this seems to be wanted, if I may presume to say so ; namely, a system of conducting the chamber business of the court, which, instead of compelling the suitor to claim the privilege of having his case adjudicated upon by the judge, should, as of course, bring before the judge himself the more important descriptions of business. Unless this be accomplished, the relief in getting rid of the delays in the Masters' office may, I fear, be seriously counterbalanced by new vital defects ; and our late reforms may afford another instance of the (a) The number has since been increased. (b) See Hayward v. Hayward, Kay's Kep., Appendix xxxi. ; Lewis v. Lewis, 3 Jur. N.S., 1290. 62 LECTUEE n. difficulty of driving out one evil without admitting another (a). The foregoing sketch of the court by which our equity jurisprudence is administered would he obviously im- perfect without some notice of the supreme court of appeal, by which the decisions of the Com-t of Chancery already spoken of are reviewed. I mean, of course, the House of Lords. The appellate jurisdiction of the House of Lords in equity causes is a singular instance of a jurisdiction successfully usurped, at a late date of our constitutional history, in defiance not only of all principle, but of a previous report of a committee of the usurping body. And, first, as respects principle. Theoretically, the Crown is the fountain of all justice. And, in accordance with this the true principle, the appellate jurisdiction of the House in common law suits is based upon a writ of error from the Crown, suggesting information that the proceedings in the common law courts are erroneous, and calling upon the House of Lords to review the record. This principle, according to which all justice flows from the Crown, applies, perhaps, more strongly to suits in Chancery than to any other legal proceedings ; for the Chancellor really sits [a) It cannot be said that these remarks are less tnte than they were when made, seventeen years since. The Judicature Commissioners in their first report (1869), express themselves, in reference to this matter, thus : " It has been represented to us that this system does not give ' ' satisfaction, and that there is not sufficient judicial power to dispose of ' ' the business in Court and at the same time to give that personal ' ' attention to the business in Chambers which was contemplated when "references to the Judge in Chambers were substituted for the old "references to the Masters in Chancery." LECTURE II. 63 as the King's deputy (a), and the Court of Chancery is so essentially the King's coui-t, that in suits to which the Chancellor is a party, or when there happens to be no Chancellor or Keeper of the Seal, the proper course is to address the biU " To the King's Most Excellent " Majesty in his High Court of Chancery," instead of to the Lord Chancellor. Under these circumstances, the existence of a right of appeal to the House of Lords, without anj^ intermediate action or motion on the part of the Crown, is theoretically absurd. It amounts to a right of appeal from the sovereign to one branch of the realm.. But however this may be, the right is weU established. The suitor who is aggrieved by the decision of the Court of Chancery simply pre- sents his petition of appeal, addressed — " To the " Eight Honourable the Lords spiritual and temporal " in Parliament assembled," who thereupon proceed to adjudicate. But further, the circumstances imder which the juris- diction was usurped, render the usurpation still more extraordinary. The want of a court of appeal from the equity decisions being felt so early as Elizabeth's time, the matter was referred to the judges, who certified that the Queen might on petition refer a decree of the Court of Chancery to the judges, to examiue and reverse it. In the time of James I., an attempt was made to establish a right of appeal by petition to the House of Lords ; but a committee of the House itself reported as foUows : — " That divers lords of their sub-committee {a) See the instance mentioned supra, p. 47, note (a), of a. petition to the monarch himself. 64 LECTURE n. " (appointed to search for precedents) cannot find that " the word 'Appeal ' is usual in any petition for any " matter to be brought in hither ; but they find that " all matters complained of here were by petitions only, " the ancient accustomed form thereof being, ' To the " ' King and his Great Council '" (a). In fact, there was no precedent. In the reign of Charles II. we find the House of Lords involved in violent disputes with the Lower House respecting not only the as- sumed jurisdiction in appeals from the Court of Chancery, but also respecting the right then arrogated by the House of Lords of entertaining suits not merely as a court of appeal, but as a court of original jurisdiction. The ultimate result of these disputes was, that the House of Lords abandoned the latter claim; and its usurped jurisdiction in Chancery Appeals was tacitly submitted to and gradually established. It is instructive to observe the retributive justice which has pursued this usurpation. The appellate jurisdiction in common law suits has, with the assist- ance of the common law judges, been not altogether unsatisfactorily exercised. That from the equity courts has been a continual subject of grievance. In Lord Eldon's time, it was complained that Lord Eldon in the House of Lords affirmed Lord Eldon's judgments (a) Printed Journals of House of Lords, vol. iii. p. 189. Dec. 10, 1621. The report continues, " And they cannot find but only one precedent of ' ' this nature, -which was a complaint, by petition, against Michaell de la "Pole, Lord Chancellor, for matter of corruption." LEoruEE n. 65 in the Court of Chancery. In our own times we have seen the following result (a) : — 1. A decree by the present Master of the Eolls. 2. That decree affirmed by the court of appeal ; Lord Justice Knight Bruce being for an affirmance ; but the present Lord Chancellor (b), then Lord Justice, dis- senting. 3. The decree so affirmed reversed in the House of Lords by the present Lord Chancellor and Lord Brougham; Lord St. Leonards dissenting. Thus in the end the opinions of Lord St. Leonards Lord Justice Knight Bruce, and Sir J. Eomilly were overruled by those of the present Lord Chancellor and Lord Brougham. It is difficult to be satisfied with a coui't of appeal so organized as to admit of such a result. And that the efibrts lately made to obtain a more satisfactory consti- tution of the ultimate court of appeal of the kingdom will be renewed, cannot, I conceive, be doubted (c). Gentlemen, my necessarily imperfect sketch of the history and constitution of our equity tribunals must end here. I have, in this lecture, done my best to (a) The case alluded to was Money v. Jorden, 15 Beavan, 372 ; 2 De Gex, Macn. & Gor. 318 ; 5 House of Lords Cases, 185. (6) Lord Cranwortli was Chancellor at the time of the delivery of the lectures. (c) By Section 20 of the Judicature Amendment Act, 1873, the appel- late jurisdiction of the House of Lords is in effect abolished so far as respects English causes, but the operation of the Act is suspended and the general question of providing a fitting appellate tribunal for the United Kingdom generally, though still unsettled, will, it may be hoped, be determined in the Session of 1875. 66 LECTUEE II. convey to you some idea of the machinery itself by which equity jurisprudence is administered. In my next lecture it will he my endeavour to show you this machinery actively in motion. LECTUEE III. The present lecture, gentlemen, is intended to com- plete what I may caU the first division of my course. It wiU. be m.y object this evening to convey to you some general notions respecting the procedure of the Court of Chancery, — to show you, in fact, the method by which the courts described in my last lecture admi- nister the system of jurisprudence which was somewhat faintly and imperfectly shadowed forth in my first. Obviously, wherever there is a system of jurispru- dence and a staff of judges to administer it, the latter must be guided in their administration by some fixed and definite rules. St. Loiiis, King of France, sitting under an oak at Vincennes, and dispensing justice to his subjects in person, presents a picture which, how- ever delightful, cannot be made a reality in modern times. To guard against sm'prise by either litigant party upon the other, written statements of the grounds of complaint of the plaintiif, and grounds of defence of the defendant, are indispensable ; and to ensure the orderly conduct of proceedings, regulations for the guidance of suitors must be laid down. In fact, there must be written pleadings and rules of practice, or what I may term in its entirety a code of procedure. F 2 68 LECTURE ni. Now, in reference generally to the subject of pro- cedure, I would observe that it is impossible to deter- mine in the abstract that any particular system of pro- cedure is best. The procedure must depend, to a great extent, on the nature and constitution of the tribunal, the working of which it is intended to regulate. For instance, we have iu this country, in full operation, two systems of pleading and practice — that of the common law and that of equity^differiag most widely ; and yet liaving regard to the essentially different constitutions of the two tribunals, we cannot fail to see that each, notwithstanding its particular advantages and disad- vantages, is best adapted for its own judicature. It will, I think, be not uninstructive if, before pro- ceeding to the particular subject of this evening's lec- ture, I point out very briefly the broad differences between the common law and equity jurisdictions in reference to the constitution of the tribunals and method of procedure. In regard to the constitution of the tribunals, the distinctive feature of the common law is, that the judicial duties, instead of resting whoUy with the judge, as in equity, are parcelled out between the judge and jury. In the equity courts, the judges are judges of matters of fact as well as of matters of law (a). At com- mon law, the jury are the judges of fact, and only the law is left for the decision of the judge or court. Thus, supposing an action at law to involve the two following (a) Since the above was -written, provision has been made by statute or trying questions of fact in Chancery by a i. Montolieu, 5 Vesey, 737 ; Buncombe v. Green- acre, 28 Beavan, 472 ; 2 De Gex, Fisher, & Jones, 509. (c) See Greedy v. Lavender, 13 Beavan, 62 ; also Scott v. Spashett, 3 Macn. & Gor. 699. {d) The Session of 1857. LECTURE IV. 127 husband can confer a title only as against himself in the event of his surviviag. So soon as the doctrines of equity on this point were settled, which it may be said they were finally by the gTeat case of Pur dew v. Jackson (a), a period of continued attempts to evade the effects of the doctrine followed. Thus, where the wife's interest was rever- sionary, the husband bought the hfe estate, procured as assignment of it to the wife, and then sought to treat the wife's interest as immediate, and capable, therefore, of being reduced into possession. It may be said, briefly, that all devices of this description received their deathblow by the decision in Whittle v. Henning (b). Whether the inconvenience created by the joint operation of Purdew v. Jackson and of this decision, in rendering certain descriptions of property practically inalienable, did or did not outweigh the advantage of securing to the wife one species, at least, of possession which the husband, to adopt an expressive phrase, could not even beat out of her, has been much de- bated. The Legislature has, however, lately decided in favour of freeing this description of property from the fetters thus imposed upon its ahenation. In the last session of Parliament an Act (c) was passed enabling married women to dispose of their rever- sionary interests in personal estate. The provisions of this Act are shortly as follows : — By section 1, married women may by deed dispose {a) 1 Uussell. 1. (6) 2 Pkillips, 731. (c) 20 & 21 Vict. cap. 57 ; known aa Malins' Act. 128 LECTUEE rv. of reversionary interests in personal estate acquired under any instrument made after the 31st day of De- cember, 1857. By section 2, it is provided that the deed to be exe- cuted by the married woman shall be acknowledged by her in the mode prescribed by the Act for the Aboli- tion of Fines and Eecoveries, thus securing to her the benefit of a separate examination. By section 3, the powers of disposition given by the Act are not to interfere with any other powers. By section 4, interests acquired by married women, under their marriage settlements, are excepted from the operation of the Act. It is obvious, that as the Act extends only to interests acquired by married women under instruments made subsequently to December 31, 1857, its operation must, for some time at least, be very limited. Before parting with this subdivision of my subject, let me warn you against confounding the two questions, of the wife's right by survivorship, and the wife's equity to a settlement. It is by no means uncommon to find considerable confusion of ideas in this respect. The wife's equity to a settlement arises only when the fund is ready to be reduced into possession. It may be waived by the wife. This, where the fund is within the control of the court, is commonly done by the wife attending before the judge in open court, when she steps up to the bench, the judge satisfies himself, by a few words of conversation, that the wife understands what is about to be done, and is willing that her husband should have the fund, and thereupon, as the phrase is. LECTURE IV. 129 " takes her consent" (a). If the wife cannot attend in court, her consent may be taken by commission; and I may observe, that in reference to interests acquired under instruments made after the 31st of December, 1857, the wife maj^, by deed acknowledged, release her equity to a settlement. On the other hand, the right by survivorship is one of which, except so far as the Act of 1857 applies, the wife cannot deprive herself by any act during the coverture ; and any de\ice by the husband for the purpose of ac- celerating the period of possession is, as we have seen, treated by the court as a fraud on the wife's rights, and wholly ineifectual. In concluding this my third subdivision, it will be well to notice, that both the capacity to have a sepa- rate estate, which I have not touched upon, and the peculiar rights of married women embodied in the special equitable doctrines, which I have attempted to explain, are equally ignored by courts of law (b), and that the jurisdiction of equity in this respect is strictlj^ a head of exclusive jurisdiction. (a) When the fund to be dealt with is under 2001., the court was in the hahit of paying the fund to the husband, without requiring the consent of the wife to be evidenced in this formal manner. The selection of 200/. as the limit within which the operation of Section 7 of the Act of 1870 ia (as to money coming under a deed or will) confined, was doubtless determined by this circumstance. Where Section 7 of the Act applies, the payment must now be to her on her separate receipt. Where the marriage is prior to the Act, the old practice must prevail, but the wife will still have, as she always had, an equity to a settlement, however small the sum may be, which if she assert, instead of remaining merely passive, the court will give effect to. — Re Kincadd, 1 Drewry, 326. (J) See now the Married Women's Property Act, 1870, of which a summary is given at pages 122, 123, ante. K 130 LECTURE IV. My fourth subdiYisioii, that of " Mortgages, Penalties, and Forfeitures," alone remains. Time forbids any- thing beyond mere general observations on this head of equity : and as respects general observations, I can add but little to what I said on this head in my first lecture (a). In a mortgage, the estate is conveyed to the mort- gagee, subject to a proviso for reconveyance upon pay- ment of a sum of money on a day named. The money is not paid. At law the mortgagor has then no longer any right. In equity, however, it is held he has still a right to redeem. Again, where a bond was given, in a certain penalty, to secure the payment of a smaller sum on a day fixed, and the sum was not paid, at common law the obligee was entitled to the whole amount of the penalty ; though, as you know, not in equity. Again, a lease is made, reserving a certain rent, and a right of re-entry is given to the lessor if the rent be not paid punctually within a certain time after the day stipulated. It is not paid. The lessor proceeds to eject the lessee. The latter files his bill, tendering the rent, interest, and costs, and the court relieves the lessee on those terms. In my first lecture I pointed out to you the great difiiculty of justifying logically the exercise of this head of jurisdiction, in its origin (a). The tendency of later times, however, has been to incorporate into the com- mon law, either by statute or decision, the equitable doctrines on these subjects. (a) Pp. 21—23, supra. (6) p. 23, supra. LECTURE ly. 131 Thus, as respects mortgages. No one thing can be more purely the creatm-e of the courts of equity than the equity of redemption, or right to redeem. Yet we find it, by a statutory enactment of the reign of George II. (a), made a subject of common law juris- diction. By this Act, when an action by mortgagee against mortgagor is pending at common law, either for recovery of the mortgage-money or for ejectment, the mortgagor may bring his principal and interest into court, and the common law court has power to compel a re-conveyance ; and thus, under this Act, the common law courts may, and occasionally do, in substance de- cree a redemption. I cannot say that the statute is often called into operation. It only applies, in truth, where nothing is to be done but to compute the prin- cipal and interest due. I have, however, in practice known one instance of its being resorted to (b). Again, as respects penalties, the statute 8 & 9 Wniiam III., c. 11, providing, in the case of bonds given for securing the due performance of covenants, a special machinery for ascertaining the damage actually sustained by reason of any breach or breaches, and for allowing the judgment for the amount of the penalty of the bond to remain as security against any future breach is well known. So is the provision in the 4th & 5th Anne, c. 16 (c), which allowed the obligor in a (a) 7 Geo. 11. cap. 20. (i) See, as to the kind of notice requisite to oust the statutory jurisdic- tion, Doe V. Louch, 14 Jurist, 853 ; and see, too, ss. 219, 220, of the Common law Procedure Act, 1852 ; the object of which enactments probably was to obviate any questions respecting the applicability of the 7th Geo. II. to the new action of ejectment. (c) Sect. 13. K 2 132 LECTURE TV. simple money bond to pay into court, after breach, the principal and interest due, and all costs, in full satis- faction of the penalty of the bond, which at common law was a^olutely due. But, further, the mode in which the common law courts have, in recent times, embodied in their own decisions the equitable doctrines on this head, is ex- tremely remarkable. I refer to the class of decisions establishing the distinction between penalty and liquidated damages, of which Kemble v. Farren {a), may be regarded as the leading case. Thus, where the parties to a contract agree, that in the event of a breach of some or one of its stipulations, the party guilty of such breach shall pay to the other a given sum, the court looks at the whole agreement for the purpose of ascertaining whether the fixed sum appears to be intended as a penalty, or as fixed or liquidated damages. If the former, then the plaintiff may, in respect of the breach, recover only the damages actually sustained by him, as assessed by the jury. If the latter, the liquidated sum itself is recover- able. In the leading case just mentioned, there was a distinct stipulation that the sum named, 1,000Z., should be liquidated and ascertained damages, and not a penalty or penal sum or in the nature thereof; and yet the court, looking at all the circumstances of the agreement, held the sum named to be a penalty (6). It only remains that I should observe, that the (a) 6 Bingham, 141. (6) The whole law on the point will be found well collected in Chitty on Contracts not under Seal, chapter yi. LECTURE IV. 133 modifications introduced into the common law, both by statute and decision, though practically giving to the common law a qualified jurisdiction in reference to this last subdivision of our subject, have appeared to me too limited in extent to form any substantial objection to including " mortgages, penalties, and for- feitures" amongst the heads of " exclusive jurisdic- tion." My first main branch of exclusive jurisdiction is now ended ; and I proceed to the second, which embraces those cases in which a gwasi-patemal jurisdiction is exercised by the Court of Chancery for the protection of persons under disability. Persons not " sui juris" may be ranged under one of the three classes of married women, lunatics, and infants. As respects married women, it is difficult to say that courts of equity exercise any jurisdiction of a strictly protective character over them. There exists, no doubt, a jurisdiction under which, upon the wife suing out what is called a writ of supplicavit, the Court of Chan- cery may afford her the same kind of relief as would be afforded in a common law court, upon her exhibit- ing " Articles of the Peace" against her husband. But this jurisdiction, now practically obsolete, is not con- fined to married women, but may be exercised in favour of any person, " sui juris" or not. Again, in reference to those personal rights of the married woman against her husband, which flow more particularly from the marriage contract ; the remedy of the wife has hitherto always lain in the Ecclesiastical Court, and will, upon 134 LECTURE IV. the Divorce and Marriage Act of last session (a) coming into operation, lie in the " Court for Divorce and Matri- monial Causes." Respecting lunatics, I abstain from saying anything now, as the jm'isdiction in lunacy is of a special nature, and will receive a separate consideration (b). The protective jurisdiction of the court over infants alone remains. How far this jurisdiction was or was not legitimately assumed by the chancellor, has been hotly debated. Mr. Hargrave, in his well-known note to Coke Littleton (c), under the head " guardian by the appointment of the chancellor," maintained strenuously that the jurisdiction was simply usurped. Mr. Fonblanque, on the other hand, in a note of almost equal celebrity appended to the " Treatise on Equity (ci)," refers the general super- intendence and protective jurisdiction of the coin-t in the case of infants, to a delegation of the duty of the Gvown&s" parens patrics." The controversy (e) is, how- (a) 20 & 21 Vict. cap. 85. (6) The course embraced one lecture on lunacy, wMcIi is excluded from this series, for reasons of little interest to the reader. The Judicature Act, 1873, section 17, amongst excepted jurisdictions not transferred to the High Court, mentions the following : — "Any jurisdiction usually vested in the Lord Chancellor or in the " Lords Justices of Appeal in Chancery, or either of them, in relation to " the custody of the persons and estates of idiots, lunatics, and persons of " unsound mind." (c) 88 b. note 70. (d) Book II. part ii. ch. ii. o. 1, note (a). (e) The fusion of jurisdictions effected by the Judicature Act, 1873, has rendered this controversy more than ever unimportant ; and the Act by section 34, assigns to the Chancery Division all causes and matters for "The wardship of infants and the care of infants' estates." LECTUBE IV. 135 ever, not as to the existence or limits of the jurisdic- tion, but merely as to its origin. I am compelled to condense into few words the practical results in reference to the protective jurisdic- tion of the court over infants. The first observation is, that the possession of pro- perty by the infant is not actually necessary to sustain the jurisdiction, though, without property, it cannot usefully be called into exercise. The remarks of Lord Eldon on this point, in the great case relating to the custody of Mr. Long Wellesley's children {a), re- ported at the original hearing before him, should be read with the greatest care. Secondly, where the property was small, the court was in the habit of exercising its jurisdiction to appoint a guardian, and direct maintenance upon petition, without bill filed ; and this jurisdiction it now, under the new practice, exercises at chambers, upon summons (&). Thirdly, the power of the court was paramount even to that of the father ; the court taking upon itself to deprive even the father of the custody of his child, whenever the father's conduct rendered it desirable for the best interests of the infant that that step should be taken. This was the great point decided in the case of Mr. Long "Wellesley's children. The obser- vations of Lord Eedesdale in this case, when on appeal (a) Wellesley v. Diike of Beaufort, 2 Russell, 1 ; see pp. 20, 21. It is a common practice, -when it is desired to make an infant a ward of court, to vest some small sum, say 1001., in a trustee for the benefit of the infant, and then to file a bUlln the name of the infant against the trustee. See the practice noticed in Gfumey*. Qumey, 1 Hemming & Miller, 419, 420. (5) See Mr. Barber's Statement, Appendix, p. xxxbc. 136 LECTUEE IV. before the House of Lords, cannot be too carefully studied (a). Fourthly, the power of the court being paramount to even that of the father, d fortiori it is so to that of all guardians, including testamentary guardians, appointed by the father's will under the statute of Charles II. (b). With these extremely meagre observations on a subject which, by itself, would afford matter for an extensive treatise, I must conclude my notice of the exclusive jurisdiction of the court. (a) Reported on appeal, Wellesley v. WeEesley, 2 Bligh, N. S; Subject only to the power of the court, that of the father was at the time of this decision absolute eTen as against the mother, and however young the child. Subsequently, by 2 & 3 Vict. cap. 54, commonly referred to as Talfourd's Act, the Court of Chancery was authorised, upon the petition of the mother, to make in her favour an order for access to her infant child, and if the child were under seven years old, to commit the custody to her until that age. This Act was repealed by the 36 & 37 Vict. cap. 12, which authorises the Court to commit the custody of any infant to its mother up to the age of 16, after which period the infant would (subject to the para- mount authority exercised by the Court of Chancery over its own wards) have a right of choice. (See re Andrews, L. R. 8 Q.. B. 153, p. 159.) (6) i.e., 12 Car. ii. cap. 24, s. 8. LECTUEE V. In reviewing the concurrent jurisdiction of the Court of Chancery, I propose adopting the following arrange- ment : — First, I shall submit some general observations in reference to the sources of equity jurisdiction, known as Fraud, Accident, and Mistake, pointing out how far they contribute to the concurrent jmisdiction of the court ; and — Secondly, I shall touch, seriatim, upon the more im- portant heads of concurrent equity jurisdiction, which, while subsisting independently altogether of the general sources just referred to, wiU be found, in most cases, to owe their origin and vitaHty to the superior efficacy of the remedy administered by the Court of Chancery. Now, as respects the first part of my task, I would observe, that any one of the three ingredients, fraud, accident, or mistake, may occur in any kind of suit ; in a suit relating to equitable interests or estates, over which the Court of Equity has exclusive jurisdiction, just as in a suit in which the interests involved are purely legal, and the jurisdiction concurrent only. In the former case, however, the jurisdiction in equity 138 LECTUEE V. being already established on distinct grounds, the pre- cise influence of the particular ingredient of "fraud," " accident," or " mistake," in attracting the interpo- sition of equity, is comparatively little noticeable. In the latter, where it is the very foundation of the juris- diction, its exact effect and weight can be traced and estimated. This, I conceive, is the reason why we find fraud, accident, and mistake commonly discussed under the head of concurrent jurisdiction. Now, going back to the earliest discussions respecting the interposition of equity, we find it repeatedly stated, that " covin, accident, and breach of confidence," are the proper subjects of equity jurisdiction {a). There was a doggrel rhyme in vogue expressing the legal views on the subject : — " Three things are judged in conrt of conscience : Covin, accident, and breach of confidence.'' The last of these three, breach of confidence, we have ah'eady, as you know, considered under the head of " trusts," the modern equivalent for the word " covin" is "fraud." AsxA. fraud ^re now proceed to consider, together with accident (also referred to by Lord Coke) and mistake, which, to the best of my belief, is not mentioned as a head of equity, either by him or by any other text writer of ancient date. Taking, then, fraud, accident, and mistake in the order mentioned, it is first to be observed that, when discussing "fraud" under the head of concurrent (a) See 4 Inst. p. 84. LECTUEE V. 139 equity jurisdiction, we have, in strictness, no concern with, those cases of constructive fraud, which rest upon doctrines forming part of almost every system of civi- lised jurisprudence, but yet ignored by the common law of England : I mean the doctrines, accordrag to which a special disabihty is imposed, in reference to the dealings, whether in. the nature of contract or of gift, of persons standing towards one another in certain confidential relations ; such as solicitor and client, guardian and ward, trustee and cestui que trust. • Thus, by the Eoman law, the tutor (or guardian) was prohibited from purchasing the pi-operty of his pupil (or ward), and a similar rule was apphed to those standing in a similar fiduciary position (a). So by the Code Napoleon the tutor (or guardian) is prohibited from either buying or taking a lease of his ward's property, without special authorization given by what is called the "conseil de famille," the family council, composed of the near relatives of the ward (&). Our own equitable rule on the subject, in reference to gifts, was, in a case frequently quoted, thus referred to by Lord Eldon : " This case proves the wisdom of " the court, in saying that it is almost impossible, in " the course of the connection of guardian and ward, " attorney and client, trustee and cestui que trust, (a) Tutor rem pupilli emere non potest, idemque porrigendum est ad similia : id est, ad cui-atores, procuratores, et qui aliena negotia gerunt. — Digest xviii. tit. 1, 1. 34, s. 7. (6) Code Civil, § 450. Seealso§907, incapacitating tie tutor from taking by will or gift inter -vivos until after his accounts hare been rendered and passed, and, § 909, invalidating dispositions by will or gift inter vims made during a last illness in favour of medical attendants. 140 LECTURE V. " that a transaction shall stand, ptu-porting to be " bounty for the execution of an antecedent duty" (a). Laying out of account, then, these cases of " con- structive fraud," or " fraud in equity," we proceed to consider the equity jurisdiction in cases of fraud, in its popular or ordiaary sense of imposition or circum- vention; cases, ia fact, faUiag within the old legal term " covin," and which, in the modern text-books, such as " Story's Equity Jurisprudence," you will find ranged under the head of actual fraud" (h). Now, in these cases of actual fraud, the jurisdiction of equity was, in the main, strictly concurrent. The court of law took cognisance of the fraud, both as ground for a right of action and as a ground of defence. Thus, where money had been obtained through fraud, an action on the case lay for its recovery back ; and to any action brought upon an instrument obtained by fraud, a plea of fraud in obtaining it was a good defence. The equity jurisdiction, however, possessed many advantages over the lestal. Thus, in most instances of actual fraud, equity possessed the means of com- pelling the defendant to answer, upon oath, detailed interrogatories respecting aU the alleged facts and (a) Hatch v. Hatcli, 9 Vesey, 292. As respects the equitable rule in reference to "purchases," in cases where the relation is that of "solicitor and client," one of the most valuable judgments is that of Vice-Chanoellor Wigram, in Edwards v. Meyrick, 2 Hare, 60. As to the distinction between a gift inter vivos from a client to his solicitor and a testamentary disposition by the former in favour of the latter, see Hiudson v. Weatherill, 5 De Gex. Macn. & Gor. 301. The distinction applies d, fortiori to the relations of guardian and ward, and trustee and cestui que trust. (b) Story, Eq. Jur. vol. i. chapter vi. LECTURE V. 141 circumstances of the fraud, many of which facts and circumstances might be known only to the plaintiff and defendant; and this advantage alone would almost seem sufficient to have attracted into equity almost the entire jurisdiction in reference to fraud, when it is con- sidered that, until within the last few years, neither could tlie plaintiff be heard ks a witness to prove his own case, nor could he compel the defendant to attend and give evidence (a). Again, where the fraud had resulted in a deed actually executed, conferring some estate or right which might be asserted in futuro, what was really wanted was a judgment, directing the deed to be given up to the person defrauded or ordering it to be cancelled ; and this was a species of remedy which the law courts never took upon themselves to administer. You may recollect, perhaps, my pointing out in my first lecture, that the maxim that equity acts " in personam " forms one of the distinguishing features of the equitable jurisdic- tion (6). As an offshoot of this maxim, we find the equity courts, in the early times of Henry VI. and Edward IV., compelling the actor in the fraud to restore the fruits of his fraudulent conduct. If anything further were needed to establish the superior appropriateness of the equitable jurisdiction over the legal, it wiU be found in the circumstance, that the Equity Court is able, in conformity with its habitual mode of action, while setting aside and undo- ing the fraudulent transaction, to qualify the annulling (a) See this more fiilly treated in the next lecture, under Discovery. (5) Pp. 24, 25, supra. 142 LECTURE V. operation of its own decree in sueli a manner as may seem just. Thus, in the case of a bill to set aside a conveyance of real estate, as having been obtained by fraudulent representations at a grossly inadequate value — if the court sets aside the deed, it wiU do so only on the terms of repayment of the purchase money and interest. When we consider, then, the advantages of the Equity Court, in respect — first, of compelling dis- covery; secondly, of interfering actively to annul instruments fraudulently obtained ; and thirdly, of properly modifying its decrees and adjusting them to the rightp of all parties ; it can hardly be wondered at that its jurisdiction, though technically concurrent, should have become almost exclusive in practice. We pass to the consideration of Accident. There is hardly any head of equity which more completely eludes definition. General principles may, however, be laid down. And first, it is clear that, in reference to obligations flowing out of contract. Accident, using the word in its ordinary sense, constitutes no more in equity than at law any valid excuse for the non-performance of those obligations. Thus, if I contract to build a house by a given day ; and if, after I have proceeded for some time regularly in the performance of my contract, a considerable por- tion of the materials which have been prepared for enabling me to complete the house is, hy pure accident, without any default of mine (say, by a fire originating in lightning), destroyed, and that so shortly before LECTURE V. 143 the time fixed for completion that it is impossible to replace the materials, yet this constitutes no case of accident relievable in eqtiity. — I contracted simply to bmld by the time, and must abide by my con- tract. In the early history of our equity jurisprudence, a different view, doubtless, prevailed. Lord Coke illus- ti-ates "accident" thus: "Accident, as when a servant " of an obligor, mortgagor, &c., is sent to pay the money " on the day, and he is robbed, remedy is to be had in " this court against the forfeiture" (a). We find, in the Introduction to the Calendars of Proceedings in Chancery (b), an rastance in which the jurisdiction of the court appears to have been invoked on grounds of this kind. The plaiatifE haviag entered into a bond, under a heavy penalty, to repair certain river-banks near Stratford-at-Bow within a given time, had been prevented (as he alleged) from completing his contract by sudden and unexpected floods ; and the obligee in the bond having thereupon sued him at law for the penalty, the plaintiff brought his bill for relief. The answer of the defendant in equity in sub- stance asserts that the plaintiff might, with due dili- gence, have completed his contract. The final result of the suit does not appear ; but the bill probably reflects accurately the views of the day respecting equity. However, as we stated above, no (a) 4th Inst. p. 84. This passage confirms the Tiew put forward in the first lecture, p. 23, supra, that in the earliest instances of relief against penalties and forfeitures, the existence of some circumstance of accidental hardship formed a material inducement to the interference of the court. (6) Vol. i. p. cxlii. 144 LECTUEE V. accident of a similar description would, at the present day, afford ground for relief; and if we lay out of con- sideration the original influence of the ingredient acci- dent, in cases of penalties and forfeitures, the only two classes of cases in the equity jurisprudence of the pre- sent day which seem to me to be properly referable to the head Accident, are : — First. — The cases in which the equity jurisdiction is exercised in reference to lost instruments ; as where, upon a bond or negotiable instrument being lost, a court of equity will compel payment of the amount secured, either with or without the execution of a proper instrument of indemnity against the claims of third parties, into whose hands the lost instrument may have fallen (a). And, Secondly.— The cases of equitable relief against the defective execution of powers, — -a branch of equity far too subtle and intricate to admit of discussion on the present occasion {h). Mistake alone remains. Mistake may be said to exist in the legal sense, where a person acting upon some erroneous conviction, either of law or of fact, executes some instrument or does some act which, but for that erroneous conviction, he would not have executed or done. Now, in reference to " mistake," there is one point (a) See the new jurisdiction given to the common law courts, in cases of this kind, by 17 & 18 Vict. cap. 125, s. 87. See also, as to the distinction, in reference to the jurisdiction in equity, between the "loss" and the "destruction" of a negotiable instrument, Wright v. lord Maidstone, 1 Kay & Johnson, 701. (5) Sugden on Powers, 8th edition, chapter xi. LECTURE V. 145 upon which the doctrines of the common law and of equity will be found agreeing in the main both with each other and with the Eoman law. It is this, — that while mistake as to law affords no ground for relief, mistake as to fact does. Thus in the Digest, under the title "■ De juris et factiignorantia," we find the law thus laid down : " Eegula est, juris quidem ignorantiam " cuique nocere, facti vero ignorantiam non nocere (a)." And the iirst illustration, given at the commencement of the title, of the distinction between ignorance of law and ignorance of fact may be freely rendered thus : — "If a man be ignorant of the death of a kinsman whose property is about to be dealt with, time shall not run against him : otherwise, if he be aware of the death and of his own relationship, but ignorant of his con- sequent rights (&)." Of the existence of the rule, as part of our common law jurisprudence, the ease of Bilbie v. Lumley (c) affords an apt instance. There, an underwriter, with knowledge of a fact which would have entitled him to dispute his liability under a policy of marine insurance which he had underwritten, but in ignorance of the legal rights resulting from that fact, paid the amount which he had assured ; and subsequently brought an action to recover the money back. The Court of King's (a) Digest xxii. tit. vi. I. 9. (6) The words of the original areas follows : — "Nam si quis nesciat " decessisse eum, cujus bonorum possesslo defertur : non cedit ei tempus. ' ' Sed si sciat quidem defunotum esse cognatum, nesciat antem proximitatia " nomine, bonorum possessionem sibi deferri ; aut si, &c. : cedit ei " tempos, quia injure errat." (c) 2 East, 469. See also Kitchin v. Hawkins, L. R. 2 0. P. 22. L 146 LECrtfEE V. Bench held the action would not He. Lord Ellen - borough asked plaintiff's counsel whether he could state any case where, if a party paid money to another volun- tarily, and with fuU knowledge of aU the facts of the case, he could recover it back again on account of his ignorance of the law. No answer was given ; and his lordship subsequently said, " Every man must be " taken to be cognisant of the law ; otherwise, there "is no saying to what extent the ignorance might " not be carried. It would be urged in almost every " case." This short observation contains, I conceive, the true ground for the distinction between mistake of law and mistake of fact. Probably, in a very large number of transactions there is at best but an imperfect knowledge of the real state of the law ; and even where the know- ledge reaUy exists, few things could be easier to allege or harder to disprove than legal ignorance. Indeed, if mistake or misapprehension as to matter of law were admitted as a ground for reopening engagements solemnly entered into, it is difficult to see how any engagement could be relied on. It must however be confessed, that when we proceed to the consideration of the cases in equity respecting " mistake," we find occasionally the line of demarcation between mistake of law and mistake of fact less dis- tinctly drawn in equity than either by the Roman or by the common law. This has occurred more particu- larly in those cases where, under special circumstances, combined with legal ignorance of a very glaring kind, the court has been induced to grant relief, and has LECTUBE V. 147 apparently rested its judgraent more or less on the mistake or ignorance of law. The oft-mentioned case of Lansdowne v. Lansdoivne (a) is, perhaps, the fittest representative of this class of cases. There, the plaintiff, who was son of the eldest brother of a de- ceased intestate, had a dispute with his uncle, a j'ounger brother, respecting the right to inherit the real estate of the deceased. It was agreed to consult a schoolmaster, named Hughes, who, in his turn, resorted for counsel to a book called the " Clerk's " Remembrancer," and finding the law as laid down in the book to be, " that land could not ascend, but al- " ways descended," he put the best exposition he could on these somewhat ambiguous words, and decided that the younger brother was entitled. Therefore, it was agreed that the son of the elder brother and the younger brother, his uncle, should share the lands, and a bond and conveyances were executed for the purpose of carrying out the agreement. The nephew subsequently filed his bin to be relieved; and Lord King, Chan- cellor, decreed that the bond and conveyances had been obtained by mistake and misrepresentation of the law, and ordered them to be given up to be cancelled. Lord King is reported to have said, in delivering judg- ment (&), that " That maxim of law, Ignorantia juris " non excusat, was in regard to the Public, that Ignor- " ance cannot be pleaded in Excuse of Crimes, but did " not hold in Civil Cases." This, however, is clearly not law at the present day (c). (a) 2 Jacob & Walker, 205 ; o. t, Moseley's Reports, 364. (6) Moseley's Reports, 366. (c) The high authority of Lord Westhury, has, however, heen added to L 2 148 LECTURE V. The form of the decree in Lansdoume v. Lansdowne, - viz., that the deeds should be delivered up, leads me naturally to the consideration of the superior efficacy of the equity jurisdiction in eases of "mistake." Here, as in cases of " fraud," we find the power of ordering the delivering up of the impeached instrument, impart- ing to the equitable jurisdiction a completeness vainlj^ sought for at law. As respects the other ingredients of superiority which the equitable jurisdiction has been mentioned as possessing in cases of "fraud " over that at law, both of which exist also in cases of " mistake," we may observe, that while, on the one hand, the discovery obtainable through the medium of the equity courts only was, perhaps, of somewhat less importance in cases of "mistake;" so, on the other hand, the power to qualify, mould, and alter, instead of simplj"^ annulling and undoing, was, in cases of " mistake," of even greater importance. Take, as a specimen of mistake, the case of instructions given to prepare a settlement of the lands of a lady on the occasion of her marriage. Assume that, under special cii'cumstances, that of Lord King since the lectuies ■were delivered. In Cooper v. Phibbs, Law Rep. 2 H. L., 149, Lord Westbury expressed himself (p. 170) thus : — " It is said, ' Jgnorantia juris hcmd excusat,' but in that maxim "the word 'jus' is used in the sense of denoting general law, the " ordinary law of the country. But when the word 'jus ' is used in the " sense of denoting a private right, that maxim has no application. ' ' Private right of ownership is a matter of fact ; it may be the result also " of matter of law ; but if parties contract under a mutual mistake and ' ' misapprehension as to their relative and respective rights, the result is " that that agreement is liable to be set aside as having proceeded upon a "•common mistake." It is difficult, however, to reconcile this assertion with the passages in the Digest referred to at p. 145, supra, and others of a similar character. LECTURE V. 149 it had been arranged that, after limitations to the lady and her husband for their lives, the property should go to such uses in favour of the children as the wife alone should, by deed or wUl, appoint ; and that, inadver- tently, the power of appointment was given to the hus- band and wife and the survivor, in the usual form. Now, what is wanted is not to undo the settlement, but merely to alter it and make it what the parties intended it should be. The deed requires to be "reformed," as the technical phrase is; and of the entire equity jurisdiction, derivable from the three heads oi fraud, accident, and mistake, it would be difficult to name any portion which is more beneficial, or more judici- ously exercised, than that of reforming deeds in cases of mistake (a). Passing from the general subjects of fraud, acci- dent, and mistake, to those heads of equity juris- diction which admit of a more definite description, in reference either to the subject-matter of the suit or the nature of the remedy, the most satisfactory approach to classification seems to me to be that which I borrow mainly from Mr. Spence's work, viz. : — First. — Cases in which, but for the interposition of equity, there would in substance be no remedy. This class will include Partnership (h) . (a) The Judicature Act, 1873, section 34, assigns to the Chancery Division of the Court causes and matters foi- inter alia, " The rectification, or setting aside, or cancellation of deeds or other -written instniments. (b) The same Act assigns to the Chancery Division causes and matters for— "The dissolution of partnerships or the taking of partnership or " other accounts." 150 LECTUEE V. Secondly. — Cases in which the remedy at law was wholly inappropriate, including (a), — 1. Eecovery of Specific Chattels. 2. Specific Performance. Thirdly. — Cases in which the remedy at law, though not positively inappropriate, was less easy and con- venient than in equity, including (&), — 1. Account. 2. Dower. 3. Partition. Commencing with " Partnership," let us consider the position in which partners stand in reference to legal remedies only. Under the old law, an action of account lay by one partner against another. Thus, Coke, in his commentary on Littleton, says, — " As if " two joynt merchants occupy their stocke goods and " merchandizes in common to their common profit, one of them naming himselfe a merchant shall have an account against the other naming him a mer- chant, and shall charge him as, 'receptor denari- ovum ipsius B ex qudcunque causd <& contractu ad communem utilitatem ipsorum A & B provenien^ sicut per legem mercatoriam rationabiliter mon- strare poterit.' (c)." (a) There is no special assignment by the Judicature Act, 1873, of causes for the recovery of specific chattels, and the assignment to the Chancery Division in respect to specific performance is limited to causes and matters fox " The specific performance of contracts between vendors and purchasers " of real estates, including contracts for leases.'' (6) As to account, see note (J) p. 149. The Act does not mention dower, but specially assigns to the Chancery Division causes or matters for " The partition or sale of real estates.'' (c). Coke Litt. 172. LECTUBE V. 151 But the remedy by action of account has long since become practically obsolete {a) ; and if we except the right of a partner, where partnership articles have been entered into under seal, of bringing an action of covenant against his co-partner for any breach of the articles, we may say without any material inaccuracy, that no right of action exists at law. It could indeed not weU be otherwise. Assume that one partner receives a sum of money, which prima facie he is bound to pay into the partnership account, or of which he ought to pay one-half to his fellow partner, and that he omits to do his duty. Then let the aggrieved partner sue the defaulter. The answer to the action is obvious, — " The rights of the partners " inter se cannot be faiiiy ascertained, except by " taking the accounts generally ; and if an action of " this kind is permitted, one partner may be com- " pelled to pay to the other what, upon a perfect ad- " justment of the relative rights and liabiHties, might " appear to belong to himself." Where the partners have, upon a dissolution of partnership, met and ad- justed an account (that is to say, actually taken their accounts themselves), then he who appears upon the result of those accounts to be the creditor of the other, may sue for the balance appearing to be due to him : in fact, " cessante ratione cessat lex ; " but otherwise the court of law is powerless. Let us now shortly state to what extent and in what (a) A short sketch, of the common law action of account will be found in Lecture VIII. 152 LECTURE V. way the equity courts aid the infirmity of those of the common law in partnership matters. First. — The equity court will either, upon a dissolu- tion, or with a view to a dissolution, of the partner- ship, order the necessary accounts to be taken, and give all directions for realising the partnership pro- perty ; adjusting, at the same time, all questions of right of trading, indemnity to be given by one partner to the other, &c. Secondly. — It will, at the instance of a partner, decree a dissolution of partnership, where the other partner has,. by breach of the partnership articles or other misconduct, disentitled himself to any further continuance of the partnership ; or when, through per- manent ill-health or lunacy, he has become incapable of fulfilling his duties as partner (a). Thirdly. — It wUl, in case of necessity, with a view to dissolution, assume indirectly the management of the concern, by appointing a receiver ; but it is now settled that it will not do this when a continuance of the part- nership is contemplated (&). Fourthly. — It wiU , in certain cases direct accounts (ffl) As to dissolution in event of lunacy of a partner, see Beset v. Frolich, 1 Phillips, 172 ; Anonymous case, 2 Kay & Johnson, 441 ; and Leaf i;. Coles, 1 De Gtex, Macn. & Gor. 171. If the dissolvition is purely the act of the Court, founded on the permanent lunacy of the partner, it ■will tate effect only as from the date of the decree, but where there is a right to dissolve (say. by notice), which has been duly exercised, and the Court is merely asked to recognise and give effect to this right, the partner- ship win be declared to have been dissolved as from the date at which the dissolution was only effected. See Eobertson v. Lockle, 15 Simons, 285. (5) See Hall v. Hall, 3 Macn. & Gor. 79. LECTUBE V. 153 to be taken, even though a dissolution be not in con- templation (a). When we compare these large remedial operations of the equity courts with the almost entire powerlessness of the common law, we might be almost tempted to speak of the equity jurisdiction in partnership matters as really exclusive. We proceed to our second class, — in which, though the common law afforded somewhat more of remedy than in that just considered, yet the remedy itself was very inadequate. And first, as respects the delivering up of " Specific Chattels." At law, if any ai'ticle or chattel was wrongfully with- held from a man, his remedy was either by action of trover, or action of detinue. In the former case, he recovered the damages only. In the latter, the jury found the value of the chattels, and the judgment was for recovery of the chattel detained, or its value, as found by the jury, if the chattel were not returned ; with damages in either case for the detention. In fact, the wrong-doer had the option of returning the chattel or paying the value (b). But what real redress could (a) The authorities "will be found collected and discussed in Fairthorne v. Weston, 3 Hare, 387. (h) See the question as to the proper form of verdict learnedly discussed in Wmiams v. Archer, 5 Common Bench K. 318 ; and in Phillips v. Jones, 15 Queen's Bench E. 859. The Common Law Procedure Act, 1854, 17 & 18 Vict. cap. 125, s. 78, confers a new jurisdiction to compel specific delivery of the chattels ; but the power of compulsion is by distress only, and therefore less efficacious than that in equity. By the proposed new rules and regulations it is provided (by Order xxxvii. , rule i) as follows : 154 LECTURE V. this afford when the thing itself was wanted ? Take the case of a rare monument of antiquity, — the famous Pusey Horn, for instance, said to be the sam6 under which the Pusey family in Berkshire held their lands of Canute the Dane. What damages could compensate for the loss of such a relic ? Or, to imagine an illus- tration which, at the present moment, will go home to the heart of each of you ; suppose that, some fifty years hence, a sword of honour, — a tribute of the pre- sent generation to him who has made the name of " Havelock " part of our history, — should be wrong- fully withheld from some grandson of that brave man. Could any damages do justice ? Well, in cases of this sort the equity courts supplied and stiH supply the very remedy required. They did so at an early thou^ not very clearly defined date. In the time of Edward the Fourth, the question whether the court would give relief when title deeds were wrongfully detained, appears to have been stiU doubtful. We find a bill of this kind (with the answers and replications), of that monarch's reign, in the preface to the second volume of "The Calendars of Proceedings in Chancery (a) ;." but in the year-book A judgment for tlie recovery of any propex'ty other than land or money may be enforced By writ for delivery of the property. By wi-it of attachment. By writ of sequestration.. And, hy Order xxxix. , a writ of attachment is to have the same effect as a writ of attachment issued out of the Court of Chancery has heretofore had. The argument founded on the process being more efficacious in Chancery will therefore cease to be applicable. (a) p. cxiv. LECTURE V. 155 of the 9th. Edward IV. («), an instance is mentioned in which the plaintiff was sent to common law, where he might have writ of detinue. In later times we find the case oiPusey v. Pusey {h), in which the subject matter of litigation was the very Pusey Horn of which I spoke to you just now ; and later still, in the year 1735, a case of Duke of Somerset V. Cookson (c), in which Lord Chancellor Talbot decided that a bill would lie by the plaintiff, lord of the manor, against defendant for delivery up of an old silver altar with a Greek inscription. Next, as to specific performance. Here, again, the remedy at law was damages only, and in many cases whoUy inadequate. A man purchased a piece of land near his house ; on the strength of his purchase, he proceeded perhaps to arrange various alterations as respects buildings and pleasure grounds ; probably he modified even his internal family arrangements. Per- chance, he actually took possession and paid part of the purchase-money ; yet, if before actual conveyance, differences arose between his vendor and himself, he was at law entirely in the power of the former. He might be ejected, and no amount of inconvenience, hardship, or mortification could entitle him at law to anything beyond damages. No country pretending to anything like a system of civilised jurisprudence could tolerate such a state. of things. Accordingly, equity (a) pi. 41.— Mr. Spence mentions, Eq. Jur. vol. i. 643, note (6), instances of tills for the delivery up of a gilt cross, a crucifix (Henry the Eighth's time), and a crimson bed (in the time of Philip and Mary) ; but I have been unable to verify the authorities to which he refers. b) 1 Vernon, 263 ; anno 1684. (c) 3 Peero -Williams R. 389. 156 LECTURE V. stepped in, and said, " These contracts must be per- " formed." This, indeed, it did at a very early period (a). It has been occasionally the subject of observation, that the Court of Chancery, whUe interfering to rescue our jurisprudence from the disgrace of allowing con- tracts for sale of land to be violated upon payment of damages only, has eiTed rather iu treating the time stipulated for performance of the contract as generally immaterial. Thus, as you are probably aware, if A seU land to B, and it be expressly stipulated that the contract shall be completed on a certain day, the default of either party in respect of time, does not prinid facie entitle the other to rescind the contract. To use the technical phrase, time is not deemed of the essence of the contract (b). It may be admitted perhaps that the equity courts have gone rather far in this respect, in interfering with the contracts of parties. Still, the error may well be forgiven, in consideration of the beneficial nature of the jurisdiction ; and most of the objectionable results of the general rule in reference to time are avoided by the practice of conveyancers, who, whenever setthng a stipulation in respect of which time is to be essential, add the words, " and in this (a) The second case mentioned in the preface to the 2nd volume of the Calendars of Proceedings in Chancery, is a bill for specific performance (the date being Richard the Second's Reign) ; and at page xxvi. of the sime preface there is another instance. (6) There are certain well-established exceptions to the general rule — as where the subject-matter of contract is a mining lease, Macbryde v. Weekes, 22 Beavan, 533 ; or a life annuity, Withy v. Cottle, Turner & Russell, 78 ; or a public-house sold as a going concern, Cowles provides as follows : — ' ' A defendant may set off or set up by way of counter claim against the " claims of the plaintiff any right or claim, whether such aet-off or 174 LECTURE V. " counter-claim sound in damages or not, and sucli set-off or counter-claim ' ' shall have the same effect as a statement of claim in a cross action, so as ' ' to enable the Court to pronounce a final judgment in the same action, ' ' both on the original and on the cross claim. But the Court or a judge " may, on the application of the plaintiff before trial, if in the opinion of ' ' the Court or judge such set-off cannot be conveniently disposed of in the ' ' pending action, or ought not to be allowed, refuse permission to the " defendant to avail himself thereof," LECTURE VI. The division of equity jurisprudence reserved for this evening's lecture is one vsrMch, in practical im- portance, occupies a very different position from that which it held only a few years since. Of the auxiliary jurisdiction of the court it may be said that it has diminished, is dimiuishing, and may probably, ere long, under the amending hand of the Legislature, vanish altQgether (a). Nor can this be properly a subject for regret. That our common law tribunals should, in matters peculiarly within their own cognisance, need the aid of equity courts to enable them to do justice efficiently, must surely be a reproach to our judicial system. In the division of equity which was treated in the last preceding lecture, viz., the concurrent jurisdiction, considerable difficulty occasionally occurs in determin- ing whether the circumstances of the case in hand do in fact briag it within some head of concurrent juris- diction.; but so soon as this difficulty has been sur- mounted, the equity court takes entire cognisance of (a) Upwards of sixteen years •will have been needed for the fulfilment of this expectation, which it may be presumed will be accomplished by the Judicature Act, 1873, the coming of which into operation is now post- poned until November 2, 1875. 176 LECTURE VI. the matter. Sometimes, no doubt, the suitor may make a wrong selection of tribunal, and be turned round to law. But this is m.erely an occasional and not an inseparable incident of the concurrent juris- diction. Not so in the auxiliary jurisdiction. In cases which fall within its ambit, the remedy prescribed for the unfortunate suitor by our conjoint jurisprudence is, a certain amount of law and a certaia amount of equity ; and one may say, with perfect impartiality, that neither imparts a relish to the other. While then, as a member of the Chancery bar, I might be pardoned some lurking feehngs. of regret at witnessing the decline of any head of equity juris- diction, honesty and good sense caU upon me to hail the change as one decidedly 'beneficial to the com- munity at large. But, notwithstanding the decline alluded to, it must be some time yet before any one undertaking to give a sketch of equity jurisprudence can venture to omit all notice of the auxiliary jurisdiction of the court ; and I am not without hope that what I have to say this evening will prove not only valuable ia perfecting your theoretical notions respecting equity, but also practi- cally useful. Now the cases in which equity merely assisted the law without assuming entire jurisdiction over the matter, may be conveniently classed as follows : — Firstly. Cases ia which equity aided the infirmity of the law in regard to evidence, comprising — (1.) Discovery. LECTURE VI. 177 (2.) Perpetuation of Testimony. (3.) Examiaation of Witnesses de bene esse (a). Secondly. Cases in which equity aided the infirmity of the law, either by repressing needless and vexatious litigation at law where the right appeared to have been sufficiently tried there, as in bills of peace ; or by pro- viding for a fair and sufficient trial in the proper /orM?», as in the case of bills to estabhsh wills (&). Let us take the first subdivision of the first class, viz., Discovery. (a) This phrase is intended to include the examination of witnesses who are abroad. (b) The old head of jurisdiction exercised in the case of bills for a receiver of personal estate pendente lite in the Ecclesiastical Court, was strictly of an auxiliary kind. The leading features of the principles and practice under this head of jurisdiction will be found collected in the following cases, or in those there cited : — Watkins v. Brent, 1 Mylne & Craig, 97 ; Marr v. Littlewood, 2 Mylne & Craig, 454 ; Kendall u. Kendall, 1 Hare, 152 ; Whitworth v. Whyddon, 2 Macn. & Gror. 52 ; Barton v. Kock, 22 Beavan, 81. But under the new Act (20 & 21 Vict. cap. 77) the Court of Probate has power (by sect. 70), pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, to appoint an administrator of the personal estate of such deceased person ; and, although the jurisdiction of the Court to appoint a, receiver is not put an end to, a stronger case for the appointment of a receiver must now be made than before the Act ; Hitchen u. Birks, L. E. 10 Eq. 471. And when an administrator ^en&rate lite had been appointed by the Court of Probate, after biU filed for a receiver, the Court of Chancery refused to appoint a receiver ; Teret v. Duprez, L. R. 6 Eq. 329. On the other hand, the Court of Probate will appoint an administrator pendente lite, if it is just and proper so to do, although a receiver may have been already appointed by the Court of Chancery. Tichbome v. Tichbome, L. K. 1 P. & D. 730. The occasions for resort to the jurisdiction of the Court of Chancery under this head must, therefore, now become rare. There must, however, be a suit pending in the Court of Probate to found the jurisdiction of that Court, and if there be no suit pending there, the Court of Chancery will exercise its old jurisdiction ; Parkin v. Seddons, L. E. 16 Eq. 34. ir 178 LECTUEE VI. In order to appreciate accurately the necessity for the auxiliary jurisdiction of equity in affording discovery, we must casta short retrospect upon the law of evidence as it existed previously to the recent changes. The general rule, as established at the time when Bentham wrote, was that every person interested in the pending Htigation was disquaUfied from giving evi- dence. Bentham, I beUeve, first pointed out that, as a rule, no witness ought to be disqualified on account of interest only, and that the objection to the evidence of an interested person ought to be treated not as an objection to the reception of his evidence, but merely as detracting from its weight when received. After seeing the general rule of the old law first broken in upon in 1833 by the Common Law Amend- ment Act of that year (a), which provided, in substance, that witnesses might be examined notwithstanding objection made that a verdict or judgment in the action would afterwards be admissible in evidence for or against themselves ; and then annulled in 1843 by Lord Denman's Act (b), which made interested persons good witnesses, as the rule, though retaining special instances of disqualification on the ground of interest, as in case of the parties plaintiff and defendant them- selves ; we at last, some six years back (c), witnessed the final triumph of Mr. Bentham's views. The Act then passed {d) rendered, with a few exceptions (e), (a) 3 & 4 Wm. IV. cap. 42, ss. 26, 27. (b) 6 & 7 Vict. cap. 85. (c) The lectures were read in 1857-58. (rf) 14 & 15 Vict. cap. 99. (e) The exceptions, so far as relates to civil proceedings, have now dis- LECTUEE VI. 179 even plaintiffs and defendants competent and compel- lable to give evidence. Now you win have observed that the persons whose evidence was thus excluded under the old law, may be ranged into two classes, viz. : — 1st. Interested persons not actually themselves liti- gant. The evidence of these was first made generally receivable by Lord Denman's Act. 2ndly. The litigants themselves, who were first made competent and compellable to give evidence by the Act of 1851. The auxiliary jurisdiction of equity in compelling a discovery was directed to the mitigation of the evils caused by the disqualification of the latter of these two classes — i.e., the parties litigant. These evils, but for the interference of equity, must indeed have been extreme. Thus, a plaintiff at law might sue a defendant notwithstanding the existence of circumstances known only to the parties litigant, but which, if given in evidence, would afford a good defence to the action. Let me put, as a possible case, that of a plaiatiff suing for goods sold and delivered, the defendant having personally paid the price to th« plaintiff in cash. At common law the defendant was remediless. The plaintiff proved the delivery of the goods, and recovered the value. Equity, however, appealed. They were abolished, as to husbands and wives fexcept in proceedings for adultery), by 16 & 17 Vict. cap. 83, and after intermediate enactments (21 & 22 Vict. cap. 108, ». 11 ; and 22 & 23 Vict. cap. 61, s. 6) ; this exception as respects proceedings in adultery was abrogated by the 32 & 33 Vict. cap. 68 ; by which last Act the exception applicable to actions for breach of promise of marriage was also abolished. N 2 180 LECTUEE VI. allowed the defendant, under these circumstances, to file a bill against the plaintiff at law, calling upon him to answer upon oath the interrogatories contained in it ; and then the plaintiff at law, unless prepared to perjure himself, was obliged by his answer to admit (though it might be with his own colouring) the substantial facts of the case. This answer, although not evidence in the ordinary sense, might be given ia evidence by the other party as an admission made by the plaintiff at law, just as any letter written by him admitting relevant facts might have been given in evidence. It was viewed strictly as an admission ; so that if the plaintiff in equity wished to give any portion in evidence upon the trial at law, he was obliged to read the whole, and make the whole evidence. Of course you wiU understand that a plaintiff at law had just as much right to file a bill for discovery in equity in aid of his action at law, as had a defendant at law against the plaintiff in aid of his defence. And j'ou will bear in mind that, in addition to the cases in which the object of the biU was to obtain an admission of facts exclusively within the knowledge of the parties litigant, there were many others in which the aim was to obtain a discovery and production of documents ; an object effected in equity by means of the ordinary interrogatory as to documents and subsequent motion for production (a), (a) It must be tome in mind, however, that the more searching cha- racter of the equity procedure in reference to production of documents was not "per se " a sufficient ground for a hill of discovery. Thus a bill lECTUKE VI. 181 By these means the shortcomings of the law in resj)ect to evidence were in some measure remedied. I say in some measure, because the admission of a third person being no evidence against a party litigant, the assistance of the court could in no way be made available to supply the exclusion of the evidence of persons falling within the first class. In fact the evidence, in the technical sense of the word, of each class, was excluded equally in equity and at law ; and the rule was perfectly settled, that no bill of discovery lay against a mere witness (a). Here let me remind you, that discovery always formed and still forms part of the procedure of the court of equity, in those cases in which it grants relief in the exercise either of its exclusive or of its concurrent jurisdiction. The defendant was and is, in those cases, compellable to answer interrogatories which formerly were contained in the body of the bill, and now are delivered separately (6). for discovery would not lie against a mere witness, notwithstanding the inferior efficacy of a sitbpcena duces tecum ; Fenton v. Hughes, 7 Vesey, 291. A singular statutory exception is to be found in the enactments (6 & 7 W. IV. cap. 76, s. 19 ; 32 & 33 Vict. cap. 24) authorising bills for the discovery of the names of printers, publishers, and proprietors of newspapers, as to which see Dixon v. Enoch, L. R. 13 Eq. 39i. (a) There was a special exception in the case of the secretary or other public officers of a corporation, who might be made co-defendants with the corporation for the purpose of obtaining discovery in the case either of a bill for relief or of a bill for discovery only ; Glascott v. Copper Miners' Company, 11 Simons, 305. As to obtaining against a corporation, under the new practice introduced by the 15 & 16 Vict. cap. 86, sect. 18 (see pages 83-86, ante), discovery respecting, and production of, documents without making an ofiBcer a defendant ; see Banger v. Great Western Eailway Company, 4 De Gex & Jones, 74 ; Clinch v. Financial Corpora- tion, L. R. 2 Eq. 271. (6) See p. 81. 182 LECTURE VI. But the discovery granted by the court of equity as the handmaid of the courts of law, was obtainable only on very different terms from that which formed part of the ordinary procedure of the court. For the moment the bill for discovery had been fully answered, the defendant, however strong a case he might have admitted against himself, was entitled to his costs in equity ; and the plaintiff in equity, even though ulti- mately successful, either as plaintiff or as defendant in the action at law, had to bear the entire costs of his bill of discovery. Consequently, except where the amount in dispute was large, a bill of discovery in equity was too costly a weapon for use. When therefore we consider the onerous terms upon which only the equity courts granted discovery in aid of actions or of defences to actions at law, we cannot but view with satisfaction the statutory jurisdiction lately conferred on the common. law tribunals — a juris- diction which has rendered them practically indepen- dent of the auxiliary jurisdiction of equity in affording discovery. The first step towards enabling the courts of law to do for themselves what equity had previously done for them, was that taken by the Evidence Act of 1851 [a], the Act which first made parties good witnesses. The sixth section is in these words : " Whenever any " action or other legal proceeding shall henceforth he " pending in any of the superior courts of common " law at Westminster or Dublin, or in the Court of " Common Pleas for the County Palatine of Lancaster, (o) 14 & 15 Tiot. cap. 99. LECTURE VI. 183 " or the Com-t of Pleas for the County of Durham, " such court and each of the judges thereof may re- " spectively, on application made for such purpose by " either of the litigants, compel the opposite party to " allow the party malting the application to inspect all " documents in the custody or under the control of " such opposite party relating to such action or other " legal proceeding, and, if necessary, to take examined " copies of the same, or to procure the same to be " duly stamped, in all cases in which, previous to the " passing of this Act, a discovery might have been " obtained by filing a bill or by any other proceeding " in a court of equity at the instance of the party so " making such application as aforesaid to the said " coiu't or judge." The penman of this enactment would appear to have been but imperfectly acquainted with the equity system of discovery. The section is directed merely to com- pelling the production and inspection of documents, which constitutes but a portion of discovery in the general sense of the word ; indeed the word " dis- " covery " is, in equity, more commonly applied to that discovery which is obtained directly from a defendant's answer, and not indirectly by production. And yet, in this section, " inspection or production of " documents" and " discovery" seem to be viewed as equivalent things. The absence of any provision in the Act for compel- ling a discovery generally in answer to interrogatories, is probably to be explained by the circumstance, that the framer of it considered the privilege thereby con- 184 LECTUEE YI. ferred of calling the opposite party as a witness, to be all that was reaUy needed. In reference to the jurisdiction to compel inspection thus conferred by the Evidence Act, the common law courts decided shortly after it came into operation, that the party applying for inspection must make out upon af&davit a. prima facie case, stating with sufficient distinctness the natia-e of the documents of which he required inspection (a). The new jurisdiction as thus exercised was obviously far less beneficial to the party requiring discovery than in equity : where, upon an interrogatory calling upon the defendant to the biU. of discovery to state what documents he had in his pos- session, he was compelled, first to answer, and sub- sequently to produce for inspection all which he admitted to be relevant and which were not specially privileged. However, by the Common Law Procedure Act of 1854 (h), further and more elaborate provisions for compelling discovery were made. By the 60th section, upon the application of either party to the action at law, and upon an affidavit by such party of his belief that any document to the pro- duction of which he is entitled is in the possession or power of the opposite party, the court or a judge may order the opposite party to answer on affidavit what documents he has in possession or power relating to the matters in dispute ; and upon such affidavit being made, the court or judge may make such further order (a) See Hunt v. Hewitt, 1 Exchequer E. 236. (4) 17 & 18 Vict. cap. 126. LECTURE VI. 185 thereon as shall be just — i.e., order an inspection or not. The 51st section confers on either party a power of delivering written interrogatories to the opposite party, provided such party would be liable to be examined as a witness upon such matter ; and the party interrogated (a) must answer by affidavit, or, in default, a contempt of court will be deemed to have been committed. And by the 59th section, where the written interrogatories are not sufficiently answered, the court may direct an oral examination before a judge or master of the party interrogated. In reference to the jurisdiction conferred by this last Act, the following points appear worth noting : — 1. The jurisdiction under the 60th section, in refer- ence to inspection of documents, is more liberal to the party seeking discovery than that under the Act of 1851. For upon a mere affidavit of belief by either party (b) that the other party has some document in respect of which a right of discovery exists, the " onus " is cast upon such party of stating what relevant documents he has, pretty much as in equity. {a) Where the party from whom discovery is sought is a body corporate, any of its officers may be interrogated, e.g., directors of a company, Madrid Bank v. Bayley, L. R. 2 Q. B. 37 ; and the town-clerk of a cor- poration, McFadzen v. Mayor, &c., of Liverpool, L. R. 3 Exch. 279 ; and the provision has been held to extend to the public officer of a company suing nominally on its behalf, McKewau v. Rolt, 4 Hurl. & Nor. 738. (J) Where the party seeking discovery is a corporation, the affidavit may be made by the attorney, else the corporation would be deprived of the benefit of the statute ; Kingsford v. Great Western Railway Company, 16 Com. B. (N.S.) 761. But where the party is abroad the affidavit of the attorney wiU not in general be accepted ; Herschfield v. Clarke, 11 Exchequer, 712. 186 LECTURE VX. If, however, the rule is to be established that the party applying must in his affidavit describe the docu- ments, that the court may see that they are documents to the production of which he is entitled (a), or even specify some one document in order to entitle himself to the aid of the court (&), it is obvious that the com- mon law jurisdiction under this section must occa- sionally fall short of the requirements of the party seeking discovery; unless, indeed, the practice be intro- duced of first delivering an interrogatory respecting documents under section 51, and then, after the requisite knowledge respecting documents has thus been gained, applying for inspection under section 50 (c). 2. In regard to discovery upon oath under the 51st section, it wiU be seen that the right to administer interrogatories is made dependent on the party to be interrogated being liable to be called and examined as a witness upon such matter ; so that at first sight it might seem that the affidavit in answer to the interro- (a) See Thompson v. Roteon, 2 Hurlstone & Norman, 412 ; adhered to in WooUey v. Pole, 14 Common Bench Hep. (N.S.) 538. (b) See Hewett v. Webb, 2 Jurist, N. S. 1189 ; Bray v. Finch, 1 Hurl- stone & Norman, 468 ; Evans v. Louis, L. E. 1 C. P. 656. The practice in the Admiralty Court follows that in Chancery ; The Minnehaha, L. B. 3 A. & E. 148. (c) It is believed this practice has been introduced to a considerable extent ; see Adams v. Lloyd, 3 Hurlstone & Norman, 351 ; though it the ratio decidendi in that case has been generally adhered to in the Common Law Courts, the discovery obtainable must fall far short of what may be gained in Equity. According to the Chancery practice, the oath of the person interrogated is accepted as conclusive only upon the question whether the documents mentioned by him are all that he has relevant to the matters in question ; but he is bound to schedule or describe all he has, whether privileged from production or not, leaving the Court to decide whether they shall, or not, be produced. LECTUEE VI. 187 gatories was intended to be viewed as evidence, and not as an admission under the old practice. The intention of the words referred to must, however, I conceive, be held to have been to reserve to the party interrogated the right of objecting to answer any particular interro- gatory upon any point which as witness he might have decHned answering ; — say an interrogatory the answer to which might tend to criminate him, or an interro- gatory calling for the disclosure of a communication made to the party by his wife during the marriage, specially protected by the 16 & 17 Vict. cap. 83 (a). And I am informed that the ordinary practice of the common law 6ourts is to treat the affidavit of the party interrogated as an admission merely which cannot be put in evidence at all on behalf of the party making it, and which, if put in evidence by the iaterrogating party, must be put in evidence altogether, and the whole of it read. One question yet remains before parting with the subject of discovery as a head of auxiliary jurisdiction. Have the recent powers conferred on the common law courts theoretically affected the auxiHary jurisdiction of the courts of equity ? Practically, I beUeve a bill of discovery in equity is hardly ever now heard of. But circumstances might occur at the present day to render desirable a resort to equity for discovery ; saj', for instance, a narrow construction by the common law courts of the powers of compelling inspection of (a) Also, in accordance with the exception made by the li & 15 Tict. c. 99, s. i, to exclude interrogatories in proceedings instituted in conse- quence of adultery and in actions for breach of promise of marriage ; as to which see now 32 & 33 Vict. c. 68, abolishing the exception . 188 LECTURE VI. documents. In such a case, if the stake were suffi- ciently large, a bill of discovery in equity might be desirable. Upon principle, the jurisdiction must be held to re- main. No doubt, under the old law, the equity courts declined to compel a discovery in aid of proceedings in courts having themselves the means of compelling it, such as the ecclesiastical courts (a). But it is a canon of equity jurisprudence, that no alteration of the law re- moving difficulties or impediments which originally led to an assumption of jurisdiction in equity, can operate to deprive the court of a jurisdiction once assumed. Thus, in Kemp v. Pry or (&), where it was argued that in consequence of the greater latitude assumed by courts of law in modern times, the biH in that case should have been a bill for discovery merely, and not for discovery and relief. Lord Eldon thus expresses himself : — ' Farther, I cannot admit, that if the subject would ' have been a subject of equitable demand previously ' to the extension of the exercise of the principle upon ' which a court of law is authorised to act in the action ' for money had and received, that court sustaining an ' action they would not have sustained forty years ago ' is an answer to a biU that would have been sustained ' in this court at that time. Upon what principle can ' it be said the ancient jurisdiction of this court is ' destroyed, because courts of law now, very properly ' perhaps, exercise that jurisdiction which they did not ' exercise forty years ago ? Demands have been fre- (a) See Dunn v. Coates, 1 Atkyn's Rep. 288 ; and an Anonymous Case, 2 Vesey senior, 451. (6) 7 Yesey, 237. LECTURE VI. 189 " quently recovered in equity, which now could be '■' without difficulty recovered at law. * * » " I cannot hold that the jurisdiction is gone merely " hecause the courts of law have exercised an equitable " jurisdiction, more especially in the action for money " had and received." You will observe, that in the case before Lord Eldon, the discussion was respecting instances in which the court had been in the habit of affording relief in con- sequence of the inadequacy of the common law jm-is- diction. The same principle must, however, it is conceived, apply to the auxiliary jurisdiction of the court in affording discovery. The following dilemma seems, however, inevitable — Either the common law jurisdiction in affording discovery will prove equally efficacious with that in equity, in which event a com- mon law litigant will certainly not come into equity for discovery at his own expense ; or it will prove less so, and no ground can be alleged in that event for the equity courts ceasing to exercise their ancient jurisdiction (a). We proceed now to the second subdivision of the first class, viz., Perpetuation of Testimony. It happens occasionally that a person entitled pre- sumptively to some future interest in property, finds his title impeached or threatened by some other person (a) The observations of Lord Hatherley (when V. -C. Wood), in the case of the British Empire Shipping Company v. Somes, 3 Kay & Johnson, 437, fully supporting the jurisdiction, had escaped me, -when writing the above. Very recently, the precise point discussed in the text arose upon demurrer to a bill for discovery in aid of proceedings in ejectment, and the demurrer was overruled, and the old jurisdiction upheld, by the late Y.-C. Wickens ; Brown v. Wales, L. R. 16 Eq. 142. 190 liECTUEE VI. interested in disputing it ; and yet, in consequence of the futm'e or reversionary nature of that title, the law affords him no means of asserting and establishing it. Meanwhile the very testimony upon which his title depends may be in danger of perishing by the death of those who, if alive, would be able to give evidence in its support. In this state of things, it is competent to the party claiming such future interest to file a bill in equity against aU those who are interested in disputing it, asking that witnesses may be examined respecting the point in controversy, and that the testimony may thus be perpetuated {a). Perhaps the best instance that could be given of a suit of this class, is the case of Dursley v. Fitzhardinge Berkeley (b). It arose out of the circumstances which at a later date gave rise to the well-known Berkeley Peerage Case (c) in the House of Lords. The plaintiffs were four infant sons of the then Earl Berkeley, the first plaintiff on the record (there called Lord Dursley, and then about fifteen) being the same person who in later life was weU known, first as Colonel Berkeley, and subsequently as Lord Fitzhardinge. The defendants were two other infant sons of Earl Berkeley, and also Admiral Berkeley, a brother of the then Earl, and the son of the Admiral. The biU stated (a) It would seem that originally the practice was to file a bill against the witnesses themselves. See Barl of Oxford v. Sir James Tyrell and Others, Calendars of Proceedings in Chancery, vol. i. p. cxx. (J) 6 Vesey, 251. (c) The case is, I believe, not reported, bnt the Minutes of the Evidence taken in 1799 and 1811 will be found amongst the House of Lords' printed papers. LECTURE VI. 191 that certain estates stood limited to the Earl for hfe, with remainder to his first and other sons in tail male, with remainder to Admiral Berkeley for life, with remainder to his first and other sons in. tail male, and stated in detail the question respecting which jDerpetua- tion of testimony was sought, viz., an alleged marriage between the Earl and his Countess in 1785. There had been a subsequent marriage in 1796. The four plaintiffs were all born before this subsequent marriage — their two infant defendant brothers after it. The legitimacy of the latter was undoubted, whichever marriage prevailed. The legitimacy of the plaintiffs depended upon the fact of the solemnization of the alleged prior marriage. Now you will observe that the then Earl of Berkeley was actually tenant for life in possession, so that no means existed of litigating* the question of legitimacy (a) ; and under these circum- stances the infant plaintiffs prayed that the evidence of the alleged marriage of 1785 might be perpetuated. The particular point decided in the case was that the infant plaintiffs were entitled to perpetuate testimony against Admiral Berkeley and his son, notwithstand- ing the remote position of the latter in the order of entail; but the judgments of Lord Eldon (he de- livered two) are replete with valuable information, and will be foimd to contain the leading doctrines of the court in reference to the head of equity now under consideration. These, at the date of Lord Eldon's judgment (for they have been somewhat modified by a (a) See now "The Legitimacy Declaration Act, 1858" (21 & 22 Vict. cap. 93.) 192 LECTUEE VI. statute to which I shall presently advert), may be shortly thus stated. First — Any interest, however small and remote, and though contingent only, is sufficient to sustain a hill for perpetuating testimony. This was the point upon which Lord Eldon's decision turned. He argued thence that, d fortiori, Admiral Berkeley and his infant son, though only remote remainder men, might, as having vested remainders, have sustained a hill against the infant plaintiffs to perpetuate testimony of their ille- gitimacy, and that therefore the plaintiffs were, e con- verso, entitled to file a bill against them. Secondty — The court declines to perpetuate testi- mony of a right which might be immediately barred by the defendant agaiust whom perpetuation is sought, as i!n the case of a remainder man fiUng a biU against tenant in tail in possession. Thirdly — A mere expectancy, or spes successionis, was not considered sufficient to sustain a bill (a). Thus, the heir at law or next of kin for the time being were not entitled to file a bill to perpetuate evidence of their heirship or relationship. Referring to the case of a lunatic. Lord Eldon says : " Put the " case as high as possible, that the lunatic is intestate ; " that he is in the most hopeless state ; a moral and " physical impossibility, though the law would not so " regard it, that he should ever recover, even if he " was in articulo mortis, and the bUl was filed at that " instant, the plaintiff could not qualify himself as " having an interest in the subject of the suit." We (a) See Smith v. Attorney-General, Eomilly's Notes of Cases, 64. LECTURE VI. 193 shall see presently the effect of the late statute upon this point. Fourthly — A bill to perpetuate testimony only ap- plied where some right to property was involved. This (which I may observe, you will not find laid down in the case before Lord Eldon) was admitted in the Townshend Peerage Case (a), which I am about to mention. This case (that of the Townshend Peerage) was not only remarkable in its circumstances, but important as having led to a statutory extension of the law with regard to the perpetuation of testimony. It came before Committees of Privileges of the House of Lords twice ; viz., in 1842 and 1843. The facts were shortly these. The late Marquis Townshend (when Lord Chartley) in 1807 intermarried with one Miss ; who in 1808 left him, and instituted a suit against him for nullity of marriage, alleging his impotency. Dropping that suit, she eloped in 1809 from her father's house with a Mr. , and went through a ceremony of marriage with him at Gretna Green. During many years' co- habitation with him, several children were born, who at first were named after him, and educated as his children ; but, in 1823, they and their mother assumed the names and title of the peer. The Marquis generally lived abroad, had no access to his wife, knew of her infidelity, but took no proceedings to dissolve the mar- riage or bastardize the children. In 1841, the eldest of the children, then of full age and calhng himself (a) 10 Clark & FinneUy, 289. 194 LECTURE VI, " Earl of Leicester," was elected for the borough of Bodmin, and returned in the writ as " the Honourable John Townshend, commonly called the Earl of Lei- cester," and he declared his qualification to sit in the House of Commons to be as eldest son of a peer of the realm. Under these circumstances a petition was, in 1842, presented to the House, by the next brother of the Marquis Townshend, setting forth in considerable detail the facts just stated, stating that he was advised he had no means of disputing the legitimacy of the person so calling himself Earl of Leicester, and praying that their lordships would provide such remedy and adopt such proceedings as to their lordships might seem meet (a). (fl) The petition concluded thus : — " That some of the witnesses by whom only many of the most important " facts can be proved, are far advanced in life, -and in uncertain health ; ' ' and other persons -whose testimony is material, refuse to make any ' ' disclosures unless compelled by a court of justice ; but if any of these " persons should happen to die in the lifetime of the Marquis, it may be ' ' impossible to prevent an individual, notoriously begotten and bom in '' adultery, from succeeding to the numerous honours of the petitioner's " family. That in consequence of there not being any property involved " in the succession of the petitioner as heir to his said brother, he is ' ' advised that he cannot file a bill in Chancery to perpetuate testimony ; " and he submits that it would be not merely an anomaly, but an iu- " justice to the families of peers, if, while the law provides means for ■" securing the rights of inheritance of the humblest person in the king- " dom to every kind of property, by enabling the party interested to per- " petuate the evidence of witnesses in case of their death, no such means " should exist with respect to the highest and most important right of " inheritance, the dignity of a peer of the realm. That the petitioner, " naturally anxious to secure to himself and his family the enjoyment of " his and their legal rights, and to prevent the same from being lost by " the success of an imposition so audacious as to be absolutely without LECTURE VI. 195 The result of this petition was the introduction by Lord Cottenham into Parliament of a biU, which sub- sequently became law, as the Act of the 5 & 6 Vict, cap. 69. By this Act (after a preamble reciting that it was expedient to extend the raeans of perpetuating testi- mony in certain cases), it was by the first section enacted in substance, that any person who would, under the circumstances alleged by him to exist, become en- titled upon the happening of any future event to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which could not by him be brought to trial before the happening of such event, should be entitled, from and after the passing of that Act, to file a bill in the High Court qf Chancery to perpetuate any testi- mony which might be material for estabhshing such claim or right. The second section provided for making the Attorney- General a defendant to aU suits instituted under the authority of the Act, touching any honour, title, or dignity, or any other matter in which the Crown might be interested. The chief extensions made by this Act were shortly as follows ; — ' ' precedent, neTertheleas feels that your lordships have at least an equal " interest in the question. The petitioner therefore humbly submits the ' ' difficulties under which he labours, and the injustice which may arise, ' ' as well to their lordships and the peerage as to himself and his family, " to the consideration of their lordships, and prays that your lordships " wiU provide such remedy and adopt such proceedings as to your lordships " may seem meet.'' 2 196 LECTURE VI. First. — The right to perpetuate testimony was ex tended to persons claiming titles, dignities, or offices, and not restrained as before to claims in respect of property. Secondly, — A person who would, under the circum- stances alleged by him to exist, become entitled, upon the happening of any future event, &c, &c., may now file a bill to perpetuate, so that the distinction adverted to as existing in Lord Eldon's time between a mere spes successionis and a remote interest no longer exists ; and an heir at law or next of kin may equally have testimony perpetuated. In reference to the particular case (the Townshend Peerage) which gave rise to the Act, it is sufficient to state, that in the subsequent session, that of 1843, both the Marquis Townshend himself, and his brother the former petitioner, applied to the House, claiming its interference, notwithstanding the altered state of law under the new Act ; and in the same session, under the auspices of Lord Brougham, a private Act was passed (a) enacting that the children of the Mar- chioness, therein mentioned, with the exception of one child, a minor, whose rights were specially saved, were not, nor should any of them be deemed, lawful issue of the Marquis. Thus, singularly enough, the parti- cular case, to meet which the general Act was passed, never needed the assistance of it. A few points in reference to the practice of the court in suits of this kind demand notice. (a) An elaborate protest against the passing of the Private Act was signed by Lord Cottenham and six other peers ; see 10 Clark & Finnelly, 31 4. LECTUEE VI. 197 1. The depositions taken are never published until, by reason of the death of the witness, it becomes ap- parent that his testimony cannot, when litigation shall arise, be given in the ordinary way. This circumstance you will frequently find com- mented upon in the cases, as a marked infirmity ia the jurisdiction itself (a). The witndfes, it has been ob- served, gives his testimony without being under the restraint of any of those penalties which the law im- poses upon perjury ; for during his life the evidence is not pubhshed, and after his death human tribunals can no longer reach him. The evil was, under the old practice, aggravated by the circumstance that cross- examination was a mere shadow, the interrogatories for cross-examination (so-called) being framed without any knowledge of what the witnesses might say on their examination in chief. But it has been decided that the alterations in equity procedure introduced in 1852 in reference to taking evidence, apply to the case of examining witnesses de bene esse (6) ; and upon principle, therefore, witnesses in a suit to perpetuate testimony must either be examined viva voce before an examiner, the other side attending and giving evidence, or they must depose by affidavit, and there will then be the right of cross-examining upon the affidavit. 2. Bills to perpetuate testimony are never brought (a) Angell v. Angell, 1 Simons & Stuart, 83, p. 89. (J) Cook V. Hall, 9 Hare, App. xx. — And the Order as to evidence of the 5th February, 1861, provides (by rule 16) that in suits to perpetuate testimony, evidence shall continue to be taken according to the then existing practice. See Mr. Barber's Statement, p. xlviii. 198 LECTUEE VI* to a hearing (a) ; in truth, there is nothing to hear ; for first, there is no issue immediately triable, and secondly, the evidence not being published, there is no evidence available. The practice is as follows ; If the defendant merely cross-examines the witnesses of the plaintiff, he is entitled to his costs. If he examines witnesses of his own, then, as he has availed himself of the bill to perpetuate testimony in his own favour, he must bear his own costs (6). The third subdivision of my first main division of auxiliary jurisdiction, namely, bills for the examination of witnesses " de bene esse," may be treated as prac- tically defunct. In former times, a plaintiff, who had actually com- menced litigation at law, or a defendant who was actually sued there, might be under the apprehension either that at the time of trial important witnesses actually abroad might stiU be there, or that important witnesses of advanced years might be then dead, or that old or infirm witnesses might be then unable to travel. Justice required that under these circum- stances the evidence of these witnesses should by some mode be taken and preserved, so as to provide against the event of its not being obtainable in the regular way at the trial. Formerly the common law courts possessed no machinery for accomplishing this important object ; (a) And a motion to dismiss a bill of this kind for want of prosecution is irregular. The proper application is that the plaintiff do proceed ■within a giren time, or pay the defendant his costs ; Wright v. Tatham, 2 Simons, 459. See further, Ellice t>. Roupell (No. 2) ; 32 Beavan, 315. (b) Taughanj). Fitzgerald, 1 Schoaies & Lefroy, 316. LECTUKE VI. 199 and under these circumstances bills used to be filed in equity, praying a commission for the examination of witnesses. These bills resembled obviously, in their nature, bills to perpetuate testimony. But there were certain technical distinctions. Thus the bill to obtain a commission for the examination of witnesses abroad, or of aged or infirm witnesses, lay only where litigation had actually commenced (a). And there were distinc- tions in reference to the circumstances under which pubhcation of the evidence was permitted (6). But there would be httle advantage in dwelling upon the peculiarities of a jurisdiction now practically obsolete. The first effort to free the common law courts from the need of the assisting hand of Equity, was that made by the India Bill of 1773 (c), which provided for taking evidence in India in reference to actions and suits of which cause arose in India. In 1830 (d), power was given to the common law courts, to order an examination upon interrogatories or otherwise, of any witnesses within the jurisdiction, and to issue commissions for the examination of witnesses out of (a) Angell v. AngeD, 1 Simons & Stuart, 83. On the other hand, it is a fatal objection to a bill for perpetuation of testimony, if taken at the proper time, that the matters in dispute may be made the subject of im- mediate judicial investigation ; Ellice v. Eoupell (No. 1), 32 Beavan, 299 ; Earl Spencer v. Peek, L. K. 3 Eq. 415. And see further, as to the dis- tinction between "perpetuating testimony" and "examination de bene esse," the judgment of the Master of the Rolls in EUice v. Roupell (No. 2), 32 Beavan, 308. (b) Harris v. Cotterell, 3 Merivale, 680. (c) 13 Geo. III. cap. 63, a. 44. (d) By l^WiU. IV. cap. 22, 8. 1. 200 LECTUBE VI. the jurisdiction ; and from this Act we may date the practical extinction of the head of auxiliary jurisdic- tion, which, in consequence, we have merely glanced at^ Secondly. — We pass now from the class of cases in which the aid of equity was afforded to supply the infirmity of the common law in respect of evidence, to that where a jurisdiction was exercised to repress needless and vexatious litigation at law, as in Bills of Peace ; or to provide for a fair and sufficient trial in the proper forum, as in the case of bills to establish wills. Here the jm'isdiction, though " auxiliary," in the sense that the equity court did not altogether super- sede the common law jurisdiction, was exercised upon very different principles from those regulating the auxiliary jurisdiction in cases of the first class. In cases of the first class the jmisdiction may be accurately termed " ancillary." In those of the second, equity no longer appears as the handmaid, but is found superintending and regulating the legal proceedings, guiding them in fact to a just and fair result. To consider, first, " BiUs of Peace." It occasionally happens that many persons, posses- sing or supposing themselves to possess some common right, find that right disputed by some other person who is in a position, if so inclined, to litigate sepa- rately at law with each of his opponents their title to the common right alleged. Take, as an instance, the case of a manor, with several copyholders, and of a dispute arising as to the amount of the fine payable to the lord by the copyhold LECTURE VI. 201 tenants. Here the lord might, if he chose, htigate separately -nith each tenant the question respecting the fine to be paid. After failure in a trial with one, he might discover new evidence, and try whether, with his additional evidence, and possibly a more favom-able jury, he might not be more successful against another copyholder. And this might be repeated ad libitum. The only check would be, the increased probability of defeat after every new failure, and the correspondingly increasing probability of having to pay costs. On the other hand, the vexation might proceed from the tenants, who might seriatim and in detail harass the lord after repeated failm'es on their part. In a case of this kind, equity supplies a remedy- by what is called a Bill of Peace. Either the suc- cessful tenants may file their bill against their hti- gious lord, or the successful lord against his litigious tenants, claiming to have the right ascertained and quieted. In reference to this jurisdiction, the case of the Mayor of York v. Pilkington (a) is especially instruc- tive as being only just within the boundary-line which separates cases fitted for a Bill of Peace from those which are not. In fact, you will find Lord Hard- wicke was at fiirst of opinion that the bill would not lie in the particidar case, and subsequently that it would. The bill was filed by the corporation of York, claim- ing a sole right of fishery over a large tract of the river Ouse, against the defendants, who claimed several (a) 1 Atkyns, 282. 202 LECTURE VI. rights either as lords of manors, or occupiers of the adjacent lands. Lord Hardwicke at first thought that there was not a sufficient community of right between the defendants to make the case suitable for a bill of peace, the defendants not all claiming or defending in the same character, as where you have tenants of a manor on the one side and lord on the other; parishioners, in the old tithe suits; on the one side, and parson on the other. And upon this ground he, in the first instance, allowed a demurrer to the bill. Subsequently the demurrer was set down to be re- argued, and his Lordship held that the existence of one general right claimed by the plaintiffs was suffi- .cient to sustain the bill, although the defendants might make distinct defences ; and the demurrer was ultimately overruled (a). It may be observed that bills of peace have, of late years, become exceedingly rare ; though previously to the Statutes for the Commutation of Tithes, this class of bill occurred frequently in the shape of a suit, either by a parson to establish his right to tithes, or by parish- ioners to estabUsh a modus. Occasions may, how- ever, even a;t the present day, occur, when a bill of peace would be a fitting step. You will find in " Van Heythusen's Equity Precedents " (fc) a form of a bill, (a) In a recent case, where a person claiming to be the owner of a patent had filed 134: bills against different defendants, Lord Westbury, L. C, directed the yalidity of the .patent to be tried as against three selected defendants, representing different classes of alleged infringers, thus virtually giving the defendants the benefit of a bill of peace against the alleged patent owner ; Foxwell v. Webster, 10 Jurist (N.S.), 137 ; 4 De Gex, Jones, & Smith, 77. (6) Vol. i. p. 611 ; see the decrees at pp. 614, 622. LECTUEE TI. 203 the object of which was to obtain the benefit of former decrees, fixing all the inhabitants of a particular dis- trict with a liability to grind their com at a XDarticular null. But, besides the cases which we have just been con- sidering, where the opportunity for vexatious litigation arises out of the number of claimants on one side, there is another in which, although the parties litigant be merely A on the one hand and B on the other, trial after trial may be had, subject only to the check imposed by the fear of having to pay costs. I alhide to proceed- ings in ejectment. The action of ejectment was, if j'ou recollect, origin- ally a convenient invention for trying the title to land without the formality of a real action. Thus Jones claimed the freehold against Thompson, the latter being in possession. The following fiction was supposed : — Jones, the claimant, was treated as having entered upon the land, and as having, after entry, made a lease to Doe. Next, it was supposed, that while Doe was on the land, claiming under the lease ; Roe, claiming title under Thompson, the person really in possession, had come and turned Doe out. Roe was called the casual ejector. To seek redress for this imaginary wrong, an action was commenced in the name of Doe against Eoe. Doe, on the demise of Jones — the real claimant — against Roe (a) was the title of the action. Notice of this action was given to Thompson, who was let in to defend on the terms of his admitting all the fictitious supposi- (a) Doe dem. Jones r. Koe. 204 I^CTUEE VI. tions, viz., that Jones had leased to Doe, that Doe had entered, and that Eoe had turned Doe out. To use the ordinary phraseology, the real defendant, Thompson, had to confess, lease, entry, and ouster. In its subsequent stages, the suit proceeded so as to try the real point between Jones and Thompson ; and ulti- mately there was a verdict for or against Doe, as the case might be. Now, although generally the courts of law moulded this fictitious action so as to work effectual justice, we find here and there curious anomalies flowing from the fiction which it involved. Thus, for instance, although the sovereign cannot, as you know, sue or be sued in his own court, yet he might maintain an ejectment — for the ejectment would be brought in the name of Doe, or Goodtitle, as lessee; and the lessee of the sovereign must needs have his remedy as well as other lessees. Accordingly, in the thii-teenth volume of Meeson and Welsby's Eeports, you wiU find a case of Doe dem. William IV. v. Eoberts. Again — and it is with this anomaly we are here concerned, since the plaintiff was Doe, Goodtitle, or some other imaginary person — ^if one ejectment failed, another might be brought imme- diately after, and a third and fourth, and so on, ad infinitum. For the new plaintiff was not, in legal con- templation, the same person as the one who had failed in the former action. Any name might be selected for the imaginary plaintiff. The only check at law upon repeated and vexatious ejectments was the practice adopted by the common law courts of staying sum- marily a fresh ejectment until the costs in the former LECTUEE VI. 205 action had been paid ; a restraint obviously inadequate to meet the real justice of the case. Under these cir- cumstances, the equity courts, in cases of repeated and vexatious ejectments, when the right had been suffi- ciently tried, took upon themselves to interfere and stay further litigation. This bi-anch of jurisdiction cannot be said to have been finally settled until the case of the Earl of Bath V. Sherwin (a), which is a leading case on the subject. There the plaintiff's title had been established in five successive ejectments, and he brought his bill for a perpetual injunction, and to stay the defendant bringiag any more ejectments, and to put his title in peace. Lord Cowper, on the original hearing before him, after observing in his judgment upon the jurisdiction assumed by the court in cases arising between lords of manors and tenants, said : — " If in case the right between the lord and the several " tenants was to be settled in separate actions, the diffi- " culty upon the lord would be insuperable, bj^ reason " of the multiplicity of suits at law ; the like in settHng " boundaries, &c. : therefore this court will uiterpose " and direct an issue to be tried; and the conscience " of the court thereby informed and satisfied, this court " will then put the whole in peace by a perpetual " injunction. " But this case," he said, "was in its nature new, " and did not faU under the general notion of a bill of " peace, this being only between A and B, and one man (a) Preoedenta in Chancery, 261. 206 LEOTURE VI. " is able to contend against another; and if the conrts " of law on new demises wiU not suffer the former " verdicts to be pleaded, he could not help it : he said " he was satisfied of the vexatiousness of the defendant " in this case : but if it was a grievance, it was in the " law, which was proper for another jurisdiction, viz., " the parliament, to reform ; and that it would be " arrogance in him by decrees or injunctions to take " upon him the reformation of the law." However, the House of Lords, upon appeal from Lord Cowper's decision, took a different view, and granted an iaj unction (a). Now, with reference to bills of this last class, the Common Law Procedure Act of 1852 (6), though con- signing Doe and Roe to the grave, has retained the anomaly derived from their former existence : I mean the non-conclusiveness of the action of ejectment ; the 207th section of the Act expressly providing, " That " the effect of a judgment in an action of ejectment " under that Act should be the same as that of a judg- " ment in the action of ejectment theretofore used." The Procedure Act of 1854 (c) has somewhat improved the position of persons harassed by repeated ejectments, the 93rd section enacting that a person bringing a second ejectment after a prior unsuccessful one, maybe ordered to give security for costs. But subject to these restrictions the right to bring repeated actions stiU exists, and the auxiliary jurisdiction of equity to quiet {a) i Brown's Parliamentary Cases, 373. (5) 15 & 16 Yict. cap. 76. (c) 17 & 18 Vict. cap. 125, LECTURE VI. 207 titles against vexatious ejectments must therefore be regarded as still needful and in force (a). Of the heads of auxiliary jurisdiction mentioned by me at the outset, " Bills to Establish Wills " alone remain. There is, perhaps, hardly any portion of our judicial machinery which affords less ground for satisfaction than that which has been provided, or rather suffered to exist, for the litigation of matters testamentary. Let us first consider the state of the law as it stood previously to the Act of last session (fc) . AVhen, upon the death of a person, a document is produced purporting to be his will, two questions obviously arise. First, is the document really and legally his will ? — that is, was it really executed by him when of sound understanding, and with full know- ledge of its contents ? — and is it executed and attested in the manner required by law ? Secondly, what is the meaning of the document itself? We have the question of "Factum," and the question of "Con- struction." Now, in reference to both these questions, the jui-is- diction was altogether until the late Act (c), and indeed still remains to a considerable extent, different accord- ing as the property affected by the will was or is real or personal estate. We will take Personal Estate first. (a) And generaDy if there be a defence in equity it can be made available only by bUl, as there can be no equitable plea in an action of ejectment, S'eave v. Avery, 16 Common Bench Reports, 328. (J) i.e., 20 & 21 Vict. cap. 77, passed in the session previous to the delivery of the Lectures. (c) 20 & 21 Vict. cap. 77. 208 LECTUEE VI. In the earliest ages of our legal history, if a man died intestate, the bishop or ordinary used to take possession, either of the whole or of the disposable portion, as the case might be, of his personal estate ; and apply the same for the spiritual benefit of the soul of the departed, and the temporal advantage of Holy Church (a). Hence, where a deceased person had made a will, it was natural that it should be produced to the " ordiaary," that he might be satisfied on that point ; and this no doubt was the source of the testamentary jurisdiction of the ecclesiastical courts, which thus became, and until the late Act continued to be, the proper tribunals for determining the factum of the will, so far as related to the personal estate affected thereby. Next, as to construction. The Ecclesiastical Court had no power to put a construction on the wiU, except so far as might be necessary for determining to whom probate or administration with the will annexed should be granted. The function of construing wills, so far as related to personal estate, devolved on the equity courts, and stiU remains with them as part of their jurisdiction in reference to the administration of the estates of tes- tators and intestates ; a head of exclusive jiuisdiction which was touched upon in my fourth lecture. Secondly. — As to Eeal Estate. Here, subject only to the qualified interposition of the equity courts, which will be presently explained, the common law court, {a) The statute of tie 13th Edward I. stat. i. cap. 19, first compelled the ordinary to pay the deceased's debts ; and that of the 31st Edward III. cap. 11, first took the administration from the ordinary, and gave it to the next of kin. LECTURE VI. 209 and the jury, each acting within its fitting province, were alone the judges both oi factum and construction. The question of will or no will was tried before a jmy at Nisi Prius. Questions of construction were decided by the court in Banc. With the question oi factum, the Ecclesiastical Court had here no concern. No investigation in that court, however elaborate in re- ference to the factum of the wiU, could in the slightest degree govern or affect the rights of those claiming the real estate of the deceased, either under or against his will. The anomaly of the double jurisdiction was less glaring before the WiUs Act of 1837 {a), because the Statute of Frauds (fo) had imposed special formalities of execution and attestation in regard to wills of real estate, while none such were required in reference to wills of personalty. Yet even then, after a pro- tracted litigation in the Prerogative Court, and before the court of delegates, upon the question whether a testator was of sound mind, and after a decree actually pronounced deciding him not to be so, and recalling probate on that ground, it was open to a devisee claiming under the same instrument to contend that the deceased was of sound mind, and the will a good wUl. I have myself known a learned conveyancer hesitate to accept a title of real estate derived under an heir, though his ancestor's will had been set aside in the Ecclesiastical Court, after twenty-five years of celebrated litigation. (a) 1 Vict. cap. 26. (b) 29 Car. II. cap. 3, a. 5. V 210 LECTURE VI. But when Lord Langdale's Act had subjected wills, both of personal and real estate, to the same forms of execution and attestation, the divided jurisdiction shocked common sense more strongly. That first a learned judge of the Prerogative Court, and afterwards, on appeal, the Judicial Committee of the Privy Council, should solemnly determine a wUl to be well executed and attested so as to bind personal estate ; and that the whole matter should be open to new litigation in the common law courts as respected realty, seemed an outrage on administrative justice. Such, previously to the recent Act {a), was the state of testamentary jurisdiction ; and it will be more con- venient if, before adverting to the Act itself, we point out the nature of the Chancery jurisdiction, in regard to " establishing wills," — the head of auxOiary equity under consideration. Under the state of law which we have above slightly sketched out, a devisee of real estate had, apart from the interposition of equity now to be explained, no power to take active steps to establish the validity of the will under which he claimed. Until the heir chose to dispute the will, he (the devisee) could only remain passive. The heir might lie by until the evidence in favour of the will was partially lost by death or otherwise. There was no court to which the devisee could go like the executor or residuary legatee, and say, " decide upon the factum of this will." (a) i.e., 20 & 21 Vict. cap. 77. LECTURE VI. 211 Under these circumstances, Cliancerj^ lent its aid ; and the devisee might obtain its assistance in two different ways. First. He might file a bill against the heir in the nature of a bill for perpetuating the evidence of the testator's somidness of mind, and of his execution of the will ; — a kind of bill which, iu technical language, was commonly called a bill to prove the will per testes. The witnesses to the wUl were examined as to the testator's sanity, and the fact of execution ; and the cause, like other causes for the perpetuation of testi- mony, was never brought to a hearing ; though, unlike ordinary causes of this description, the witnesses' depositions were published at once (a). This process was commonly called proving a will in Chancery. Secondly. The devisee might file a bill against the heir seeking to have the will estabhshed, i.e., unless the heir waived an issue, to have the validity of the will tried before a common law jury upon an issue of " Devisavit vel non." In this case the Court of Equity retained the bill until the question of its validity had been determined iu an issue, reserving to itself the power, if it thought expedient, of directing a second or even a third trial of the issue ; and finally by its own decree established the validity or invahdity either (a) This was expressly so stated by Graham, B., in the case of Hams v. Cotterell, 3 MeriTale, 680, where the practice as to publication was care- fully considered. Yice-ChanceHor Wood, in his elaborate judgment in Boyse-w. Eossborough, Kay, 71 (see p. 102), seems to have considered there was no difference between the practice as to publication of depositions in this class of bill, and that which was observed in reference to ordinary biUs to perpetuate testimony. V 2 212 LECTURE VI. of the will generally, or of any particular devise, and thus quieted further litigation. You will hear with some surprise, however, that it was reserved for these recent times to ascertain and determine the precise nature of the jurisdiction of the Court of Chancery in reference to " Bills to Establish Wills." It is only four years since, that in the case of Boyse v. Rossborough (a), Vice-Chancellor "Wood, after reviewing in the most elaborate manner the whole history of this branch of jurisdiction, decided that a bill of this species could be maintained by a devisee of the legal estate against the heir, although the latter had brought no ejectment. It was argued strenuously that some circumstance, either of trust or of dis- turbance by the heir was necessary to support such a bill; but the Vice-Chancellor decided that, both upon principle and authority, there was an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will estabhshed against the heir (b). You -will find in the Vice-ChanceUor's judgment such a complete review of the whole question, that I am the (a) Kay, 71 ; on appeal, 3 De G-ex, Macn. & Gor. 817. There was an appeal to the House of Lords, but the judgnient of the Court of Appeal was submitted to without argument, 3 Jurist (N. 8. ), 373. (h) And a devisee is equally entitled to have the will under which he claims established in equity, not only against the heir, but against all jiersons setting up adverse rights ; as, for instance, persons claiming under a prior will, and disputing the validity of the latter one ; Lovett v. Lovett, 3 Kay & Johnson, 1. But the heir has no correlative right to file a bill in Chancery against a devisee to set aside a will on the ground of fraud ; Jones V. Gregory, 33 Law Journal (N.S.), Chanc. 679; s. c. 4 Giffard, 468 ; 2 De Gex, Jones, & Smith, 83. LECTURE VI. 213 less concerned at the meagreness of my statements here. Ijet us now consider the effect of the Act of last session (a), which has just come into operation. By that Act a new court, called the Court of Probate, is established, to which all the old testamentary jurisdic- tion of the Ecclesiastical Courts is transferred. In reference to real estate, the material sections are the sixty-first and the sixty-second. The former of these provides in substance that where proceedings are taken to prove a will in solemn form, or to revoke a probate ah-eady granted, aU persons interested in the real estate affected by the will, such as heirs, devisees, &c., shall be cited (b). The latter provides that where the will is proved in solemn form, or its validity other- wise established in the Court of Probate, and when probate is refused or revoked, or the invalidity of the will is otherwise declared, the decree of the Court shall be binding on the persons interested in the real estate (c). Under these sections, therefore, when the factum of a will has been once solemnly determined in the Court of Probate, it will be determined finally as respects real as well as personal estate. It is to be observed, however, that it by no means follows that all questions (a) 20 & 21 Viet. cap. 77. (6) See Lister v. Smith, 3 Swabey & Tristram, 53. The 35th section confers on an heir-at-law an absolute right to demand a juiy. (c) The 63rd section renders it unnecessary to cite any heir or other person interested where there is no real estate, or where the will would not, though established, affect real estate. And the decree of the Court is in no case to affect heirs or other persons, unless cited or deriving title under or through a person cited. 214 LECTURE VI. respecting the factum of testamentary instruments will, as respects real estate, be in future determined in the Court of Probate. Cases may yet occur where a will may be proved in common form in the Coiirt of Probate ; and the heir alone being interested in dis- puting its validity, the validity may be first questioned in an action of ejectment (a). We may, indeed, have the following events occur- ring : — First. Probate in common form. Secondly. Litigation in ejectment, calling in ques- tion the testator's sanity, or the genuineness or valid execution of the alleged will. Thirdly. The question of sanity, genuineness, or vaHdity of execution, Ktigated a second time in the Court of Probate. For although after the heir has been cited in the latter Court the decision there will bind him elsewhere, the decision of the common law court, as between the {a) Thus, for instance, a testator dies, having by his will, the validity of which is doubtfol, devised his real and personal estate (the former of which descended to him ac parte paternd), upon trust to sell and convert and pay the net proceeds, in unequal shares, amongst his half-brothers and sisters ex parte matemd, who are his next of kin. Here assuming the real estate to be large in proportion to the personal estate, it may be the interest of all the next of kin, including those who take the smaller shares, to support the will ; which therefore may very likely be proved in common form. Then upon the heir ex parte paternd litigating the validity of the will as to real estate in the common law court, and succeeding, it v.-ill become the interest of those of the next of kin who take the smaller shares to set aside the will as to the personal estate ; and this, if resisted by the other next of kin, may lead to a second litigation in the Probate Court. Again, at first, the personal fstate may he thought trifling, and after litigation at law valuable personalty may be discovered. LECTURE vr. 215 heir and person claiming as devisee, can have no effect in the Probate Court as between those claiming the personal estate under the will and the next of kin (a). The prospect of a different final result, in respect to the operation of a will upon realty and personalty, is no doubt somewhat remote ; the appellate jurisdic- tion, in reference to wills of personal estate, having by the late Act (&) been transferred from the Judicial Committee of the Privy Council to the House of Lords ; to which latter therefore the ultimate appeal now lies, in respect to wills of both species of pro- perty. Considerations of expense might, however, where the property is small, preclude an ultimate resort to the House either from one or from both of the subordinate tribtmals respectively entitled to adju- dicate, and thus leave conflicting decisions on record ; and, on the whole, it cannot be said that the Act has done more than mitigate the inconveniences of the double jurisdiction (c). As respects the head of equity now under consider- ation, " Establishing Wills," that must, to a great extent, still prevail. (a) Nor can the solemn decision of the Probate Court affect a devisee who may happen not to have heen cited ; e.g., a remainder-man not i» esse at the time of the litigation in that Court, and therefore not cited. (6) 20 & 21 Vict. cap. 77, s. 39. (c) The difference of views between the Court of Probate (see Smith v. Tebbitt, L. B. 1 P. & D. 398) and the Court of Queen's Bench (see Bankl V. Goodfellow, L. R. 5 Q. B. 549) upon the question "whether partial ' ' unsoundness of mind, not affecting the general faculties, and not " operating on the mind of a testator in regard to the particular testamen- " taiy disposition, is sufficient to deprive a person of the power of disposing " of his property," affords an illustration of the inconvenience adverted to in the text. 216 LECTURE VI. When the will has been merely proved in common form, the devisee will have no power tinder the Act of provoking the exercise of the contentious jurisdiction of the Court of Probate, and he will remain in the same position as be was under the old state of law. If barassed by the heir, a bill to establish the will will obviously be bis simplest course; if in quiet possession, but wishing to establish his title wbile the evidence is at hand, he must still, unless he can through the friendly assistance of some next of kin bring about a contentious litigation in the Court of Probate, resort to the Court of Chancery as here- tofore. LECTUEE VII. Mt selection of the wife's separate estate for con- sideration as a particular instance of the exclusive jurisdiction of the Court of Chancery is easily justified. In fact, I may well be allowed a preference in favour of what has worked for good ; and seldom has the creative, nay, almost legislative jurisdiction of the Coui't, been exercised more beneficially than in build- ing up the doctrines relating to the wife's separate estate. It is no smaU merit to have gained for married women that capacity of holding property and of con- tracting which the law denied them, and to have rescued the jurisprudence of our country from the imputation of barbarism under which it must other- wise have lain. Notwithstanding however what has been done for the ladies by our equity jurisprudence, I apprehend that they commonly refer to it with less affection than energy. They speak often, I am afraid, of that " horrid Court of Chancer)^," little knowing — and in their want of knowledge lies their excuse — what they owe to it, and to the equally horrid lawyers with their long deeds. But the selection of the wife's separate estate recom- mends itself by other considerations. Amongst these 218 LECTUEE vn. may be mentioned the circumstance that the equitable doctrines relating to the separate estate are of such recent crigiu, that their birth and growth can be traced with far greater distinctness than those of almost any- other head of equity. The earliest commencement indeed of the separate estate cannot be carried more than two hundred years back ; and the final settlement of some of the more important of its doctrines was, as we shall presently see, reserved for the chancellorship of Lord Cottenham. Lastly, at the present time, when everything which pertains to the relation of " husband and wife " is canvassed and criticised with the greatest miauteness, and when the approach of a struggle to place that relation on a different footing in regard to property is clearly discernible (a), the consideration of the wife's separate estate commands especial in- terest. I propose dealing with the subject of my lecture in the following order, viz., I shall consider : — 1. The general doctrines of the Court respecting the Separate Estate and its modern adjunct, Be- straint on Anticipation. 2. By what acts inter vivos the wife may alienate or affect her separate estate. 3. The wife's testamentary power over her sepa- rate estate. 4. The devolution of the separate estate where (a) The struggle has since taken place, and its first fruits are to te found' in the Married Women's Property Act, 1870 (amended by the Act of the last session, 37 & 38 Vict. cap. 50), of which a summary is given pages 122, 123, ante, but which affects only in a very minute degree the points discussed in this lecture. LECTURE vn. 219 the wife has neither aliened it in her lifetime nor disposed of it by testamentary instrument ; and 5. I shall make some special remarks respecting separate estate in freehold property. At the same time I propose, so far as possible, treating my subject historically. It is probably true that in the study of our equity system (built up as it has been bit by bit) the chronological method is generally the s&undest ; but certainly no one can be said to possess the master-key to the understanding of the doctrines of the separate estate who is ignorant of their history. 1. — As respects the general doctrines. At law the husband upon marriage became entitled to an estate during the joint lives of himself and his wife in his wife's freehold property, which estate upon birth of issue was enlarged into one for his own life — the estate by the curtesy. His wife's personalty became his absolutely, subject only to the necessity for reduc- tion into possession spoken of in my fourth lecture (a). The wife, on the other hand, was after her husband's death entitled to dower, or to her jointure when a jointure had been provided in lieu, and also to a share of his personal estate ; but the notion of conferring upon her any rights of property during the marriage, was alike foreign to the principles of the common law and to the general feelings of our ancestors. The only exception that I am aware of was in the case of the queen consort; Of her, Lord Coke says in his Commentary upon Littleton (&) : " But by the (a) p. 122 supra. (i) Coke Litt. 133 a. 220 LECTUEE VII. " common law, the wife of the King of England is an " exempt person from the king, and is capable of lands " or tenements of the gift of the king, as no other "feme covert is, and may sue and be sued without the " king; for the wisdome of the common law would " not have the king (whose continual! care and study " is for the puhUke, et circa ardua regni) to he " troubled and disquieted for such private and petty " causes : so as the wife of the King of England is of " ability and capacity to grant and to take, to sue and " be sued as a fime sole by the common law." The earhest instances of conferring anything in the nature of separate property upon the wife during the coverture were, to the best of my research, those in which, upon a separation between husband and wife by agreement, a separate maintenance was secured to the latter. Such were the cases of Sanky v. Goitlding (a), decided in Queen Elizabeth's reign (a) Gary's Kep. 124, Edition, 1820. This is the earliest reported case that I have hitherto met with recognising a separate maintenance. I transcribe it verbatim : — " The plaintant setteth forth in her bill that she joined with her husband " in sale of part of her inheritance, and after some discord growing betweene " them they separate themselves ; and one hundred pound of the money ' ' received upon sale of the lands was allotted to the plaintant for her ' ' maintenance, and put into the hands of Nicholas Mine, Esquire, and ' ' bonds then given for the payment thereof unto Hairy Golding, deceased, ' ' to the use of the plaintant ; which bonds are come to the defendant, as " administrator to the said Henry Oolding, deceased, who refuseth to " deliver the same to the plaintant, and hereupon she prayeth relief e ; the " defendant doth demur in law, because the plaintant sueth without her ' ' husband ; and it is ordered the defendant shall answer directly. Mary " Sanhy alias Walgrave plaintant, Goulding defendant. Anno 21 & 22 " Eliz." The wife's, or perhaps one ought to say the widow's right to her LECTURE vn. 221 about 1580, and of Gorges v. Chancie in the 15th Charles I., 1640 (a). Next, so far as I can judge, came cases in which, pursuant to ante-nuptial agi-eement, a term in lands was limited to trustees upon trust to pay the rents and profits to the wife for her separate use during the covert m-e. In " The Perfect Conveyancer," printed 1655, a book of precedents of considerable authority, I find no notice of any provision in favour of a married woman beyond limitations of jointures ; but in the collection which we owe to the pen of Sir Orlando Bridgeman, who ad- hered to the royal party and practised only convey- ancing during the commonwealth, you may see a pre- cedent of a limitation of a term to trustees upon trust for the separate use of a married woman, which ia ful- ness and accuracy of language is hardly surpassed by our modem forms (b). It purports to be a demise after marriage by a hus- paraphemalia, was recognised as early as the 26th Eliz. See Viscountess Bindon's Case, 2 Leonard's Reports, 166, placitum 201. But this right is, in its essence, diiferent from that of the separate estate, as having no permanent vitality during the covertwe ; since the husband may sell or give away the wife's pa/raphemalia during his lifetime ; though if he merely pledge them, the widow is entitled to have them redeemed out of his general personal estate : see Seymore u. Tresilian, 3 Atkyns, 358 ; Graham v. Londonderry, 3 Atkyns, 393. (a) Beferred to at Tothill, edit. 1649, p. 97 ; edit. 1671, p. 161 ; and more fuUy at 1 Cases in Chancery, 118. There is a kind of intermediate case of separate maintenance mentioned at TothiU, edit. 1649, p. 94 ; edit. 1671, p. 158 (Fleshward v. Jackson, 21 Jac.), where there had been no separation apparently, but the husband is stated to have been an unthrift. (b) Bridgeman's Precedents, edition of 1682, p. 118 ; somewhat singu- larly, the precedent is repeated verbatim at p. 125. 222 LECTURE vn. band and wife, in pursuance of an agreement entered into before marriage, unto trustees for the term of sixty years, if the husband and wife shall both of them jointly so long live. The principal trust is as fol- lows : — " Upon such trust and confidence neverthe- less, as is hereinafter mentioned, that is to say, that they the said \trtistees^, their executors, adminis- trators, and assigns shall, from time to time, during ' the said term, employ and dispose of all and singular ' the premises hereby demised, to and for the sole, ' proper, peculiar and separate use, benefit, and main- ' tenance of the said [wi/e], and not for the use or ' benefit of the said [husband] , nor as he shall direct ; ' but shall from time to time, and at aU times drndng ' the said term, pay, employ, and dispose of all the ' moneys to be had, levied, or raised out of the said ' premises (other than such moneys as shall be, from ' time to time, expended in managing and performing ' the trust hereby reposed, which it shall and may be ' lawful for them, fi:om time to time, to deduct), into ' the proper hands of the said [wt/e], or into the ' hands of such person as she shall, from time to ' time, alone without the said [husband] , by any ' writing or writings by her signed with her own ' hand, appoint the same to be paid, and not other- ' wise." Then follow a stipulation not to dispose of the moneys to the husband, a proviso that if the husband be liable for any debts of the wife the trustees shall pay them, and covenants for title. This precedent, penned as it probably was some two LECTURE VII. 223 hundred yeaxs age — ^for the author of it became Chief Justice of the Common Pleas a few months after the Restoration of 1660, and presumably did not prepare drafts after that date — is certainly a remarkable in- • stance of advanced conveyanciag skill ; and it may perhaps be regarded as the legitimate ancestor of our present pia-money forms — just as Sir Orlando himself has been called the father of conveyancing — though the word " pin-money" does not once occur in it. Be this as it may, a separate allowance to a wife during marriage for personal expenses may claim an antiquity of some two hundred years. In reference to the precise date of the origin of the separate estate in the larger sense, as extending be- yond a mere personal allowance, that may be fixed some time between the years 1668 and 1705. At the earlier of those dates we find it attempting to struggle into existence in the form of an ante-nuptial contract by the husband with the wife, and foiled in its efforts by the very Sir Orlando Bridgeman (then Lord Keeper) who penned the form to which I just now called your attention. I refer to the case of Pridgeon V. Pridgeon (a). In that case the plaintiff, the wife of Sir Francis Pridgeon, suggested that the latter before his marriage agreed with her, and others on her behalf, that notwithstanding her marriage, " the rents and " profits of all her own estate and what personal estate " and goods she had should be at her own disposal," Final judgment does not appear to have been given ; but the Court intimated its view to be that, " where (a) 1 Cases in Chancery, 117. 224 LECTUEE VII. " an agreement between baron and feme is to have' " execution during the coverture, the marriage extin- " guisheth such an agreement ; " a result which I maj'' observe was not only unsound, as importing into equity a mere technical rule of law, but difficult to sustain. uj)on the agreement stated, which is said to have been not merely with the wife, but with friends on her behalf , Sir Orlando, however, though the most eminent of conveyancers, was admittedly but iU acquainted with equity doctrines. At the latter date (1705), we find, on referring to the case of Gore v. Knight (a), that ■ the separate estate, at least under the guise of a power reserved to a married woman before her marriage to dispose of her personal estate by deed or will, was then fully recognised. The, precise mode in which in this particular case the power was reserved does not appear ; but the whole tenor of the report shows that a separate estate in the corpus of property was then known to the equity com'ts. It may, however, be fairly inferred from a number of the Spectator (the 295th, one of Addison's), to which the attention of the legal world was first called by a most entertaining note to Lord St. Leo- nards' treatise on the Law of Property, as adminis- tered by the House of Lords (6), that at the time when the number was written (and it bears date some seven years later than the decision in Gore v. Knight) the separate estate was by no means in general usage ; and the views put forward by Addison may perhaps be (o) 2 Vernon, 533. (6) Vide page 165 of the treatise. LECTURE vn. 225 accepted as not unfairly reflecting the general disfavour with which separate provisions for wives were at first regarded. In the article referred to, an imaginary corres- pondent of the Spectator (Mr. Josiah Fribhle), after detailing the circumstances under which he agreed to pay his wife 400L a year for pin-money, and his domestic miseries flowing therefrom, says, "I hope, " sir, you will take occasion to give your opinion upon " a subject which you have not yet touched, and in- " form us if there are any precedents for this usage " among our ancestors, or whether you find any men- " tion of pin-money in Grotius, Puffendorff, or any " other of the civilians." Upon this fictitious provo- cation the Spectator proceeds to give his opinion freely against pin-money, the following being his opening observations : " As there is no man living who is a " more professed advocate for the fair sex than myself, " so there is none that would be more unwilling to " invade any of their ancient rights and privileges; " but as the doctrine of pin-money is of a very late " date, unknown to our great-grandmothers, and 7iot yet " received by many of our modern ladies, I think it is " for the interest of both sexes to keep it from " spreading." Thus much for the Spectator's opinions respecting the general propriety of separate provisions in the shape of pin-money. The inference that the separate estate in the general sense could hardly have been in general use at the time when Addison wrote, is derivable rather from the tenor of the whole article than Q 226 liECTUEE vn. from any particular passage. Throughout the whole essay, which treats the mere existence of a separate allowance as objectionable on the general principle " that separate purses between man and wife are as " imnatural as separate beds," we find not a single allusion to any practice, either established or incipient, of reserving to the wife a power of disposition over her own property. Had any such course been otherwise than rare, it would probably have been alluded to by the Spectator, in his quasi judicial observations, as equally objectionable with pin-money. The general result, then, of my research may be thus stated : — First in order of antiquity came main- tenance to a wife separated from her husband ; then an allowance for personal expenses during marriage, or pin-money ; and last of the three, separate estate gene- rally, though under the guise in the first instance of a power. We pass now to the next step in the history of the separate use, namely, its establishment independently of any agreement with the husband. The earliest instances of " separate estate " are undoubtedly those in which the privilege was obtained through the medium of an express contract by the husband. It would seem further to have been admitted early in the history of the separate estate, that by interposing a trustee, property might be given for the separate use of a married woman without any contract on the part of the husband. But suppose property given to the wife herself, with a direction that it should be for her separate use, What then was the result? It was LECTUHE vn. 227 suggested that the property became the wife's, and, through her, her husband's, and that he was bound by no agTeement. The answer was clear — the separate estate was a species of trust — the trust should not fail for want of a trustee — if the husband took any legal interest, he would hold it as trustee for his wife. You will find the doubt raised by Lord Chancellor Cowper in 1710 (a), and disregarded in 1725 by the then blaster of the Rolls, Sir J^oseph Jekyll (6) ; since which case it has, I beheve, never been put forward. You will however of course bear ia miad, that where no trustees are interposed, the legal rights of the husband and of those claiming through bim remain unaffected, so that at law chattels personal to which the wife is entitled for her separate use may be taken in execution for the husband's debt (c). Equity will, however, in these cases interpose and protect the wife {d). , Passing on now some seventy years or so, we reach a most important epoch in oxir history — ^that, namely, of the invention of the clause restraining the married woman's power of anticipation. It had by that time become apparent that the absolute power of disposition given to the married woman over her separate estate (a) Harvey v. Harvey, 1 Peere Williams, 125. (h) Bennet v. Davis, 2 Peere WilUams, 316. (cj This statement must now be qualified so far as respects chattels made separate property by the Act of 1870, as to which the 11th section (see p. 123, anl4) gives the married woman the same remedies, both civil and criminal, in her own name as if she. were unmarried. As to such chattels she may therefore, it is conceived, proceed by way of interijleader at law. {cl) Newlands v. Paynter, 4 Mylne & Craig, 408. Q 2 228 LECTUEE VII. was really a fatal gift. Her husband, in many instances by undue influence, in some possibly by threats, in- duced or compelled her to dispose of her separate estate in furtherance of his own selfish views. At last a case occurred which forcibly directed attention to the unsatisfactory state of the law. I mean Pybus v. • Smith (a). In that case the question arose upon the post-nuptial settlement of a female ward of the Court of Chancery (a Mrs. Vernon) which had been executed in pursuance of a decree of the Court. By the settlement, which bore date May, 1785, real estate had been vested in trustees upon trust during the wife's life, to pay the income as the wife should from time to time appoint, and in default for her separate use, and there was a similar trust as to the dividends of a sum of stock, excepting that the worde "from time to time " were omitted in the power. In August, 1785, the wife joined in incumbering her life interest. The incum- brancers filed their bill to have the benefit of their sectcrity. The natm'e and result of the suit is thus graphically described by Lord Eldon (6). " So in " Pybus V. Smith, the Court settling the property (c), " with all the anxious terms then known to convey- " ancers, in a day or two afterwards, while the wax " was yet waim upon the deed, the creditors of the " husband got a claim upon it by an informal instru- " ment ; and the same judge who had made such [a) 1 Yesey, Jun. 194 ; 3 Brown's Ch. Ca. 340. (h) Jones v. Harris, 9 Vesey, 493. (c) His Lordship here alludes to the settlement of 1785. LECTURE VII. 229 " efforts to protect her (meaning Mrs. Vernon, the " wife), was upon authority obliged to withdraw that " protection." In fact. Lord Thui-low, after strug- gling hard to extract from the words " from time to " time " a fetter on alienation, held that he was boimd by the decisions. However, in dehvering judgment in Pybus v. Smith, Lord Thm-low expressed his opinion to be, "that "if it was the intention of a parent to give a pro- " vision to a child in such a way that she could not " alienate it, he saw no objection to its being done ; " but such intention must be expressed iii clear " terms " (a). And subsequently on becoming a trustee of Miss Watson's marriage settlement, he directed the words " and not by anticipation " to be added to those of the ordinary separate use clause : and the binding effect of the addition has never since been doubted. The next epoch in the history of the separate estate was the decision in Tullett v. Armstrong, a decision finally setting at rest a series of questions, resulting mainly from the invention of the restraint on anticipa- tion, which required some forty years for their com- plete solution, and which must be noticed before touching the case itself. In considering the effect of any given clause con- ferring the separate estate with restraint on anticipa- tion, the first question of course was, and still is, to ascertain whether, the separate use and restraint were in terms limited to some particular coverture, or were (a) 3 Brown'a Ch. Ca. 347. 230 LECTURE vn. intended to apply generally to every marriage. This must occasionally be a matter of some difficulty (a). But further, where the clause was general in its scope, various difficulties presented themselves. Thus, suppose property limited to the separate use of an unmarried woman, independently of any husband whom she might marry, with a restraint on anticipation; what were her rights in such a case ? "Would the separate use with its attendant restriction arise upon a futm'e marriage, in despite of the feme ? or had the feme power to ahen while sole ? This was a difficulty- entirely due to the introduction of the restrictive clause, since, under a limitation to her separate use simply, the wife would have a right of alienating upon either view. It was decided that the feme had an absolute right of alienation. The restraint on antici- pation was a fetter on the general rights of property which equity would allow in the case only of a married woman. The gift was therefore equivalent to an abso- lute gift, subject to a modification which the law did not suffer in the case of a feme sole, and she might therefore dispose of the property (&). Again, where the gift to separate use with restraint was in favour of a married woman whose husband sub- sequently died, the same question arose as to the rights of the widow. It was held in this case also, {a) See, as instances, Gaffee's Settlement, 7 Hare, 101, and on appeal, 1 Macn. & Gor. 541 ; Moore v. Morris, 4 Drewry, 33 ; and Hawkes v. Hubback, L. R. 11 Eq. 5. (J) This was so decided by Lord Brougham, in Woodmeston v. Walker, 2 Kussell & Mylne, 197 ; and Browne v. Pocock, 2 Kussell & Mylne, 210, OTerruling Sir John Leach's decisions to the contrary. LECTURE VII. 231 upon similar principles, that upon the coverture ceasing the restraint ceased also, and that the widow might alienate as she thought fit {a). But a third and still more important question remained, one which might at any time have arisen m reference to the separate use alone, previously to the introduction of the restrictive clause, but which after its introduction, became of far greater importance. It was this : In the case of a gift to the separate use, either with or without restraint on anticipation, so expressed as to be applicable to any marriage with any husband, what were the rights of a first husband where the donee, being a feme sole, married without exercising her power of alienation ? And again (which was substantially the same point), what were the rights of a second husband where the donee, being a feme covert, became a widow and remarried without having aliened during her widowhood ? Taking first the case of a gift to the separate use simply, the opinion of Lord Cottenham originally was, that when the estate and interest of the feme had once become absolute, either in consequence of her being unmarried or of the coverture being determined by the husband's death, the quality of separate property could not, upon a subsequent or second coverture, be revived. This was the effect of his judgment in the ease of Massey v. Parker {b), which for some four years (a) See Jones v. Salter, decided ty Sir William Grant, some fifteen years before Lord Brougham's decision in Woodmeston v- Walker, but reported in the same Tolume, 2 Russell & Mylne, 208. (6) 2 Mylne & Keen, 174. 232 LECTUEE vn, threw the legal profession into agitation. On the other hand, the late Vice-Chancellor of England con- sidered that the separate estate, if not interfered with previously to marriage or re-marriage, survived, so to speak, into the subsequent or second coverture, as the case might be (a). As regarded the restraint on anticipation (which in Lord Cottenham's view necessarily feU with the sepa- rate use, to which it was a mere appendage), the Vice- ChanceUor of England held that though the separate use did revive, the restraint on anticipation, when once at an end, could not do so. It was reserved for the great case of Tullett v. Arm- strong, in which, in 1838, the whole question was reconsidered and re-\dewed, first by Lord Langdale, and subsequently by Lord Cottenham, to overrule both Lord Cottenham's views and a series of decisions of the Vice- Chancellor of England. In Tullett V. Armstrong (b). Lord Langdale, upon an elaborate review of the authorities, held that the sepa- rate use, and the restraint on anticipation, must, in regard to their operation in the event of a subsequent or second coverture, stand or fall together ; and that where either the unmarried woman before marriage, or the widow before a second marriage, omitted to exercise her power of alienation, there either the separate use, or the separate use with its accompanying restraint, would, if apt words were used, revive, so to speak, upon the marriage or second marriage, as the case might be. (a) See Davies «. Thomycroft, 6 Simons, 420. (i) Reported at the Eolls, 1 BeaTan, 1. LECTURE vn. 233 Lord Cottenham (a), -when the same case came before him on appeal, was clearly of opinion that the separate use and restraint on anticipation must stand or fall together. He seems, however, to have doubted greatly whether any satisfactory principle could be found upon which the preservation of the separate estate, during a subsequent or second coverture, could be supported ; but ultimately receding from his former opinion as expressed in Massey v. Parker, and found- ing his decision rather upon its presumable beneficial tendency than upon its logical correctness, he affirmed the judgment of the Master of the EoUs, consoling himself with the reflection that, ia the exercise of his judicial power, he was not doing more than his pre- decessors had done for similar purposes. This decision may be said to form the last great epoch in the history of the separate use. 2. — I pass to the consideration of the question. By what acts " inter vivos," the wife may ahen or affect her separate estate ? Here we find a gradual progressive development, which, even at the present day, cannot be said to have reached full growth. The wife's power of alienating her separate estate by any written instrument denoting her intention of so doing, was necessarily always an essen- tial ingredient in the notion of separate property. At a later date, it was held that if a married woman, entitled to a separate estate, professed to bind herself by any written instrument, the execution of which by her would be nugatory unless it operated against her (a) i Mylne & Craig, 377. 234 LECTUEE vn. separate property, the Court would infer a contract by her to bind her separate estate. Thus a married woman executed a bond, or signed a promissory note. Her execution or signature would be worthless if viewed as evidence of a mere personal engagement ; and the courts of equity therefore said, they should be evidence of a contract to bind her separate estate. The leading case upon this point may be said to be Hulme V. Tenant, decided by Lord Thurlow {a). There a married woman entitled to rents and profits of real estate for her life for her separate use, joined with her husband in executing a bond; and Lord Thurlow held that her separate estate was made liable by the bond. Lord Eldon frequently expressed his disapprobation of this decision. However, it was followed by Sir Wm. Grant in the cases of Heatley V. Thomas (6) and Bulpin v. Clarke (c) ; and the law is now clearly settled, as I before stated it. But though it must now be held to have been law, as from the time of Lord Thurlow's decision in Hulme V. Tenant, that the contract of the married woman, neither referring to her separate estate nor professing to bind it, but purporting merely to bind herself personally, bound her estate and not herself ; and although the general reason for so holding was perfectly clear, viz., "ut res magis valeat," the precise («) 1 Bro-wn's CIi.- Ca. 16. (J) 15 Vesey, 596 ; a case of a bond given by the wife as surety. (c) 17 Yesey, 365 ; a case of a promissory note signed by the wife. And see McHenry v. Davies, L. K. 10 Eq. 88, in which case a bill and a cheque were endorsed and drawn respectively by the wife. LECTURE vn. 235 mode in which the contract operated remained for a long series of years in doubt. The views on this subject were mainly two. The first, and this the wrong one according to the law as now settled (a), that the dealings of the married woman were to be viewed as the execution of a power, or at all events as operating by way of disposition ; those who maintained this view attempting to assimi- late the case to that of a man who, having a power but no estate, professes to convey his estate, and is held to have executed his power. The second view, and this the correct one, was, that the married woman having contracted to pay generally, and being unable to bind herself person- ally, should be held to have contracted to pay out of her property. The two most important cases on this point are Murray v. Barlee (b), decided by Lord Brougham, and Owens V. Dickenson (c), decided by Lord Cottenham. Both these learned lords point out very clearly that the bond, promissory note, or other instrument, cannot possibly be treated as an execution of a power, since they neither refer to the power nor to the sub- ject-matter of disposition ; and, besides, that if these engagements of married women really operated as (a) The doctrine tliat the dealings are to be viewed as operating by way of disposition received in a recent case the sanction of Lord Komilly, see Shattock v. Shattock, L. K. 2 Eq. 182, pp. 193, 194 ; but this decision has since been dissented from by the Judicial Committee of the Privy Council ; see London Chartered Bank of Australia v. Lempriere, L. R. i P. 0. 572. (b) 3 Mylne & Keen, 209. (c) Craig & Phillips, 48. 236 LECTURE vn. appointments under power, they would, in the event of a married woman entering into many such engage- ments successively, be satisfied in order of date, the earlier engagements taking priority over the later : whereas it was and is admitted that in these cases all those claiming under similar engagements rank " pari passu." The principles upon which the engagements of a married woman, though not referring to her separate estate, are held to bind that estate, may be treated as now clearly settled by the judgments of Lord Brougham and Lord Cottenham, in the cases just mentioned; and in a very recent decision of Vice- Chancellor Wood (a), that learned judge, adopting the rule as laid down in Murray v. Barlee, and Owens v. Dickenson, expresses himselt thus : " Wherever a " married woman has property settled to her separate " use, and she enters into any contract by which it " clearly and manifestly appears that she intends to " create a debt, as against herself personally if the " expression may be used, it will be assumed. that she " intended that the money should be paid out of " the only property by which she could fulfil the " engagement "(6). But though the principles have been thus settled, there remains yet one point uncovered by decision. To what extent, if at all, do the " general verbal engage- (a) Boldent). Nioolay, 3 Jurist (N.S.), 884. (6) See, in accordance with this doctrine Matthewmaa's case, L. E. 3 Eq. 781, where a married woman was held to be a contributory in respect of shares taken by her in a company, and Picard o. Hine, L. K. 6 Ch. 274 ; McHenry v. Davies, L. R. 10 Eq. 88. LECTURE VII. 237 ments " of a married woman bind her separate estate ? The difficulty, if one may say so without presumption, seems to have been somewhat nursed into importance by the over-cautious language of those judges whose decisions furnish us with the soundest principles. Thus Lord Cottenham, in Owens v. Dickenson, says (a) : " I observe that in Clinton v. Willes, 1 Sugd. Pow. " 208, n., Sir Thomas Plumer suggested a doubt " whether it was necessary that the feme's engage- " ments should be secured by writing : it certainly " seems strange that there should be any difference " between a contract in writing, when no statute re- " quires it to be in writing, and a verbal promise to " pay. It is an artificial distinction not recognised " in any other case. On that point, however, I give no " opinion at present." If we were to hazard a conjecture as to the origin of Sir Thomas Plumer's doubt, it would be this : — he, like Sir J. Leach (&), considered that the dealings of the married woman were all by way of disposition of an equitable interest, and not by way of contract. If so, the engagement ought to be viewed as an assign- ment of a trust; and then, by the Statute of Frauds (c), would require to be in writing. The moment, however, it was clearly settled that the engagement operated by way of contract and not of disposition, aU conceivable ground for distinction between a written and an express verbal agreement was taken away. If a married (a) Craig & Phillips, p. 55. The reference to Sugden on Powers in the passage quoted is to the 6th edition. (5) See Greatley i). Noble, 3 Haddock, 79 ; Stuart v. Kirkwall, ib. 387. (c) 29 Car. II. cap. 3, s. 9. 238 LECTUEE vn. woman, haying a separate estate, says by word of mouth, for a good consideration, " I agree to pay you " iGlOO this day fortnight," her separate estate must, on every principle, be held bound. There remains, however, one class of cases in which considerable difficulty must often exist upon the ques- tion whether the separate estate is bound. I mean those in which there is no distinct engagement by the wife, written or verbal, to bind herself — where, in fact, the engagement is to be implied from her acts. Thus a married woman, having a separate estate, and living apart from her husband, is supplied by tradespeople with necessaries suitable to her condition in life. Is her separate estate bound? In the absence of any course of dealing or conduct to lead to a conclusion, the answer must, I think, depend upon whether the circumstances are such that the married woman was entitled to pledge her husband's credit ? Thus, if she were living apart from him, not by her own fault and without any allowance, he would be liable for suitable necessaries, and she ought to be held to have pledged his credit, and not her separate estate. If not entitled to pledge her husband's credit, her separate estate ought, I conceive, to be held bound (a). It is, however, right that you should understand that the whole question of the circumstances under which the verbal engagements of married women will be held (o) See Wright v. Chard, 4 Drewry, 684 ; Johnson v. Gallagher, 7 Jurist (N.S.), 274 ; 3 De Gex, P. & J. 494 ; Shattock «. Shattook, L. E. 2 Eq. 182 ; The London Chartered Bank of Australia v. Lempri&'e, L. K. 4 P. C. 572. LECTURE vn. 239 to bind their separate estate, must be treated as still requiring to be settled by express decision (a). There is one other mode in which a married woman may dispose of her separate estate, being in the nature of income, which demands some brief mention ; I mean, by letting her husband receive it. If she do this, it is clear that neither she nor her representatives can claim against bim or his representatives more than one year's arrears. Whether any arrears can be claimed must be considered a doubtful point (6). As respects that par- ticular species of separate estate known as pin-money, the House of Lords, in a celebrated case which has been severely criticised by Lord St. Leonards, I mean Howard v. Digby (c), decided that no arrears were recoverable. 3. — ^We proceed to consider the wife's power of dis- posing of her separate estate by a testamentary instru- ment. So late as Lord Thurlow's time, it appears to have (a) See the elaborate jiidgnient of Vice-Chancellor Kindersley in the case of Taughan v. Vanderstegen, 2 Drewry, 165, and more particularly the observations of the Vice-Chancellor, at page 183 ; and the cases in the last note. (6) The state of the anthorities is concisely stated in "Lewin on Trusts," 5th ed. p. 550, in the following words : — "Lord Macclesfield, Lord Talbot, " Lord Loughborough, Sir 'William Grant, and Lord Chancellor Brady, " held that the wife or her representative could claim nothing. On the " other hand, in the judgment of Sir T. Sewell, Lord Camden, Lord King, " Lord Hardwicke, Lord Eldon, Sir J. Leach, Sir J. Stuart, Lord St. " Leonards, and Smith, M.E., in Ireland, the husband's estate is liable to "an account for one year." Mr. Lewin adds, "The better opinion, ' ' independently of authority, is thought to be that the wife can recover " nothing from the husband's estate." (c) 2 Clark & Finnelly, 634. 240 LECTURE vn. been thought a fair point for contest, whether a married woman could, unless in exercise of a power expressly reserved for that purpose, dispose of her separate estate by a testamentary instrument. But upon priuciple, the moment the equity courts had determined to treat the married woman as a feme sole in respeet to property given to her separate use, the right of testamentary alienation followed as of course. One of the earliest cases respecting the testa- mentary power of married women is that of Gorges v. Chancie, which I have previously mentioned {a). It was there held that a feme covert, separated from her husband, might dispose by will of the savings of her separate allowance. It is difficult to suppose that in this case any express power was reserved, and, if not, it is conclusive in favour of the general principle. But, however this may be, in Fettiplace v. Gorges (b), it was expressly determined by Lord Thiu'low that a gift to a married woman for her separate use simply, carried with it as an incident a right of testamentary alienation, and the question has ever since been treated as clearly settled. It is equally undoubted that this right, of testa- mentary alienation extends to savings of income. The old case in TothOl shows this ; and, in that of Gore v. Knight (c), the case of a power, the principle is thus figuratively expressed: "As she had a power over " the principal, she consequently had it over the " produce of it, for the sprout is to savour of the (a) p. 221, supra. See, too, 'Withain v. Waterhouse, Tothill, 91. 8 EcL. 139. LECTURE VII. 243 Sir John Leaeli, I believe, first distinctly decided that this was the true view of the question, in the case of Proudley v. Fielder (a). In that case it had been stipulated by marriage articles that certain moneys in the funds, the property of the intended ■wife, should be for her sole and separate use to all intents and purposes, as if she were sole and unmarried. She died intestate, leaving her husband surviving. The next of kin claimed the property against the husband ; but Sir John Leach held the latter entitled. His judgment was as follows : "These moneys were " to be for the sole and separate use of Mrs. Leader, " as if she were sole and unmarried. This expression " has no reference to the devolution of the property " after her death. She is to retain the same absolute " enjoyment of the moneys, and is to have the same " power of disposition over them, as if she were sole ' ' and unmarried ; but there is not one word here to " vest the property after her death in her next of kin, " or to defeat the right which her surviving husband " is entitled to acquire as administrator." You observe that Sir John Leach speaks of the hus- band being entitled as administrator. Whether, in order to clothe his right with a legal title, it is neces- sary for the, husband to take out administration or not, depends merely upon the nature of the property aifected by the separate use. To ascertain what the husband's rights are, assume merely that the separate use, which drops off at the (a) 2 Mylne & Keen, 57. R 2 244 LECTUEE vn. very instant of death, is out of the way. Is the wife, at the moment of death, entitled to chattels personal, passing by manual delivery, such as furniture or cash ? Then as the husband might but for the separate use have taken possession of them, so at the very moment of death he takes them in his marital right simply, and no administration is needed (a). If, on the other hand, the property be of such a nature that the husband, in the absence of any sepa- rate use, could have claimed only as administrator, as is the case in respect to the wife's choses in action, such as a sum of money secured to the wife by mort- gage executed to her before marriage, then he must equally, after the separate use has dropped off, clothe his title with an administration. 5. — In the observations previously made, no distinc- tion has been taken between personal and real estate ; and if one might, without presumption, hazard a pre- diction, it would be that ere long separate estate in freeholds of inheritance wiU be placed on the same footing as that in personal estate (6). It cannot, however, be said that this has yet been distinctly done. The nearest approaches yet made in the direction of assimilation, together with what yet remains to be accomplished, shall be briefly pointed out. First, the case of Baggett v. Meux, decided by L. J. (a) See Molony ». Kennedy, 10 Simons, 254 ; Bird v. Peagrum, 13 Common Bencli R. 639. (b) See note at p. 247, giving the history of the subsequent decisions verifying this prediction. ■ LECTURE VII. 245 (then V. C.) Knight Bruce, below (a), and by Lord Lyndhurst on appeal (b), decides that both the separate use and the restraint on anticipation may be annexed to a gift of real estate in fee to a married woman ; and that a court of equity will give effect, both to the sepa- rate use and the restraint, during the coverture. Next, it is clear that where a married woman is entitled to an estate for her own hfe, in real property, to her separate use, she may contract to sell, or charge, or encumber her whole life estate (c). And it may be taken to be settled, that, at least so far as respects her equitable interest, a conveyance by deed acknowledged is not necessary. Where the legal estate in the land is in the wife, upon principle a deed acknowledged would seem requisite to bind the legal estate, though in a case in Ireland (d) the Master of the Rolls there appears to have thought even this unnecessary. Lastly, though upon the principles laid down in Baggett v. Meux the wife ought to possess the same power of ahenation over real estate held to her separate use simply as over personalty, the question whether she can, as respects freeholds of inheritance settled to her separate use, bind them either by deed not acknow- ledged, or by testamentary instrument, remains yet to be determined. In the Irish case just before referred to, the Master of the EoUs for Ireland seems to have considered that (a) 1 CoUyer, 138. (6) 1 PHllips, 627. (c) Stead o. Nelson, 2 Beavan, 245 ; and Wainwright v. Hardisty, 2 BeaTan, 363. (d) Newoomen v. Hassard, 4 Irish Ch. Kep. 274. 246 LECTUEE vn. freehold interests of the wife extending beyond her own life, could be bound only by deed acknowledged. The origninal doubts upon the subject are due to Lord Hardwicke's views, as expressed in Churchill v. Dibben (a), and to an anonymous case referred to in Peacock v. Monk {b) ; and probably were the result in the first instance of the notion either that the heir was an object of special favour in the eye of the law, or else that, not being a party to the instrument creating the separate use, he could not be bound. As respects the last suggestion, the same principles which bind the husband in the case of personal estate without his con- sent, ought equally to bind the heir in the case of a real estate (c). It cannot, however, be denied that these doubts have acquired considerable weight. In the late case of Harris v. Matt (d), they were considered by the present Master of the RoUs sufficient to deter him from decreeing a specific performance. In that case real estate had been devised to a married woman, to and for her own sole and separate use and benefit. She and her husband contracted to sell ; and before com- pletion she died, having devised to her husband ; and the Master of the EoUs thought he could not properly compel the purchaser to take the title in the absence of the heir. If one were to reason from the past history alone of the separate estate, the ultimate establishment of a (a) 2 Lord Kenyon's Keport^ part ii. p. Si, and 9 Simons, p. 451. (6) 2 Vesey Sen., 192. (c) See pp. 226, 227, supra. (d) 14 Beavan, 169. LECTUHE vn. 247 power in the married woman to bind in equity, either by insti'ument not acknowledged or by her will, her separate estate in fee simple iaterests would seem a probable event ; and it is to be hoped that the general symmetry of this beneficial creation of equity will not be marred by the anomaly which would be presented by the absence of such a power. Meanwhile we must wait patiently, untU occasion shall arise for solving the doubts which unfortunately impair, for the present, the completeness of that system, a general outline of which I have this evening endea- voured to present to you (a). (a) The doubts referred to may be considered as having been finally solved, and the general power of the married woman to bind her separate estate, established by the decision of Lord "Westbuiy, in Taylor v. Meads, 5 New Rep. 348 ; 34 Law Journal (BT.S.) Chano. 203 ; i De Gex, Jones 6 Smith, 497. The history of the intermediate decisions and dicta was as follows :— In June, 1861, in the case of Adams v. Gamble, 12 Irish Chan- cery Reports, 102, it was held by Lord Justice Blackburn and Mr. Baron Hughes (Lord Chancellor Maziere Brady dissenting and adhering to his original decision, reported 11 Irish Chancery Reports, 269) that a de- scendible freehold settled to the separate use of a married woman might be disposed of by her as if she were a feme sole. In May, 1863, in the case of Lechmere v. Brotheridge, 32 Beavan, 353, Lord RomUly, M.R., agreeing with the Irish dissentient judge, ruled that the equitable estate in fee simple of a married woman, held for her separate use, can be dis- posed of only by deed acknowledged. The authorities and dicta will be found elaborately reviewed in the judgments of the Irish Judges and of the Master of the Rolls. In 1864, in the case of Hoare v. Osborne, 33 Law Journal (N.S.), Chancery, 686 ; see page 591, Kindersley, V.-C. (ad- hering to his view expressed at i Drewry, 38) treated it as clear, that " the fee simple of real estate cannot be settled to the separate use of a. " married woman so that by her will she may dispose of it as if she were " a, feme sole.'' On the other hand, about two months later. Lord RomiUy, in Taylor v. Meads, 4 New Rep. 203, intimated that his decision in Lechmere n. Brotheridge must be understood as applying only to the power of disposition of the married woman over her fee-simple property by 248 LECTURE vn. act inter vivos / and, it being (accoiding to the views of Lord Romilly, upon another point) unnecessary so to do, his lordship declined to ex- press any opinion upon the question whether a married woman had or had not, as incident to her separate estate in fee simple, a. general power of testamentary disposition, saying that the point was one of consider- able difficulty. On appeal. Lord Westbury differed from Lord Komilly upon the point which had rendered unnecessary any decision as to the generaJ power of the married woman, and, in a considered judgment, held that where real estate is vested in trustees upon trust for the separate use of a married woman (without restraint or alienation) she has, as in- cident to her separate estate, and without any express power being conferred on her, a complete right of alienation, either by instrument inter vivos, not acknowledged under the Fines and Recoveries Act, or by wiU, and that there is no distinction in this respect between an equitable fee and any other property. LECTURE VIII. I APPBOACH the subject of "Account, as an instance of the concurrent jurisdiction in equity," with very- different feelings from those with which I opened my last lecture ; for under the head of Account we find ranged some of the most embarrassing questions in reference to equity jurisdiction — questions, too, which we are obliged to solve as we best may by reference to authoritative decision rather than to principle (a). Bear in mind, that I am now considering not account generally, but account as an instance of concurrent jurisdiction. " Account," in some shape, enters more or less largely into almost everyhead of equity juris- diction; whether exclusive or concurrent. Thus, as respects the exclusive jurisdiction : in matters of trust, trustees' accounts are taken; in matters of adminis- tration, the taking of accounts forms the most impor- tant part of the duty of the equity court ; and in suits for foreclosure or redemption, accounts of the amount of mortgage debt due, including, when the mortgagee has taken possession, accounts of the rents and profits received by him, are an essential preliminary to the (a) The Judicature Act, 1873, will, as from the time of its coming into operation, render unnecessary the solution of these questions. See note at the conclusion of this lecture. 250 LECTURE Vm. relief ultimately granted. So, in reference to the con- current jurisdiction, there is hardly any head of equity in which it may not occasionally be necessary to take accounts. But my concern this evening is with that portion of the concurrent jurisdiction of the court which rests upon " account " simply. In my brief general review of the " concurrent juris- diction," while mentioning and explaining generally the nature of the various heads of equity falling within that division, I reserved " account " for consideration in this lecture. There was more in that reservation than might have been suspected. In postponing " account," I postponed that head of equity in which, more than in any other, we seek in vain for a well- defined boundary between the concurrent and the auxiliary jm'isdiction. Consider generally how the matter stands in refer- ence to definition of jurisdiction under the three great divisions : viz., the exclusive, the concurrent, and the auxiliary. There is ordinarilj'^ not much difficulty in determining whether a particular case is one falling within a head of exclusive jurisdiction. Trust, mort- gage, administration of estates of testators and intes- tates, are heads of equity whose features are not easily mistaken. So the particular heads of concurrent jurisdiction explained in niy fifth lecture, viz.. Fraud, Accident, Mistake, Partnership, Specific Performance, Dower, and Partition, are definable with tolerable accuracy. As respects the third division, the auxiliary, that, if LECTURE vin. 251 you recollect, was in my sixth lecture subdivided into two classes, the first that in which the operations of the court were strictly ancillary, such as discovery and perpetuation of testimony; and the second, that in which the court exercised a controlling and superintend- ing rather than an ancillary jurisdiction, as in bills of peace and biUs to establish wills. Now, the jurisdiction of the equity courts in cases of the latter class may, I think, be said to have been defined with sufficient distinctness by the description given of it ; and, as respects the former class, where the jurisdiction is merely ancillary, no attempt at definition wUl be requisite. For, if a case be one neither calling for the auxiliary jurisdiction of the court in the superintending or controlling sense, nor falling within any head of exclusive or concwrreni juris- diction, then necessarily the general remedy hes at law only, and the interference of equity can be invoked merely as that of a handmaid. Summing up, then — • 1. We have defined the exclusive jurisdiction. 2. "We have defined the concurrent jurisdiction, except account. 3. We have defined the latter class of auxiliary juris- diction, viz., the controlling or superintending ; and the former class, viz., the ancillary, if our definition be otherwise completed, needs none. Consequently, if we can define the hmits of the equitable jurisdiction in matters of " account," our task will have been substantially completed- But some of you may ask. Of what practical im- 252 LECTURE VIII. portance is the completion of this task? Assuming the existence of a right to sue at law, what matters it to the injured party whether he have or not a cumu- lative remedy in the equity com-t ? My answer is, it matters in two ways — 1. In reference to discovery. 2. In so far as the head " account " is concerned, in reference to the machinery for taking accounts. And, first, in reference to discovery. Previously to the existence of the powers of discovery recently con- ferred on the common law tribunals, it was of the utmost importance where an injured party required a discovery from his opponent that he should, if possible, bring his case within some head of equity, so that he might sue in Chancery rather than at law ; for, if his remedy were at law only, he was stiU obliged to appeal to the ancillary jurisdiction of the equity court, and file his biU for discovery ; and this, as I pointed out in my sixth lecture, he could do only at his own ex- pense (a). Again, the -answer to the bill of discovery was in the common law court viewed strictly and technically as an admission ; and, therefore, if the party seeking dis- covery required to use any portion of his opponent's answer in support of his own case, or in disproof of his opponent's, he was compelled to put the whole in evidence. He was not allowed to use the answer as an admission of any, fact, however simple and discon- nected from the other statements in it, without making the whole answer evidence. The party answering was (a) p. 182, supra. LECTURE VIII. 253 thus, so to speak, enabled to give evidence in his own favour. In the equity tribunals, on the other hand, in the case of a bill for relief as well as discovery, the more rational system prevailed, and still pre- vails, of allowing the plaintiff to read any selected portions of the answer as admissions, provided only nothing was or is excluded fairly quahfying or bearing upon the particular portions of the answer read (a). Whether then we consider the terms in reference to costs upon which alone discovery was obtainable in aid of an action or defence at law, or those upon which the discovery itself might be used after it had been ob- tained, the advantage of a resort to the concurrent instead of to the auxiliary jurisdiction of the court equally appears ; and I may observe that the practice under the new jurisdiction, enabling courts of law to compel discovery, while equaKziag in other respects the advantages of suing at law and in equity, still leaves untouched the rule of evidence just commented (a) Singularly enough, until the year 1841 the rule in equity, in re- ference to reading the answer to a cross bill for discovery only, was the same as at law, i.e., the whole must be read if any part was. (See Lady Ormond -o. Hutchinson, 13 Vesey, 47 ; and 16 Tesey, 94.) However, by the 42nd Order of the 26th August, 1841 (now Consol. Order xix. rule 6, the bracketed words being added), answers to bills of discovery were put on the same footing in equity as those to bills for relief. The order is in these words : — " Where a defendant in equity files a cross bill ' ' for discovery only against the plaintiff iu aquity [or exhibits interroga- ' ' toriesf or his examination], the answer to such cross bill [or interrogatories] " may be read and used by the party filing such cross bill [or exhibiting ' ' such interrogatories] in the same manner and under the same restrictions " as the answer to a bill praying relief may be read and used," 254 LECTURE vni. on. It is, I believe, clear that at law, if you read any part of an opponent's affidavit in answer to interro- gatories .filed under the new practice, you must read the whole (a). But, secondly, I intimated that the definition of the limits of the concurrent equitable jurisdiction in mat- ters of account was of practical importance, in conse- quence of the difference existing at law and in equity as respects the " machinery for taking accounts.'" The state of the case on this point is briefly as follows : — In equity, accounts are taken by the court itself or by its judicial officers. At law, as you will presently learn from the short outhne of legal remedies which I am about to attempt, actions involving matters of ac- count commonly result in arbitrations, and . the accounts are thus commonly taken by an arbitrator ; that is to say, a judge selected by the parties litigant, who have at their own expense to provide, so to speak, their judge's salary and a court for him to sit in. Having thus pointed out the practical importance of defining the true limits of the equity jurisdiction in " account," I propose, as a preliminary to the more immediate task of definition, giving a short outline of the general history of the remedies afforded at law in matters of account. (a) The Judicature Act, 1873, enacts by section 72, that " Nothing in ' ' the Act or in the schedule thereto, or in the rules of the Court to be made " by virtue thereof, shall [with an exception not material for the pur- " poses of the observation about to be made] affect the rules of evidence." The possibility of conflict and difference of practice, as respects those rules, appears to have been overlooked. LECTUEE vm. 255 At common law a writ of " account " lay against two classes of persons, viz. : — 1. Against those standing in a situation (not amounting exactly to trusteeship, but) of a quasi fiduciary kind recognised by law, as bailiffs, re- ceivers, or guardians in socage. 2. By merchant against merchant. In this action there were three stages. The first, that in which it was decided whether the defendant should account or not ; and if decided in the afiirma- tive, the judgment was, that the defendant do account qtiod computet: this stage answered to the original hearing in equity. The second stage at law was the actual taking of the account, which was there done before auditors appointed by the court : this corre- sponded to the taking of the account in the Masters' Office, or, as under the new equity practice, by the chief clerk. The third stage at law was the judg- ment for the amoim^t found due, analogous to the order on further directions or further consideration (a). But though the analogy between the two procedures was so close, the jurisdiction at law by action of account languished and ultimately feU into desuetude, while- that in equity by bill flourished and became firmly rooted. These very different results may be ascribed to two causes : namely, first, the limited applicability of the action, and its consequent absorption, if I may be allowed the expression, into the arbitration system ; (a) See pp. 98, 99, eupra. 256 LECTUEE VIII. and secondly, the imperfect powers of compelling discovery possessed by the common law courts. And first, as respects the limited range of the action of account. "We have already seen that either a quasi fiduciary relation between the parties, or that of merchant towards merchant, was necessary to found the action. Flowing from this notion of the necessity of a fiduciary relation, we find that at common law the action lay neither in favour of the personal representatives of the person claiming the account, nor against the personal representatives of the accounting party. The 13th Edward I., cap. 23, however, remedied the former of these defects, and the 4th Anne, cap. 16, s. 27, the latter : which last enactment also gave an action of account to one joint-tenant or tenant in common against a co-tenant who should receive more than his own share of the rents and profits (a). But it was then too late to iafuse any substantial vigour into the declining action. It had already been supplanted at law by a rival which has since attained vast growth — I mean, " arbitration." The practice of reference to arbitration appears to have formed part of the common law system from a very early date. If you tiun to EoUe's Abridgment, under the head of " Arbitrement," a very cursory in- spection will satisfy you on this point. You wiU find there and in the Year Books numerous questions discussed in reference to awards during the reigns of (a) See note {a), p. 162, supra. LECTURE vni. 257 the 3rd and 4th Edwards, and of the intermediate Henrys. Some of them exhibit in a somewhat quaint form the workings of an abeady highly technical system. Thus it was considered that an award, to be good, must possess a certain quaUty of mutuality, and that the act awarded to be done must appear to be for the satisfaction of one party and in discharge of the other. Hence, in a case of the 9th Edward IV. ia the Year Book, Choke J. says by way of illustration, with some apparent want of gallantry : " If a man and a " woman submit to arbitration, and the arbitrator do " award that they shall intermarry, this shall be " intended to be no advantage, &c." But perhaps he had present to his mind an imaginary case of an action for breach of promise by the lady, in which case his respect for the sex would be saved whole. But, further, and this is more to our immediate purpose, the Year Books disclose symptoms of in- cipient encroachment on the action of account by arbitration at so early a date as the reign of Henry V. Thus, in RoUe at Arbitrement R. we have : " Un " action d'accompt poet estre submit al agard et " I'arbitrators poient faire un agard de ceo, car ceo " est uncerten " (a). Passing on at a stride some three hundred years, there can be little doubt that one of the most impor- tant branches (if not the most important branch) of arbitration business at the early part of the eighteenth century was the adjustment of accounts. This may (a) 2 Henry T. 2. 258 LECTURE vni. be collected from the well-known Act of William the Third's reign, which stills forms the foundation of the arbitration system (a). That Act, after a short preamble pointing out the advantages of references to arbitration by rule of court, continues thus : " Now for promoting trade and ren- " dering the awards of arbitrators the more effectual in " all cases for the final determination of controversies " referred to them by merchants and traders or others " concerning matters of account or trade, or other " matters, &c. ;" and then the Act proceeds with its enactments, which it is not material for me to notice. My concern is with the preamble, the inference from which is, I think, pretty strong, that at the date of the Act arbitration had begun to take the place of the action of account ; and when we consider that the latter action with its procedure before auditors was limited in its operation, while " arbitration " was available wherever an ordinary action at law lay, it seems to be a natural result that the procedure of larger application should gradually become more and more understood, and should supersede that of more limited use. In fact, the question being. Should an ordinary action at law be brought with a view to pro- ceeding by arbitration, or should an action of account be brought which would be prosecuted before auditors ? the answer was in favour of the course calculated to result in the better understood of the two procedures. Finally, the procedure before the auditors was subject (a) 9&10Wm. III. cap. ]5. LECTURE VIII. 259 to the special disadvantage that a vast number of separate issues respecting the payment or receipt of an J' particular "items" of account might be raised hj either party, who might claim as of right to have them determiaed by a jury ; a course which, when pursued, must necessarily have led to great expense and delay ; and this circumstance would naturally cause a preference to be given to arbitration (a). But, secondly, we may regard as one of the causes of the decline of the action of account the imperfect powers of compelling discovery possessed by a court of law as contrasted with a court of Equity. This indeed appears to have been considered by Mr. Justice Blackstone to have been the sole cause of the decline. He says : — " But, however, it is found by experience " that the most ready and effectual way to settle these " matters of account is by bill in a court of equity, " where a discovery may be had on the defendant's " oath, without relying merely on the evidence which "the plaintiff may be able to produce" (b). This statement might be accepted as correct if we were able to show you, as we proceed further in our lectm'e, a perfect jurisdiction in equity in aU matters falling within the scope of the old action of account. But the truer view is, I think, that arbitration and equity divided between them the old common law jurisdiction in "account:" and in reference to the imperfect powers of discovery alluded to by Mr. Justice Black- (a) Lord Hardwicke, indeed, attributed to this cause the decline of the action of account ; see Ex parte Bax, 2 Vesey, Sen. 388. (J) Bl, Com. vol. iii. p. 164. s 2 260 LECTURE VIII. stone, it must be borne in mind that the imperfection was partially (a) remedied by the section of the 4th Anne, cap. 16, before referred to, which, in its efforts to revive the drooping jurisdiction, conferred on the " auditors " in the action of account power to administer an oath and examine the parties touching the matters in question. In connexion with this question of the imperfect powers of the common law courts to compel discovery, let me recommend you to look at one of the ordinary forms of reference to arbitration appended to Russell on Arbitrations, or Watson on Awards. There you find the arbitrators invested with authority to examine the parties and to call for the production of papers ; in fact to exercise those powers which give to the jurisdiction in equity its peculiar value. The common law arbitration system is, indeed, a happy instance of engrafting a scion of equitj' practice on the stock of common law jurisdiction; and much has been done by the Legislature in aid of the efforts of those engaged in the practical working of the law (6). The mfirmity of the arbitration system lies in the circumstance abeady adverted to — that the fees to the arbitrator, and frequently the expense of the place in which his sittmgs are held, fall upon the htigant (a) See Wheeler v. Home, Willes, 208, in which case an opinion is distinctly expressed that these powers of the auditors exist only when the action is brought under the Act. The results would be singularly anomalous. The auditors would have power to examine the executors of a baUiff, but not the bailiff himself. (6) See 3 & 4 Will. IV. cap. 42, ss. 39, 40, and 41 ; 17 & 18 Vict, cap. 125, ss. 3 to 17. LECTIJEE VIII. 261 parties. They pay, as I said, for tlieii' own judge, and provide their own court. And now I reach, at last, the particular object of my lectiu-e, viz., the equity jurisdiction in account. To allot nearly one-half of a lecture to mere intro- duction seems out of due proportion ; but my task is to convey accurate elementary knowledge, and this cannot be done without exhibiting side by side the workings of those two great systems, laiv and equity, which together constitute our jurisprudence. Well, then, what jurisdiction has equity iu matters of "account?" that is to say, — neglecting aU those heads of exclusive or concurrent jurisdiction where aceoimt is an adjunct more or less frequent, in what cases may a bill in equity be filed merely to obtain an account (a) ? This brings me at once to the consideration of a ground or supposed ground of equity jmisdiction frequently referred to both in the Reports and by the text writers. The most concise statement of the principle is that of Lord Nottingham in the case of Parker v. Dee (6), frequently referred to, and adopted verbatim by Mr. Ballow in the treatise on equity commonly quoted as "Fonblanque on Equity." In that (a) There is a remarkable order of Lord Ellesmere, 11th October, 1614, which shows that at that date the Chancery jurisdiction in "account" was discountenanced upon the very ground to which Sir William Black- stone attributes the growth of the jurisdiction, viz., the power of discorery upon oath. It is as follows : — "Marchants' accompts and such like are ' ' not to be examined in the Chancery, for none is to accompt upon oath "but to the king onely. Yet frawd and covyn is to be examined and " punished." — Sanders' Orders in Chancery, vol. i. p. 86. (l) 1 Chancery Cases, 201. 262 LECTURE VIII. case, the defendant's counsel urging that the suit in equity ought to be dismissed, because the plaintiff had obtained a discovery and might go on at law, his lordship said : — " As for dismission to law because the " plaintiff hath discovery here, when this comi; can " determine the matter, that shaU not be a handmaid to " other coui'ts, nor beget a suit to be ended elsewhere." It is obvious that if the principle here laid down had been carried out to the full, the ancillary jurisdic- tion of the court could never have existed. Every plaintiff requiring discovery would have said, " I am " obliged to come for discovery; give me relief also;" and the court must have answered, " We wiU do so." The equity jurisdiction would then practically have been unbounded, for it is hard to suppose a case in which some facts requiring proof by the plaintiff in equity would not be within the knowledge of the defendant, and the extent to which discovery was actually needed by the plaintiff could hardly have been brought to any accurate test. The principle thus largely stated would have apphed equally to an action of assumpsit for not accepting goods, as to a case of intricate and complicated accounts. It may seem needless to say that no piinciple capable of such general application exists ; yet even so recently as the time of Sir Thomas Plumer we find that learned judge adverting to the supposed principle in language almost as general as that of Lord Nottingham. Thus, in the case of Ryle v. Haggle (a) his Honour says : " When it is admitted that a party comes here pro- (a) 1 Jacob & Walker, 234, see 237. LECTURE VIII. 263 " perly for the discovery, the court is never disposed ' ' to occasion a multiplicity of suits by making him go " to a court of law for the relief." The rational course, if I might without presumption express an opinion, would, as it seems to me, have been for the equity eom-t to have assumed concurrent jurisdiction in all those cases where a plaintiif came alleging his need of discovery, and where, having regard to the nature of the case, trial by an equity judge afforded a convenient mode of determination ; and to have limited itself to the of&ce of handmaid whenever trial by jury and vivd voce examination in open court seemed desirable. No such general intelligible rule of jurisdiction can, however, be traced. The nearest approach ever made to any general statement has been, that " in most " cases of fraud, accident, mistake, and account, where " discovery was needed, the court would not turn the " plaintiff in equity back to law, but would give relief " as well as discovery ; " and as Mr. Fonblanque, in one of his notes (a) to the " Treatise on Equity," has stated his inability to strike out the distinguishing principle upon which courts of equity have proceeded in assuming or declining entire jurisdiction in cases where discovery was needed, I may well be excused the attempt. Relinquishing, then, all endeavour to define by means of general principle the cases in which equity assumes jurisdiction in matters of account, I will (a) Book' VI. oh. iii. s. 6, note r. 264 LECTURE Tin. attempt to classify the results of the actual decisions on this head. They appear to be as follows : — 1.— Equity will assume jurisdiction in favour of a principal against his agent, though not in favour of the agent against the principal. 2. — Equity wiU assume jurisdiction where there are mutual accounts between the plaintiff and defendant. 3. — It wiU do so where there are circumstances of special complication. First then — A bill for an account wiU lie in equity by a principal against his agent. This proposition was first distinctly laid down by Sir John Leach, to whose short, terse judgments we owe many bold enunciations of principle, of which not a few have held their ground. I refer now to the case of Mac- kenzie V. Johnston (a). In that case the plaintiff had agreed with Johnston and Meaburn, owners of a vessel, to ship earthenware to Bombay, to be sold there on their account, and the shipment had been made. The bill was against Johnston and Meaburn for an account: they demurred. The Vice-Chancellor's judgment is as follows : — " The defendants here were agents for " the sale of the property of the plaintiff, and wherever ' ' such a relation exists a hill will lie for an account ; " the plaintiff can only learn from the discovery of the " defendants how they have acted in the execution of (a) i Maddock, 373. So a suit for an account will lie as of course ty a landowner against the agent and manager of his estates, without any allegation of fraud or special circumstances ; Makepeace v. Rogers, i Do Gsx, Jones & Smith, 6i9. LECTURE vm. 265 " their agencj^ and it would be most unreasonable " that he should pay them for that discovery if it " turned out they had abused his confidence ; yet " such must be the case, if a bill for relief will not " he." In this pithy judgment we find, you, will observe, not merely the broad enunciation of the rule, but also dis- tinct indications of the gromads on which it stands. The facts are, in general, exclusively within the know- ledge of the agent ; the principal therefore usually re- quires discovery, and if a bill for rehef did not he, he could obtain discovery only at his own expense. You should note further the single word " confidence," re- ferring to the fiduciary relation between the parties, which forms a distinct ground for supporting the juris- diction in equity. Sir John Leach's proposition must, I consider, be viewed as sound law in aU its breadth (a). Some difficulty, no doubt, occurs occasionally in determining whether the particular relation of prin- cipal and agent does exist between two parties. One of the best illustrations of this will be found in the conflicting opinions which long obscured the relation between banker and customer, and in the litigation which resulted in the final settlement of the law on (a) According to the later decisions this is not so. The fiduciary rela- tion is as indicated in the judgment of Lord Justice Turner in Padwick v. Stanley, vide extract given at p. 268, infra, the true ground of jurisdic- tion ; see Hemings v. Pugh, 4 GifFard, 456 ; Barry v. Stevens, 31 Beavan, 258, and the judgment of Lord Hatherley in Moxon v. Bright, L. R. 4 Ch. App. 292, where his lordship ruled that the mere existence of the relation of principal and agent was not sufficient to sustain a bill by the former for an account unless the agent held a fiduciarj' position. 266 LECTUBE VIII. that point; and, as the general importance of the question makes it doubly interesting, I wiU briefly review its history. There can be little doubt that the popular notion for a long time was, perhaps still is, that the banker stood towards his customer in the position of a kind of trustee or agent. People talk indeed even now of having so much money in Coutts's or at Hoare's, with a kind of belief that the banking firm holds the money as a depositary only. But, further, the true view on this point has only been settled amongst lawyers within the last twelve years. Thus, in the case of Bowles V. Orr (a), Lord Abinger, C.B., in 1835, thus expresses himself: " It appears to me that a customer " who trusts his banker with a fund, is justly entitled " to call on his banker for an account of it, and that " the banker by receiving it becomes his agent, and " accountable to him for it." You find in these words both the expression of the popular view that the banker was an agent, and also a reference to the consequence which would have fol- lowed had that view been correct, viz., that a biU for an account would have lain in equity ; however, in the case of Foley v. Hill, which cause came first before the late Vice- Chancellor of England, then before Lord Lyndhurst on appeal, and ultimately before the House of Lords, the relation between banker and customer was decided to be that of debtor and creditor merely, and a biU for an account by the latter against the former was dismissed. (a) 1 Younge & CoUyer's Exchequer R. 474. LECTURE vni. 267 In the first instance the Vice-Chancellor of England, when the case came before him, decreed an accomit. Lord Ljudhui'st, on appeal (a), dismissed the bill, using in the course of his judgment the following words: "It is quite clear that a banker is not to be " considered a trustee for his customer in the legal '■ sense of the term. Money advanced by a customer " to a banker is a loan, and constitutes a debt." Upon appeal to the House of Lords (6), Lord Lyndhurst's views were affirmed by Lord Cottenliam, Chancellor, Lord Brougham, and Lord Campbell ; and, the fidu- ciary relation failing, the bill for an account, notwith- standing an attempt to sustain it on the distinct ground of complication, apart from the fiduciary rela- tion, failed also. Next, although a principal may file a bill against his agent, it is clear that an agent cannot do so against his principal. The decisions are distinct on this point (c), and the absence of reciprocity in this respect is, having regard to the grounds for the juris- (a) See 1 Phillips, 399. (J) See 2 House of Lords Cases, 28, also Pott v. Clegg, 16 Meeson & Welsby, 321 ; .Jackson v. Ogg, Johnson, 397. (c) Allison v. Herring, 9 Simons, 683 ; Padwick v. Stanley, 9 Hare, 627. — See, also, Smith v. Leveaux, 1 Hemming & Miller, 123; s. c. on appeal, 33 Law Journal (N.S.) Chanc. 167, 2 De Gex, Jones & Smith 1, in which the general rule was treated as settled, Lord Hatherley, then V. -C. Wood, holding, howeTer (though his decision in this respect was reversed by the Lords Justices on appeal), that an exception ought to be made in a case where there had been receipts by the principal, of the particulars whereof the agent was ignorant, and on which a commission was payable to the latter. 268 LECTUEE vin. diction in favour of the principal against the agent, as indicated by Sir John Leach, consistent with sound principle. For, first, the agent has commonly all the knowledge requisite to support his rights, and requires no discovery; and, secondly, the agent reposes no special confidence in the principal. The present Lord Justice Turner, in a case which came before him when Vice- Chancellor (a), expressed himself on the question of reciprocity as follows : " It " was then said that this was a case of principal and " agent; and that if 'the principal may file a bill ' ' against his agent, the agent may file a bill against ' ' his principal ; but I cannot admit that the rights of " principal and agent are correlative. The right of " the principal rests upon the trust and confidence " reposed in the agent ; but the agent reposes no such " confidence in the principal." But whatever the grounds, the result is certain. A bill does he by principal against agent, but not by agent against principal, for an account. Secondly — Equity wiU assume jurisdiction where there are mutual accounts between the plaintiff and defendant. Perhaps I ought to have said that the better opinion seems to be to this effect ; for in reference to this, as indeed in reference to other questions arising upon the equity jurisdiction in matters of account, the authorities are mainly agreed on one point onlj', viz., the extreme difficulty of defining the jurisdiction. The nearest approach to a systematic definition of the (a) Padwick v. Stanley, 9 Hare, 627. LECTUEE vm. 269 equity jurisdiction in cases of mutual account is that contained in the judgment of Lord Justice (then Vice- Chancellor) Tui-ner, in the case of Phillips v. Phillij)H{a) . His lordship in that case, in allowing a demurrer to a bill for an account, expressed himself as follows : "I " have no doubt that this bill cannot be maintained. " I take the rule to be, that a bill of this nature will " only lie where it relates to that which is the subject " of a mutual account; and I understand a mutual " account to mean, not merely where one of two parties " has received money and paid it on account of the ' ' other, but where each of two parties has received and " paid on the other's account. I take the reason of that " distinction to be, .that, in the ease of proceedings at " law, where each of two parties has received and paid " on accoiant of the other, what would be to be recovered " would be the balance of the two accounts; and the " party plaintiff would be required to prove, not merely " that the other party had received money on his " account, but also to enter into evidence of his ovra " receipts and payments — a position of the case " which, to say the least, would be difficult to be " dealt with at law. Where one party has merely " received and paid moneys on account of the other, " it becomes a simple case. The party plaintiff has " to prove that the moneys have been received, and " the other party has to prove his payments. The " question is only as to the receipts on one side and " the payments on the other, and it is a mere question (a) 9 Have, 471. 270 LECTURE vni. " of set-off; but it is otherwise where each party has " received and paid." The rule here laid down is, I should have considered, reasonably clear and free from objection ; but his Honour Vice-Chancellor Kindersley seems on a recent occasion to have placed a different construction upon the judgment of Lord Justice Turner from that which appears to me the obvious one, and indeed to have denied altogether the efficacy of mutuality of accounts as a ground for equity interposition. I aUude to the case of Fluker v. Taylor. In his judgment in that case, the Vice-Chancellor, though not expressly men- tioning Phillips V. Phillips, evidently refers to it in the following observations (a) : " It is difficult to lay down " any fixed rule which goes to mark out the line " between those cases where an account must be taken " in equity and where it need not. An attempt has " been made to lay down such a rule by saying the " accounts must be mutual, that there must be receipts " and payments on both sides. ^ ^ ^ ^ ^ " But it really appears to me that it would be dangerous " to lay down the rule in any such terms. For, take " the common case of any gentleman of fortime keeping " a mere money account, not a business account, with " his banker: he pays money to the banker and the " banlter pays his cheques ; that is mutual receipt and " payment; tbe banker receives money from the cus- " tomer and pays cheques to the customer; and the " customer pays money into the banker's and draws (a) See 3 Drewry, 191. LECTUEE vni. 271 " money out. If the rule were as stated, such a case " would fall within it, while it is clear in such a case no " bill would lie (a). It is therefore dangerous to say the ' ' equity depends on mutual receipts and payments ; " the equity must depend in each case on the nature " of the account; it depends on this, whether the ' ' accoimt is in its own nature, not merely from the " numher of items but from its own nature, so compli- " cated that this court wiU say such an account cannot " be taken in a court of law." Notwithstanding the great weight due to any obser- vation falling from so careful a judge, it is difficult not to feel tliat the doubts here expressed by him are out- weighed by the judgment of Lord Justice Turner, and by the distinct expression of opinion on the part of Lord Eldon in the leading case of Dinwiddle v. Bailey (b), who says, in speaking of the equity jurisdiction in account, " there must be mutual demands forming " the ground;" and it may, I think, be safely laid down that whether Lord Justice Turner's definition of " mutual accounts''' ultimately prevail or not, " mutual " accounts'' will remain firmly fixed as a groimd of equity jurisdiction in account (c). Thirdly — Equity will assume jurisdiction w/iere there are circumstances of special complication. Here, again, both the decisions and dicta create a distressing uncertainty as to the nature and extent of complication requisite to found the equity jurisdiction. (o) See p. 266, supra. (l) 6 Vesey, 141. (c) See tbe observations of Lord Chelmsford in Scoft v. Corporation' of Liverpool, 3 De Gex & Jones, 359. 272 LECTURE VIII. In the leading case of O'Connor v. Spaight (a), Lord Eedesdale, in a passage of his judgment which is fre- quently quoted on this point, uses the following lan- guage : " The ground on which I think that this is a " proper case for equitj^is, that the account has become " so complicated that a court of law would be incom- " petent to examine it upon a trial at NisiPrius with " all necessary accuracy, and it could appear only from " the result of the account that the rent was not due (6). " This is a principle on which courts of equity constantly " act by taking cognisance of matters which, though " cognisable at law, are yet so involved with a complex " account that it cannot properly be taken at law ; and " until the result of the account, the justice of the case " cannot appear." Lord Redesdale's observations, if they could with safety be accepted as a correct representation of the doctrine of the court as to complication, would furnish a broad intelligible rule. In every case the question would simply be, Could the accounts be taken at Nisi Prius, or would the common law judge, either before trial under the special power conferred by the Pro- cedure Act of 1854 (c), or by moral coercion upon the {a) 1 Schoales & Lefroy, 305. (6) The question upon wMcli the fate of the litigation between the plaintiff and defendant hinged was, whether any rent was in fact due. (c) 17 & 18 Vict. cap. 125, a. 3 — See Croskey v. European, &c., Shipping Company, 1 Johnson & Hemming, 108, in which (while holding, in accordance with the well-established doctrines' of the Court, that the new Common Law jurisdiction had not impaired the jurisdiction of the Court of Chancery) Lord Hatherley, then V.-C. Wood, intimated that the mere circumstances of a plaintiff at law giving notice of his intention to move for a referenoe to arbitration amounted to an admission that the Court of Equity was the proper jurisdiction. LECTURE vin. 273 cause coming on at Nisi Prius, compel a reference to arbitration ? Nor are Lord Eedesdale's views unsupported by other dicta. In the case of the Taff Vale Railway Company v. Nixon (a) — in which, as I shall presently endeavour to show, the special facts were such as clearly to make the case a fitter one for equity than law — ^you wiU find, first, Lord Cottenham referring with approbation to the rule as laid down by Lord Redesdale, and then Loi'd Campbell expressing himself as follows : — " I do not proceed merely upon the ground which " is stated in the case as having been taken by his " Honour the Vice-Chancellor ; I proceed upon this " ground, that here is a complicated account that " could not hj possibility be taken by a jury. The " facts of the case, as stated by my noble and learned " friend on the woolsack, very clearly show that it " would be a mere mockery to bring such an action " before a jury. What would be done if such an action " were brought at Nisi Prius? I know that within " five minutes from the opening of the case by the " leading counsel for the plaintifi's, the judge would " say, 'If we sit here for a fortnight we cannot try " this sort of case ; and, therefore, it is indispensably " necessary for the sake of justice — not to save us from " the trouble of trying the case, which we are perfectly " willing to take, but for the sake of justice — that ' ' there should be a reference to an arbitrator who will " take accounts between the parties.' " (a) 1 House of Lords Cases, 111. 274 LECTUEE Vin. Loi-d Brougham again, following Lord Campbell, spoke thus : — " My Lords, I rise only to mention a " circumstance which my noble and learned friend " reminds me of, that it was formerly so much a " matter of course, when cases of this sort came " before us at Nisi Prius upon the northern circuit, to " refer them to arbitration, that we invented a phrase " for it at consultation, the meaning of which was, that " it could not be tried, and that the leading counsel " for the plaintiff would what is commonly called ' open " a reference.' Now, the course ought to be a Ull in " equity ; that is clearly the best remedy." But notwithstanding these strong observations, it would be dangerous to lay down that the mere cir- cumstance that the case is clearly one for an arbitra- tion would be sufficient to found the jurisdiction in equity. It is easy to conceive a case in which, owing not to any special complication, but merely to the large amount claimed and the great number of items — Lord Campbell's observations point to a case of this sort — a reference to arbitration would be a matter of course ; not in consequence of the inability of a jury to take the account, but because of the waste of time on the part of judge, counsel, and vsitnesses, wholly disproportioned to any resulting advantage. Now it certainly cannot be said that the jurisdiction of the Equitjr Court to entertain an account in cases of this sort, is estabUshed. On the contrarj"-, in the case of the South'Eastern Railway Company v. Martin (a), in a) 2 Phillips, 758 (where the plaintiffs are incorrectly called the North- Eaatern Eailway Company), and 1 Hall & Twells, 69. LKCTUEE VIII. 275 which an action had been brought by surveyors and engineers against a railway company to recover the balance of an account containing some four hundred items of charge and discharge, Lord Cottenham him- self, while refusing to stay the action by injunction, made the foUoT\dng remarks upon the Taff Vale Rail- way Case. He said : " The observations of two noble " Lords in the House of Lords, in the case of the Taff " Vale Railway Company v. Nixon " (his Lordship here evidently refers to Lord Campbell and Lord Brougham, forgetting, apparently, his own general approval of Lord Redesdale's views), "have been referred to as " expressing opinions, that accounts ought to be " decreed in all cases in which references would be " pressed at Nisi Prius ; I apprehend that those ob- " servations were not intended to intimate any such " rule or opinion, but were intended only to exemplify " the great difficulty in dealing with such cases at " law." Further, in the case of Phillips v. Phillips, already referred to. Lord Justice (then Vice- Chancellor) Turner expresses himself thus (a) : " It is true that a case " of mere receipts and payments may become so com- " phcated, as Lord Cottenham said in the case of the ' ' Taff Vale Railway Company, that the account cannot " be taken at law, and may properly become the sub- " ject of the jurisdiction of a court of equity. But " when the account is on one side only, I think a " strong case must be shown before this court wUl " exercise its jurisdiction. If the door of this court (a) 9 Hare, 473. T 2 276 LECTURE VIII. " be opened to every case in which accounts would " not be taken in an action at law, but a court of law " would send them to a reference, I do not know " where there would remain any protection against " suits in equity to parties between whom any account " existed." On the whole, while regretting that the broad intelli- gible rule laid down by Lord Redesdale should not be clearly established, it is impossible to treat it as having attained the force of law. What, then, to recur to our original proposition, is the nature and extent of complication requisite to found the equity jurisdiction ? The question can only be answered vaguely and imperfectly by instances. There can, I consider, be no doubt that where there are complicated questions of account between A, B, and C, three parties having distinct interests — where, in fact, the case approaches what might be called, in the language of a late nautical novelist, a triangular duel — a court of equity will interfere. The Taff Vale Railway Case, before alluded to as having elicited from Lord Cottenham, Lord Campbell, and Lord Brougham a general approbation of Lord Eedesdale's views, was one of this class, and needed no such broad general principle as that of Lord Eedesdale to warrant the decision of the House. There Nixon, a railway con- tractor, contracted with the Tajf Vale Railway Company to execute certain works. Subsequently he entered into an agreement with Storm, another contractor, to supply him with funds to enable him to fulfil his con- tract. Later still, Nixon and Storm jointly entered LECTURE vin. 277 into a new contract with the Company, and then Storm became bankrupt. Various complications arose in reference to the respective rights of Nixon and of Storm's assignees ; and it was held that under these circumstances a bUl would lie by Nixon against the Railway Company. The case of the South-Eastern Railway Company v. Brogden (a), the facts of which are too comphcated to admit of my now laying them before you, will show 3'ou what particular circumstances were, and what were not, considered bj' Lord Truro sufficient to warrant the interposition of equity in matters of account ; and his lordship's judgment in that case is particularly valu- able, as pointing out and dweUing upon the import- ance of the distinction between a court of equity assuming a jurisdiction in matters of accoimt, and its interfering by injunction to withdraw a matter in which an action has been commenced from the legal juris- diction. You wUl do well to classify carefully, with reference to this distinction, the authorities which I have this evening mentioned. Thus, in Mackenzie v. Johnston, Foley v. Hill, Allison v. Herring, and Pad- wick V. Stanley, all referred to under the first ground of jurisdiction (b), the question simply was. Should equity give an account? So as respects Phillips v. Phillips (c), under the second head. In Fluker v. Taylor, referred to under the second head (d), and in (a) S Maon. & Gor. 8 — and see Southampton Dock Co. v. Southampton Harbour & Pier Board, L. E, 11 Eq. 254. (S) See pp. 264, 266, 268, supra. (c) p. 269, supra. (d) p. 270, supra. 278 LECTURE Till. all the cases which I mentioned under the third head, except that of the Taff Vale Railway, the assistance of the court was invoked to stay proceedings at law. There can, I think, be little doubt but that the distraction pointed out by Lord Truro will, in the course of the further development of our equity system, become a marked feature in that portion of it which relates to " account.''' The difference between afford- ing to a suitor, who prefers coming into equity, the beneficial aid of the court, and interfering to withdraw a matter from law merely because the litigation there will probably result in a reference to arbitration, is immense. Nor should it be forgotten that since Lord Eedesdale's observations in O'Connor v. Spaight were uttered, the powers and facilities of dealing with accounts at common law, by way of arbitration, have greatly increased {a) ; and though, according to the well-known rule (b), this circumstance cannot be viewed as having in the slightest degree diminished or affected the equity jurisdiction, it may well influence the judge where the question is not as to exercising jurisdiction in equity, but as to staying proceedings at law. Finally, except as regards my first head of equity jurisdiction in account, that, namely, which is grounded on the relation of principal and agent, I find myself reluctantly compelled to say, in conclusion, that my observations of this evening must be viewed as beacons pointing out shoals and quicksands rather than as landmarks guiding you to safe havens. (a) See p. 260, note (J), supra. (J) See p. 188, supra. LECTURE VIII. 279 It is now not quite ten years since (a), that Lord Cottenham, in the case of the South-Eastern Raihvay Company v. Martin (b), used the following words : — " The jurisdiction in matters of account is not " exercised, as it is in many other cases, to prevent " injustice which would arise from the exercise of a " purely legal right, or to enforce justice in cases in " which courts of law cannot afford it; but the juris- " diction is concurrent with that of the courts of law, " and is adopted because, in certain cases, it has better " means of ascertaining the rights of parties. It is " therefore impossible with precision to lay down rules, " or establish definitions, as to the cases in which it " may be proper for this Court to exercise this juris- " diction. The infinitely varied transactions of man- " kind would be found continually to baffle such rules, " and to escape from such definitions. It is therefore " necessary for this Court to reserve to itself a large " discretion, in the exercise of which due regard must ' ' be had, not only to the nature of the case, but to the " conduct of the parties.'' I must confess, gentlemen, that I am unable to take so favourable a view as Lord Cottenham did of the uncertainty which exists respecting the equitable juris- diction in account, an uncertainty which, to the best of my judgment, is both unnecessary and distressing. However, of one thing there is no doubt, the decisions of the last ten years have added little certainty to the (a) i.e. from 1858. (6) 2 PhiUipa, 758 ; see p. 762. The report at 1 Hall & TweUs, p. 73, varies slightly. 280 LECTURE VIII. doctrines of the Court. Our views still remain just as obscure; and in this obscurity — though cheered some- what, I may perhaps venture to hope, by the faint glimmer of this evening's lecture, I am compelled perforce to leave you (a). (a) The Judicatiire Act, 1873, by section 34 assigns to the Chancery DiTision of the High Court of Justice all causes and matters for, inter alia, " The dissolution of partnerships, or the taking of partnership or other ' ' accounts. " The effect of this provision must naturally be to attract to the Chancery Division, not only the cases now lying close to the border line which now separates the Equity and Common Law jurisdictions, but a large nnmber of cases in which a bill in Equity would certainly not lie at present. LECTURE IX. The subject of this evening's lecture is "Injunction " in cases where the Court exercises an auxiliary " jurisdiction." This title, and the circumstance that this wiU be my last opportunity of addressing you on the subject of equity, alike suggest to me the propriety of a few words of explanation upon a point which might otherwise cause embarrassment to some of you, — I mean the want of homogeneity, if I may be allowed the phrase, in the terms used to denote the diiferent heads of equity ranged under the three prin- cipal divisions of exclusive, concurrent, and auxiliary. Most of you have probably heard .of what in logic is called cross division. We may take any number of individual persons or things — let us assume the whole of mankind — and classify them, either physiologically into the Caucasian, Negro, Mongol, and other races ; or theologically, into Christians, Mahommedans, Buddh- ists, and other religionists ; or politically, into British, French, Prussians, &c. (a). So, as respects equity we may take the whole subject and divide it, either, as Mr. Smith does in his Manual of Equity, according to the nature of the relief afforded or of the function performed by the Court, into Remedial Equity, Execu- {a) See Whately's Logic. 282 LECTURE IX. tive Equity, Adjustive Equity, Protective Equity, and Auxiliary Equity, or according to the plan which we have oiu-selves followed. But whether we follow Mr. Smith's classification or our own, we find ourselves considerably embarrassed, as we proceed to the task of subdivision, bj^ the circumstance that the terms which we are obliged to use to denote our different heads of subdivision bear no relation to our general plan of classification. Thus, trust and mortgage are words referring to the nature of the contract between the parties litigant ; fraud refers to a course of conduct imputed by one party to the other; partition audi specific 'performance to the remedy afforded by the Court; discovery to certain rules of equity pleading and practice adopted for eliciting truth : and thus the very terms used in describing the heads of equity into which our main divisions have been subdivided, naturally suggest a different classification from that which we are pursuing ; in fact, a kind of cross-subdivision. Occasionally too it becomes neces- sary to use in a limited sense the term which has been selected to denote some particular head ^ equity ; as we have done in the case of "Account" falling under the concurrent, and " Discovery " falling under the auxiliary jurisdiction. Well, gentlemen, these very embarrassments and difficulties exist in regard to the use of the word " injunction" as denoting ahead of equity. At first it might seem impossible to use the word for that purpose. For what is injunction ? Merely that process of the Court of Chancery by which, where its aid is invoked. LECTURE IX. 283 it prohibits the doing of some act which is either unlawful or in the eye of the Court inequitable. It is a powerful engine of the Court, by which, in a large number of cases, it gives effect to the maxim before alluded to: "Equity acts in personam" — an engine equally available in the administration of every portion of its jurisprudence. Thus, in a case within the exclusive jurisdiction, say a case of trust, the Court will restrain the trustee by injunction from dealing im- properly with the trust fund ; and in a case within the concurrent jurisdiction, such as that of account in O'Connor v. Spaight, mentioned in my last lecture {a), the Court wUl occasionally enjoin proceedings at law. But just as in my general review of the auxiliary jurisdiction I took " discovery," which in its general acceptation includes aU discovery, however obtainable, and treated of that particular kind of discovery only which concerned the division of jurisdiction then under consideration ; so this evening I shall attempt to group together certain instances of the exercise of the process of injunction which appear to me to fall rather within the domain of the auxiliary jurisdiction of the Coiurt than any other. Now, ia considering the subject of " injunction " generally, the cases in which the courts of equity interfere may be conveniently arranged into two classes, viz. : — First, the cases in which equity interferes to restrain a person from instituting or continuing judicial pro- ceedings in some other court ; and, {a) See p. 272, supra. 284 LECTURE rx. Secondly, cases in which equity interferes to restrain- the commission of acts either unlawful or wrongful in the eye of a court of equity (a). With the first class of cases we have no immediate concern this evening (b). In one particular instance only are injunctions of that class connected with the auxiliary jurisdiction of the court, namely, where a defendant at law files a biU of discovery in equity in aid of his defence, and obtains an injunction to restrain the proceedings at law until his bill is answered. Having, regard, however, to the importance of this class of injunctions, both historically and as illustrating the principles of action of the court, some brief notice seems desirable. In cases of this- class, whenever a person by fraud, accident or otherwise, has an advantage in proceeding in a court of ordinary jurisdiction which ia the eye of a court of equity must necessarily make the ordinary court an instrument of injustice, and it is therefore against conscience that he should use the advantage, the equity court, to prevent manifest wrong, will inter- pose by restraining the party whose conscience is thus bound from using the advantage he has improperly (a) This is, in substance, the arrangement adopted by Mr. Dremry, in his work on Injunctions. (6) Upon the Judicature Act, 1873, coining into operation, this first class will cease to exist, so far as respects jurisdictions absorbed into, and becoming part of, the new High Court of Justice, it being enacted, by section 24, sub-section (5), that no cause or proceeding at any time pend- ing in the High Court, shall be restrained by injunction; and having regard to sections 89 and 90 of the Act, proceedings for an injunction to restrain upon equitable grounds the prosecution of proceedings in an inferior Court must become rare. LECTUEE IX. 285 gained (a). Eqiutj', in fact, says to the person who is proceeding contrary to equity : " Desist from your proceedings in the other court, or we will put you in prison " (b). The jurisdiction of the court in decreeing injunc- tions to stay proceedings in other courts, may be traced back to a very early date. Thus, turning to our repertorium of antiquarian knowledge, the Calendars of Proceedings in Chancery, we find various instances of the exercise of this jurisdiction. In the reign of Edward IV. there is a case of Astel v. Causton, seek- ing to restrain an action in the Common Pleas upon certain bonds (c). In the reign of Eichard III. there is a curious instance of a bill filed to restrain an action brought by a person whom the plaintiffs in equity allege to have been a villein regardant to the Manor of St. Giles Tydde, belonging to the Bishopric of Ely, and seeking an injunction, imtil certain evidences, which had been mislaid by reason of the flight of Morton Bishop of Ely beyond the realm, should be recovered {d). It could hardly be expected that the assumption by the Court of Chancery of so large a jurisdiction, would be readily acquiesced in by other courts ; and the Year-books of the time of Edward IV. afford abundant evidence of the struggle then going on (a) See Mitford's Pleading, p. 127, whence this statement is taken almost verbatim. (b) See the early case referred to at p. 74, note (6), supra. (c) Calendars of Proceedings in Chancery, toI. i. p. cviii. {d) Edyall v. Hunston, ib. p. cxiii. 286 LECTUEE IX. between the common law judges and the Chancellor (a). The struggle was revived in Henry VIII. 's reign, continued through that of Elizabeth, and only deter- mined in favour of the Court of Chancery in the time of James I., when the combatants for law and equity were respectively the great Lord Coke on one side, and Lord Chancellor EUesmere on the other (&). Since that time, the jurisdiction has never been seriously doubted ; and by a recent enactment in the Conmion Law Procedure Act of 1852 (c), the common law court itself is bound to stay proceedings on production of a writ of injunction awarded in equity {d). The technical reasoning on which the right of the Court of Equity to interfere is rested, is probably familiar to most of you. The Equity Court, it is said, (a) See the cases mentioned in Spence's Equitable Jurisdiction, vol. i. p. 674. (b) Campbell's Lives of Chancellors, vol. ii. pp. 241-245. (c) 15 & 16 Vict. cap. 76, a. 226. The material words of the section are that " in case any action, suit, or proceeding in any court of law or " equity shall be commenced, sued, or prosecuted, in disobedience of or " contrary to, any writ of injunction, rule, or order of either of the " superior courts of law or equity at Westminster .... in any other " court than that by or in which such injunction may have been issued, or ' ' rule or order made .... the said other court shall stay all further " proceedings contraiy to any such injunction, rule, or order. " In a recent case, Milburn v. The London & South- Western Kailway Company, L. R. 6 Exch. 4, the Court of Exchequer held the 226th section inapplicable where ,in injunction had been granted by the Court of Admiralty under a statutory enactment giving to that court the powers conferred on the Court of Chan- cery by the Merchant Shipping Act — a decision grounded, it is conceived, on a, literal construction of the words Superior Courts, and contrary, it would seem, to the spirit and general intent of the enactments referred to. (d) And where rio writ has actually issued, the Court of law will stay proceedings after an order for an injunction has been made by the Court of Chancery ; Cobbett v. Ludlam, 11 Exchequer R. 446. LECTURE IX. 287 interferes in no way with the privileges or prerogatives of the other court ; it merely acts on the person en- joined from suing. The other court has perfect power to proceed, though certainly, if the suitor moves a step he is guilty of contempt towards the Equity Com't, and is liable for the consequences. It may be doubted whether this argument would be tolerated for a moment in any analogous case occurring in every-day life. Suppose, to put a very weak case by way of illustration, two professors, say of law and equity, at a university, both paid by salaries and teach- ing gratuitously ; and imagine one of them advising Iris pujjils not to attend his brother professor's lecture. Could it be contended for a moment, that this con- stituted no interference with the professorial functions of the other, merely because the inducement to absence assumed the shape of advice to the pupils ? The case of the common law courts against equity was infinitely stronger; for the judges, at the period when thef struggle took place, were paid by fees from the suitor, and the interference of equity came in the shape of command, and not oi advice («). The true justification (a) The articles of impeachment against Wolsey complain both of his gi-anting injunctions after jnclgment at law, and also of his personally commanding the judges with threats to defer their judgment. The twentieth article ran thus : — " Also the same Lord Cardinall hath ex- " amined divers and many matters in the Chancery after judgement " thereof given at the Common Law, in subversion to your lawes, and ' ' made some persons restore againe to the other party condemned that, " that they had in execution, by vertue of the judgement at the Common "Law." And the twenty-sixth article thus : " Also, when matters have " been near at judgement, by proces at your Common Law, the same Lord " Cardinall hath not only given and sent injunctions to the parties, but " also sent for your judges and expresly by threats commanding them to 288 LECTUEE rx. for the interference is to be found, not in the technical " modus operandi," but in the substantially just and beneficial nature of the interference itself- It is however important that the reasoning in sup- port of the jurisdiction should be borne in miad, because the unlimited extent of the jurisdiction itself hinges thereon. The Court acts upon the person, and upon the person only : therefore, if the party accused of inequitable proceedings in some other court be within its reach, it will restrain his proceedings, whether that other court be a court of common law, or the Ecclesiastical Court (a), or the Court of Admi- ralty (&), or a Court of Scotland (c), or Ireland (d) ; and the principle obviously extends equally to pro- ceedings in any foreign court (e). But it is time that we should pass to the considera- tion of that class of injunction suits with which we are on the present occasion more immediately concerned, viz. those in which equity interferes to restrain the commission of acts either unlawful or wrongful in the eye of a court of equitj^. In cases of this class, "171- " defer the judgement, to the evident subrersion of your lawes, if the " judges would so have ceased." See the articles, Coke, 4 Inst. cap. 8. It is instructive to notice how these two things — which, according to our present notions, were, the first clearly-within his jurisdiction as Chan- cellor ; and the second, a gross excess of it — appear to have been at that day equally regarded as grievances. (a) Hill V. Turner, 1 Atkyns, 516. (5) Glascott V. Lang, 3 Mylne & Craig, 451. (c) Jones V. Geddes, 1 Phillips, 724 ; Graham v. Maxwell, 1 Macn. & Gor. 71. (d) Lord Portarlington v. Soulby, 3 Mylne & Keen, 104. (c) See Lord Brougham's observations at 3 Mylne &, Keen, 107, upon the case of Love v. Baker, 2 Freeman, 125 ; s. 0. 1 Chancery Cases, 67. LECTUHE IX. 289 junction" may be said to be the strong arm of pre- ventive justice, whether in reference to equitable or to legal rights, though our present concern is with legal rights only. In our common law system, as it stood previously to recent legislative enactment (a), preventive justice was practically unknown. A man might be on the point of committing the most flagrant legal wrong : your only com'se at law was to wait patiently and sue him for damages. It was not always so. So late as Lord Coke's time, preventive justice was a part of the common law system. That its importance was fully recognised by him appears from his observations in a passage in the second part of his Institutes, respecting the writ of " Estrepement," a common law process for preventing waste. Lord Coke says : " This was an excellent law, " for prcestat cautela quam medela, and preventing "justice excelleth punishing justice" (b). And. in the first Institute (c) we find the following enumeration of writs of a preventive character : — " And note, that there be six writs in law, that may " be maintained, quia timet, before any molestation, " distresse, or impleading ; as, 1, A man may have his " writ oi mesne (whereof Littleton here speaks) before " he be distreyned. 2. A warrantia cartce, before he be " impleaded. 3. A monstraverunt before any distresse ' ' or vexation. 4. An audita querela, before any execu- " tion sued. 5. A curia claudenda, before any default " of inclosure. 6. A ne injuste vexes, before any dis- (o) i.e., 17 & 18 Vict. cap. 125, ss. 79, 80, 81. See p. 313, post. (5) and Institute, 299. (c) 100 a. 290 LECTURE IX. " tresse or molestation. And these be called brevia " anticipantia, writs of prevention." But these writs, except that of audita querela, have long since fallen into desuetude ; and the 36th section of the Statute of Limitations {a) includes amongst the forms of real action thereby abolished the writs of mesne, of warrantia carta, and of ne injuste vexes ; so that these last have ceased to own even that slight shadowy legal existence which they formerly possessed. But while the law had become thus helpless to anticipate and prevent wrong, the germ of preventive justice lay involved in the maxim, " Equity acts in personam," ready for development as occasion might require ; and as equity interfered by injunction to prevent the com-ts of law from being made the instru- ments of injustice, so it interfered by means of the same process to supply their want of power to afford preventive justice. It is of the process of injunction, as granted by the equity courts in aid of the legal right — of injunction, I may say without much inaccuracy, as a head of auxi- liary jurisdiction (&) — that I am now about to speak. The injunction suits falling within this limited range are mainly of some one of the following classes : — 1. Patent cases. 2. Copyright cases. 3. Cases relating to Trade Marks, (a) 3 & 4 Wm. IV. cap. 27. (V) By the operation of Eolt's Act, see note at page 300, infra, the jurisdiction of the Court in the classes of cases discussed has in effect become concurrent. LECTUEE IX. 291 4. Cases of Nuisance. 5. Cases of Waste. 1 and 2. — It will be convenient to consider Patents and Copyright together. The history of Patents is intimately connected with that of the old abuse of Monopolies. Our earlier sove- reigns arrogated to themselves the right of conferring upon particular individuals the sole and exclusive right of buying, selling, or making particular articles of sale or manufacture. This right was exercised so abusively, that by the end of Elizabeth's reign a large number of useful manufactures and trades had become exclusively monopolized by persons able to command court favour. However, in the case of Monopolies (a), decided in the last year of Elizabeth's reign, the judges held that a grant of the sole making of playing-cards within the reahn, which was an ancient manufacture, was bad, as contrary to common law. But, although monopolies affecting old manufactures were thus void, the king had always the power of granting monopolies of new inventions, as the chief guardian of the common weal, for the sake of the public good (b) ; and in the twenty-first year of James I.'s reign the rights of the sovereign and of the (a) 11 Reports, 85. The facts of the case aptly illustrate the practices and mannera of the time. The grant was to Edward Darcy, a Groom of the' Privy Chamber to Queen Elizabeth ; and in justification of a privilege of importing playing-cards, also purported to be conferred, it contained a recital of the Queen's desire that her subjects should apply themselves to husbandry, and not make playing-cards ; since by making such a multitude of playing-cards, card-playing had become more frequent, and especially amongst servants, and apprentices, and poor artificers. (h) See Case of Monopolies. u 2 292 LECTURE IX. public were, by statutory enactment, placed on a foot- ing not differing very much from that existing at common law. By the statute in question (a), after declaring mono- polies to be contrary to law, it was by the sixth section declared and enacted as follows : — " Provided also, and be it declared and enacted, ' that any declaration before mentioned shall not ' extend to any letters patents and grants of privilege ■ for the term of fourteen years or under, hereafter ' to be made of the sole working or making of any ' manner of new manufactures withili this realm, to the true and first inventor and inventors of such manu- ' factures, which others, at the time of making such ' letters patents and grants, shall not use, so as also ' they be not contrary to the law, nor mischievous to ' the state, by raising prices of commodities at home, ' or hurt of trade, or generally inconvenient : the said ' fourteen years to be accounted from the date of ' the first letters patents or grant of such privilege ' hereafter to be made, but that the same shall be of ' such force as they should be if this Act had never ' been made, and of none other." This section of the Act of James, as amended and extended by subsequent enactments (&), still forms the basis of our present system. Patent right is therefore a privilege derived from the original power of the Crown as restrained by statutory enactment. (a) 21st Jac. I. cap. 3. (6) The 5 & 6 Will. IV. u. 83 ; 2 & 3 Vict. c. 67 ; 7 & 8 Vict. c. 69 ; and 15 & 16 Vict. c. 83, are the principal Acts applicable to patents. LECTUEE IX. 293 Copyright, so far as respects the origin of the species of property called by that name, has long been the crux of lawyers, indeed one might say of the edu- cated commmiity at large. Much confusion has been caused by the word being used in two senses. It in- cludes, or has been used to include, first, though somewhat inaccurately, the right of the author to publish or not, and to restrain others from publishing; and, secondly, the right after publication of republish- ing and restraining others from doing so. The first species of copyright, that existing before publication, according to the strong preponderance of authority, existed at common law. Whether the second species of copyright had any common law existence is the question about which the greatest lawyers have differed. In the great case of Donaldson v. Beckett (a), decided by the House of Lords in 1774, ten judges against one were of opinion that copyright existed at common law ; though six to five were of opinion that whatever right of action an author might have had after publi- cation, was taken away by the statute of Anne, the first Copyright Act (6) — in fact, that the author's claim was, since that statute, only under the statute. In the recent case of Jeffreys v. Boosey (c), also before the House of Lords, the question was incidentally re- opened. Of the ten judges who were called to the assistance of the House on that occasion, three (rf) expressed themselves to be of opinion that no copy- (a) 4 Burrow, 2408. (6) 8 Anne, cap. 19. (c) 4 House of Lords Cases, 815. (d) Parke, B. ; Pollock, C.B, ; audJerris, C.J.C.P. 294 LECTURE IX. right ever existed at common law, three (a), that it did exist, and four (&) declined expressiag an opinion on the point. Of the three nohle lords who moved the judgment of the House, the Lord Chancellor (Lord Cranworth) gave no opinion, while Lord Brougham and Lord St. Leonards both expressed themselves strongly of opinion that no copyright ever existed at common law. But, passing by this question, however interesting, and omitting for the moment all notice of the common law right of the author before publication, let us con- sider the position and remedies at law, irrespectively of late enactment, both of the patent right owner and of the copyright owner, when their rights are invaded. An unscrupulous competitor infringes a patent, or pirates a book. What then ? the only remedy was by an action, in which damages were recoverable ; yet the wrong-doer might be a man of straw, and the verdict therefore valueless ; or he might be perversely litigious, and prepared to renew the contest even at the expense of his purse ; or the jury on the first occasion might give such moderate damages as to make a repetition of the offence a good pecuniary speculation — still the law remained helpless. Under these circumstances, a bill in equity for an injunction afforded that protection which the law was unable to give. But as the equity court acted in aid merely of the (a) Erie, J. ; Wigttman, J. ; and Coleridge, J. (b) Crompton, J. ; Williams, J. ; Maule, J. ; and Alderson, B, LECTURE IX. 295 legal right, so in its course of action it always kept in sight the fact that its functions were really auxiliary only. The "best exposition of the principles by which equity courts were guided in this class of cases is, so far as I am aware, that contained in Lord Cottenham's judgment in Saunders v. Smith (a), a case of copy- right : — " This court exercises its jurisdiction, not for the ' purpose of actiug upon legal rights, hut for the pur- ' pose of better enforcing legal rights, or preventing ' mischief until they have been ascertaiued. In all ' cases of injunctions in aid of legal rights — whether ' it be copyright, patent right, or some other descrip- ' tion of legal right, which comes before the court — ' the office of the court is consequent upon the legal ' right ; and it generally happens that the only ques- ' tion the court has to consider is, whether the case ' is so clear and so free from objection upon the ' grounds of equitable consideration, that the court ' ought to interfere by injunction, without a previous ' trial at law, or whether it ought to wait tUl the ' legal title has been established. That distinction ' depends upon a great variety of circumstances, and ' it is utterly impossible to lay down any general rule ' upon the subject by which the discretion of the ' court ought in all cases to be regulated." (a) 3 Mylne & Craig, 711, see p. 728.— The alterations in the practice of the Court, resulting from recent legislative enactment, will be found noticed at p. 300, infra. The intermediate portion of this lecture is now useful to a student, only as conveying information respecting the former practice, a knowledge of which is essential to the understanding of the recent decisions. 296 LECTUEE IX. In a subsequent ease {a), where the bill was one to restrain an alleged infringement of patent right, the same learned lord thus expressed himself: — " The jurisdiction of this court is founded upon legal " rights ; the plaintiff coming into this court on the " assumption that he~ has the legal right, and the court " granting its assistance upon that ground. When a " party applies for the aid of the court, the application " for an injunction is made either during the progress " of the suit, or at the hearing; and in both cases I " apprehend great latitude and discretion are allowed " to the court in dealing with the application. When " the application is for an interlocutory injunction, " several courses are open; the court may at once " grant the injunction — simpliciter, without more — a " course which, though perfectly competent to the " court, is not very likely to be taken where the de- " fendant raises a question as to the validity of the " plaintiff's title ; or it may follow the more usual, " and, as I apprehend, more wholesome practice in " such a case, of either granting an injunction and at " the same time directing the plaintiff to proceed to " establish his legal title, or of requiring him first to " establish his title at law, and suspending the grant " of the injunction until the result of the legal inves- " tigation has been ascertained, the defendant in the " meantime keeping an account." Lord Cottenham here points out the three most common courses as being : — 1. Injunction simply. (a) Bacon v. Jones, 4 Mylne & Craig, 433, see p. 436. LECTUEE IX. 297 2. Injimction -with a direction that plaintiff proceed to establish his title at law (a). 3. BiU retained for a limited time in order that plaintiff may establish his title at law, the defendant keeping an account in the meantime (b). As respects the second course, which implies the existence of some doubt on the part of the coui-t respecting the legal title of the plaintiff, the practice at the present day would be to require an undertaking from the plaintiff to abide by any order the court might think fit to make as to damages, in the event of the plaintiff failing to establish his right at law (c). As respects the third com'se, the allusion to the de- fendant keeping an account may demand a few words of explanation. Obviously, if the injunction be not gi'anted, the defendant will continue the acts of alleged infringement or piracy ; and should they in event prove to be either infractions of the plaintiff's patent right, or piracy of his copyright, the defendant ought to hand over to the plaintiff the fruits of his wrongful acts. It is with this view that the court, where the (a) The eqiuTalent under the modem practice, see note, p. 300, would be the granting of an interlocutory injunction upon special terms as to bringing the cause to a speedy hearing. Another and common mode' of dealing with cases in which the Court inclines to the view that the plaintiff is right, is to let the matter stand over until the hearing of the cause, upon the plaintiflF undertaking not to continue the acts complained of, or such of them as the Court thinks ought to be restrained, pending the trial of the question of right ; see Walker v. Brewster, L. E. 5 Eq. 25, at p. 26. {b) The modem equivalent to this course is simply a refusal of the injunction, reserving the costs of the motion until the hearing of the cause. (c) Or now, in the event of the plaintiff failing to obtain a decree at the hearing of the cause. 298 LECTURE IX. injunction is not granted, commonly requires the de- fendant to undertake to keep an account until the legal right is ascertained. The decisions in regard to the course to be taken by the court with respect to withholding or granting the injunction, are extremely numerous ; but, as intimated by Lord Cottenham in the case first cited, no general rule can be looked for. The substantial question always is, What course will, on the whole, be least Ukely to lead to wrong ? Will the plaintiff be most likely to suffer wrong, if the injunction be withheld, or the defendant, if the injunction be granted ? and in reference to the question whether the injunction shall be granted or withheld, the pecu- niary ability of the defendant to answer any damages that may be awarded against him, is not without relevance (a). Where the plaintiff's claim is in respect of a patent, two main questions are commonly raised, viz. : first, as to the vaHdity of the plaintiff's patent ; and, secondly, whether there has been an infringement. In reference to the first question, the length of enjoy- ment under the patent has always considerable weight with the court upon the point of withholding or grant- ing the injimction. The practice of the court (with the grounds for it) was recently thus stated by Lord Justice Turner, when Vice- Chancellor : " When the " patent is new, the public, whose interests are " affected by the patent, have had no opportunity of " contesting the vahdity of the patentee's title, and (a) Newall v. Wilson, 2 De Gex, Macn. & Gor. 282. LECTURE IX. 299 " the court refuses to interfere until his right has " heen established at law. But in a case where there " has been long enjoyment under the patent (the " enjoyment of course includiug use), the public have " had the opportunity of contesting the patent, and " the fact of their not having done so successfully " affords at least prima facie evidence that the title " of the patentee is good, and the court interferes " before the right is established at law " («). Where the plaintiff seeks the protection of equity in respect of copyright, the granting or withholding the injunction seldom turns iu any degree on the question of enjoyment. Occasionally a dry question of law arises respecting the plaintiff's title to copyright (fo), but more frequently the material question is piracy or no piracy. In reference to the question of the practice of the comi; in granting or withholding injunctions, I would call your attention to a section in the Chancery Pro- cedure Act of 1852 (c), which, as it seems to me, ought to have led to considerable alteration in the practice, but which, so far as I am aware, has been little acted upon ; I mean the 62nd. It is in these words : — " In cases where, according to the present practice " of the Court of Chancery, such com't dechnes to " grant equitable relief until the legal title or right ia) Caldwell v. Tanvlissengen, 9 Hare, 424. (6) e.g. Low v. Koutledge, 33 Law Journal Kep. (N.S.) Chanc. 717 ; on , L. R. 1 Ch. App. 42. (c) 15 & 16 Vict. cap. 86. 300 LECTURE IX. " of the party or parties seeking such relief shall have " been established in a proceeding at law, the said " court may itself determine such title or right with- " out requiring the parties to proceed at law to " establish the same." Of course you notice that the enactment is permissive merely; and, no doubt, in a considerable number of injunction cases the issues raised between the parties are of a nature fmore fitted for trial before a jury than by a single judge ; but certainly the new powers conferred by it on the court have not been very liberally exercised (a). (a) The pennissive enactment atove referred to has since been made compulsory in a more extended form, by the 25 & 26 Vict. o. 42, com- monly known as Eolt's Act ; which enacts that, whether the title to a relief or remedy be or be not dependent on a legal right, every question of law or fact cognizable in a Court of Common Law, on which the title to relief or remedy depends, shall be determined by the Court of Equity. The Act contains three exceptions to its general operation . . The first reserTing the right of the Court to direct an issue to be tried at the assizes, or in London or Middlesex. The second to the effect that where the object of the suit is to recover or defend the possession of land, relief shall be given only in accordance with rules and practice of the Court before the Act. (See Metropolitan Board of Works ■». Sant, L. R. 7 Eq. 197; Slade v. Barlow, L. R. 7 Eq. 296.) The third, exempting the Court from any obligation to grant relief where a Court of Law has concurrent jurisdiction if it shall al)pear that the matter has been improperly brought into equity. By the effect of this Act in nearly all the cases discussed in the lecture the ultimate decision of the question of legal right has been transferred from law to equity. There was at first some hesitation on the part of the Equity Judges as to removing from the consideration of a jury certain cases, such as those of nuisance, which were considered peculiarly fitted for deter- mination by a jury (see Eaden v. Firth, 1 Hemming & Miller, 573), but the hesitation has since disappeared (see Inchbald v. Kobinson, L. R. 4 Ch. App. 388, Eoskell v. Whitworth, L. E. 5 Ch. App. 469), and the trial is now commonly before the Court itself, and without a jury (as to which the student may refer to 21 & 22 Vict. cap. 27), the assistance of which has been but little resorted to, except in patent cases. LECTURE IX. 301 Finally, let me observe, in reference to both patent and copyright eases, that although the jurisdiction exercised by the court is in aid of the legaHitle, and although in by far the larger proportion of cases the plaintiff in equity conies asserting a legal title, it is equally clear, both upon principle and authority (a), that a person having an equitable interest in a patent- right or copyright is entitled to have that interest protected. But obviously his equitable interest can stand on no higher ground than the legal title out of which it is derived; so that the court, in interfering in aid of an equitable title, where the legal title from which it flows is disputed, must be governed, in grant- ing or withholding an injunction, by principles similar to those which prevail where the plaintiff comes upon a purely legal title. And now a few words respecting that species of right, often, though somewhat inaccurately, referred to under the general term " Copyright," viz., the author's rights in regard to the productions of his own mind previously to publication. It would be obviously monstrous to allow any person, who might either accidentally or surreptitiously have obtained a copy of the contents of another's writings, to publish those writings against his will. But the author's rights do not stop here. Suppose the author himself to give a copy of his work to a friend, or to allow that friend to make a copy. The latter does not thereby acquire a right to pubUsh the work. He must make no other use of his copy than (a) Mawman v. Tegg, 2 Euasell, 385. 302 LECTUKE rx. the author may be fairly supposed to have intended him to make; and in the absence of direct evidence it will not be presumed a right of publication was intended to be conferred. This was the very point decided in the case of the Duke of Queensherry v. Slieh- beare (a), in which an injunction was granted, at the instance of Lord Clarendon's executors, to restrain the publication of the History of the Rebellion by a person who, with the permission of Henry, Earl of Clarendon, the son and administrator of the great historian, had made a copy of the original MSS. Upon a similar principle it is held, that a person who writes and sends a letter to another does not convey to the latter an unqualified property, entitling him to publish it. The letter is addressed to him that he may read it, and not that he may print and publish it. Accordingly, in the leading case of Pope v. Curl (b), Lord Hardwicke restrained the defendant from pub- lisliing any letters written by Pope, though refusing to restrain the publication of letters written to him. So in the more recent case of Thompson v. Stan- hope (c) the widow of Lord Chesterfield's son was, at (a) 2 Eden, 329. (b) 2 Atkyns, 341. (c) Ambler, 737. See, also, Gee v. Pritchard, 2 Swanston, 402. Tlie student may with adrantage refer to and distinguisli the decisions which establish that if a person write and publish a work of fiction any other person has a right to dramatize it, and cause the drama to he acted (see Eeade v. Conquest, 9 Oommon Bench N.S. 755), though not to print the drama and publish it ; Tinsley v. Lacy, 1 Hemming & Miller, 747. And before the Dramatic Copyright Acts even a published drama might be adapted to representation, and put on the stage for profit, without the LECTUEE IX. 303 the suit of Lord Chesterfield's executors, restrained by Lord Apslej', Chancellor, from publishing Lord Chesterfield's letters to his deceased son, which had been allowed to remain in the widow's possession. The same principle appKes equally to an oral com- munication which is presumably made for a qualified pm'pose. Hence, in the case of the farce of " Love a la Mode," written by Macklin, it was held that the j)roprietors of a magazine had no right to employ a person to take down the words of the play and publish it (a). And similarly in more modern times, it was held, in the case of Mr. Abernethy's Lectures, that pupils attending lectures dehvered orally, though entitled to take notes for their own use, have no right to pubHsh the contents of those lectures (6). Finally, whenever there has been any conduct par- taking of breach of confidence, the court will go even farther in protecting the rights of authorship before publication. Thus, in the celebrated case of her pre- sent Majesty's Etchings, where impressions had been author's consent : Mtirray v. EUiston, 5 Baraewall & Alderson, 657. These decisions rest on the principle that the author's privilege under the General Copyright Acts is limited to the multiplication of copies, and that any one may make -what use he pleases of a published work so long as he does not multiply copies. If an author first publishes a play, and then turns the play into a norel containing the same incidents, his copyright in the play will be protected against piratical imitations, even though the piracy be from the novel, and not from the play ; Keade o. Lacy, 1 JohniBon & Hemming, 524. The authority of this last case, however, as an exposition of the law, is shaken, if not overruled, by the recent decision «f the Court of Queen's Bench in Toole v. Toung, Weekly Notes, 1874, p. 126, not reported in the regular reports up to the time of going to press. (a) Macklin v, Richardson, Ambler, 694. (J) Abemethy ■;;. Hutchinson, 1 Hall & Twells, 28. 304 LECTUEE IX. obtained surreptitiously, the parties into whose hands the impressions had come were restrained, not only from exhibiting the impressions and publishing copies, but even from publishing a catalogue containing an enumeration and descriptive account of those etch- ings (a). In reference to the whole of this class of cases of rights of authorship before publication, it is to be observed, that the author's rights very often rest partly upon equitable grounds, and that the question whether an injunction shall go or not is commonly decided by the court itself. In fine, there may be some doubt how far the jurisdiction by mjunction exercised in this class of cases can be said to fall within the " auxiliary " jurisdiction of the court, though it would have been impossible, without risk of conveying incomplete notions, to have avoided a cursory notice of the authorities. 3. "We now pass to Trade Marks. Cases of biUs filed by plaintiffs seeking to restrain the fraudulent imitation of trade marks, with a view of passing off goods not the plaintiff's as his, are of frequent occurrence. They must be taken to be clearly a branch of auxiliary equity. There is, however, a distinction between these cases and copyright cases, which must be borne in mind. There is no property in a trade mark {h) ; the plaintiff (a) Prince Albert «. Strange, 1 Hall & Twella, 1. (6) This position cannot be maintained in its integrity since the juJg- ments of Lord Westbury in the Leather Cloth Company (Limited) v. American Leather Cloth Company (Limited), 4 De Gex, Jones, & Smith, 137 (affirmed on appeal in D. P., 11 House of Lords Cases, 623), and Hall LECTURE IX. 305 does not come complaining that the defendant has infringed any right of property. The nature of his case is that the defendant has imitated his marks, for the purpose of fraudulently passing off his own goods as the plaintiff's (a). The distinction is not without importance, and it is especially well illustrated by the judgment — not less instructive because humorous — of Lord Justice Knight Bruce, in the case of Burgess v. Burgess {h). In that case the plaintiff. Burgess, who was the father of the defendant, had for many years exclusively sold a jDarticular sauce, well known as " Burgess's Essence of Anchovies." The defendant, the son, after acting for a long time as assistant to his father, at 107, Strand, the father's place of business, set up in trade on his own V. Barrows, Ibidem, 150. In some respects tlie controreray (as to -which see further McAndrew v. Bassett, 33 Law Jourual (N.S.) Chanc. 561, and Ainsworth u. Walmsley, L. R. 1 Eq. 618) may be regarded as verbal rather than substantial. (a) See the form of declaration at law, Crawshay v, Thornton, 4 Manning & Grainger, 357, and "Welch v. Knott, 4 Kay & Johnson, 747. But although the general nature of trade-mark cases be as stated in the text, fraud on the part of the defendant is not requisite to entitle the plaintiff to a decree in Equity protecting his exclusive right to a, trade mark : MUUngton v. Fox, 3 Mylne & Craig, 338 ; Burgess v. Hills, 26 Beavan, 244. The result seems to be that whUe at law the scienter may be essential to enable the plaintiff to recover, such is not the case in Equity. See also Dixon v. Fawcus, 30 Law Journal (N.S.) Q. B. 137. See also, as illus- trating the distinction between cases of copyright and of trade marks, The Colling Company v. Brown, 3 Kay & Johnson, 423, in which Lord Hatherley (then Vice-Chancellor Wood, decided that a foreign manufacturer has a remedy against a manufacturer here who fraudulently imitates his trade mark, whereas it was recently finally settled in the House of Lords, that a foreigner not resident here had, previously to the recent international Copyright Acts, no copyright in this country. (J) 3 De Qex, Maon. & ftor. 896. 306 LECTTJEE IX. account" in the City, placing over his shop the words, " late of 107, Strand," and there sold amongst other goods, a sauce which he called " Burgess's Essence of Anchovies." On bill filed, Yice-Chancellor Kindersley restrained the defendant from contiuuing over his shop the words " late of 107, Strand " (a), hut refused to restrain him from selling sauces under the name of " Burgess's Essence of Anchovies." The plaintiff appealed ; and on delivering judgment. Lord Justice Knight Bruce expressed himself as foUows : — " All the Queen's subjects have a right, if they will, " to manufacture and sell pickles and sauces, and not " the less that their fathers have done so before, them. " AU the Queen's subjects have a right to sell these " articles in their own names, and not the less so that " they bear the same name as their fathers; nor is " there anything else that this defendant has done in " question before us. He follows the same trade as " that his father folio ws and has long followed, namely, " that of a manufacturer and seller of pickles, pre- " serves, and sauces ; among them, one called 'essence " of anchovies.' He carries on business under his own " name, and sells his essence of anchovies as 'Burgess's " Essence of Anchovies,' which in truth it is. If any " circumstance of fraud, now material, had accompanied, ''' and were continuing to accompany, the case, it would " stand very differently ; but the whole case lies in " what I have stated. The whole ground of complaint " is the great celebrity which, during many years, has (a) As to the rights of former managers or partners on setting up in business for themselves, see Hookham v. Pottage, L. K. 8 Ch. App. 91. LECTURE IX. 307 " been possessed by the elder Mr. Bixrgess's essence of " anchovies. That does not give him such exclusive " right, such a monopoly, such a privilege, as to prevent " any man from making essence of anchovies and " selling it under his own name. Without therefore " questioning any one of the authorities cited, all of " which I assume to have been correctly decided, I " think that there is here no case for an injunction." In reference to this class of cases respecting trade marks, the practice of the court in granting or refusing injunctions or retaining the bill is substantially the same as in patent or copyright cases. There is a right of action at law, though not in respect of wrong done to any species of property, but in respect of the fraudulent contrivance to pass off goods as and for the plaintiff's. Accordingly, in a very recent case relating to labels printed in imitation of those commonly used by Johann Maria Farina, the celebrated maker of Eau de Cologne, Lord Cranworth, L.C., not being altogether satisfied that the injunction which had been granted by Vice- Chancellor Wood ought to have gone, retained the bill for a year, with liberty to the plaintiff to bring any action which he might be advised (a). 4. The fourth class mentioned as demanding the interposition of equity by injunction, was " cases of Nuisance." These are commonly subdivided into |)Mjiie nuisance and private nuisance. The distinction is material in reference to the form (a) Farina v. SilTerlock, 6 De Q-ex, Maen. & Gor. 214. See, as to the present practice, note (i), p. 297, ante. X 2 308 LECTURE IX. of remedy. In cases oi public nuisance, the remedy is at law by indictment, and in equity by information at the suit of the Attorney-General. In those of private nuisance, at law by action on the case, and in equity by biU. It is not always easy to determiae whether certain particular acts are a public or merely a private nuisance. In the famous Clapham bell-ringing case (a), Vice- Chancellor Eandersley thought that, to constitute a public nuisance, the thing done must be a damage or injury to all persons who came within the sphere of its operation, though of course it might be so in a greater degree to some than others, iastancing noxious fumes from a factory, and stopping the king's highway. But the particular case before him, viz., of a peal of beUs, wliich might be an intolerable nuisance to a person living close by, yet pleasurable to one living at a distance, could not be thought to constitute a public nuisance. The distinction, however, has become of minor import- ance so far as respects obtaining redress for private individuals, for the Vice- Chancellor ruled in the same case, that what is a public nuisance, may be also a private nuisance to a particular individual, by inflicting on him some special and particular damage ; and that, in that event, the particular individual has his remedy in equity by bill, without making the Attorney- General a party (b). In regard to cases whether of public or of private nuisance, both the grounds for the interference of (a) Soltau V. De Held, 2 Simons (N.S.), 133. (6) Soltau V. De Held, 2 Simons (N.S.), 145—151. And an aotion will lie at law ; Iveson v. Moore, Holt's Rep. 16. LECTURE IX. 309 equity, and the terms on which interference is granted, are substantially the same as in patent and copyright cases. The remedy at law, in the case of public nuisance by indictment after indictment, and in the case of private nuisance by action after action, is wholly inadequate to answer the ends of justice ; and accord- ingly the Court of Equity, while requiring the most clear proof of the legal right, or else carefully pro- adding for its establishment, lends its strong arm to law. Perhaps one of the happiest illustrations of the beneficial interposition of equity to restrain acts which, if done, would have amounted to a public nuisance, is that afforded by the Datchet Bridge Case (a). There, the bridge lying partly in Berkshire and partly in Buckinghamshire, the medium filum of the Thames being the county boundary, and the bridge requiring either repair or rebuilding, the magistrates of the respective counties were unable to agree upon any general plan. Bucks accordingly proceeded to repair its own side ; but the difficulty was, how to deal with the centre bay of the bridge. The Bucks engineer ingeniously contrived to lay joists so as to support his half of the centre bay, without direct support from the Berkshire side, but by the aid of supports derived from the old joists over the centre bay, which rested at one end in Bucks and at the other in Berks. Thereupon, the Berkshire magistrates, imwilling to allow such a (a) Attorney-General v. Forbes, 2 Mylne & Craig, 123-. 310 LECTURE IX. triumph to the opponent county^ made an order at quarter sessions for cutting through on their own side the old joists of the centre bay. An information and bill was filed at the relation of the county treasurer for Bilcks to restrain the proposed cutting of the joists ; and tipon a demurrer being put in, Lord Cottenham, ia an able judgment, upheld the jurisdiction of the court. Undei^ the head of "private nuisance " (or of its equivalent, "public nuisance," causing special damage to some particular individual) may be ranged a large variety of injmies; the legal remedy for which, by action on the case, would afford most inadequate re- dress. Amongst these may be mentioned obstructions to free use of lights *s by building so as to darken windows (a) ; interference with the free and healthy use of air, as by burning bricks in the neighbourhood of some particular house (6) ; obstructions to free use of water, as by wrongfully diverting or fouling a stream (c) ; obstructions to rights of waj'', as by cutting a trench across a road {d) ; and disturbance of rest, as by ringiug bells of heavy weight at unreasonable times, of which last kind was the case of the Roman CathoUc (a) Herz ». Union Bank of London, 1 Jurist (N.S.), 127. Seelsenberg ■i). East India House Estate Company, 33 Law Journal (N.S.), Chanc. 392 ; Johnson v. Wyatt, Ibidem, 394. (5) Walter v. Selfe, 4 De Gex & Smale, 315 ; Pollock v. Lester, 11 Hare, 266. See, too, Beardmore v. TreadweU, 3 Giffard, 683 ; Crump v. Lambert, L. R. 3 Eq. 409. (c) Wood V. Sutoliffe, 2 Simons (N.S.), 165. (d) Spencer v. London and Birmingham Railway Company, 8 Simons, 193. LECTUEK IX. 311 chapel at Clapham, before referred to (a) : in all which, and many others, though there be a remedy at law by action on the case, the court will protect the legal right by injunction, 5. My fifth class of'cases, " Waste," alone remains. The equitable jurisdiction to restrain waste forms a large and interesting subject, of which only a very small portion falls within the ambit of my present lecture. There was at common law a form of proceeding by prohibition to stay waste. Subsequently this was abolished by the Statute of "Westminster (6). At com- mon law also a writ of Estrepement (c) lay after judgment, and before execution, to stay waste ; and by the Statute of Gloucester (d), the operation of this writ was made applicable before judgment where litigation was pending. In other respects the law afforded no protection. The action of waste gave and gives (for it stiU lies) none other remedy than that of a punishing or com- pensating justice. But equity, in aU cases where an " action of waste" would He, will protect the legal right by injunction, and supply the need of protective justice. Not that you are to suppose that the interference of equity in matters of waste is exercised in aid only of the legal (a) Soltau V. De Held, 2 Simons (N.S.), 133; and see Walker v. Brewster, L. R. 6 Eq. 25 ; Inchbald v. Eobinson, h. B. 4 Ch. App. 388 ; Roskell V. Whitworlh, L. E. 5 Gh. App. 469. (6) 13 Edward I. stat. 2, cap. 14. (c) A word signifying extirpation, (d) 6 Edward I. cap. 13. 312 LECTURE IX. right. On the contrary, it has given redress where none could have been obtained at law. Thus, when an estate was limited to A for life, remainder to B for life, remainder to C in fee, and A, during the lifetime of B and C, committed waste, at law B had no remedy by action of waste, because he was tenant for life only, and the damage must have been laid as having been done to the inheritance ; and C had no remedy, because his estate was not in possession. Still, in this case, equity from the earliest times interfered and granted an injunction (a). Again, equity interfered, and still interferes, even as against the strict legal rights of tenant for life without impeachment of waste, by restraining him from commit- ting wilful destruction, as from pulling down mansion- houses (&), or from felling timber planted and left standing for ornament (c). But these special inter- positions of equity, however interesting a, branch of study, form no part of the auxiliary jurisdiction of the court {d)i Having now pointed out the most important instances {a) Egertou, Lord Keeper, is reported to have stated, in 41st Elizabeth, Moore, 554, that he had seen a precedent of a decision to this effect, of the time of Richard II. At a later date, an action on the case in the nature of waste lay ; 2 Saunders' Reports, 252, note (7). (6) Vane v. Lord Barnard, 2 Vernon, 738. (c) Marquis of Downshire v. Lady Sandys, 6 Vesey, 107. See also, Micklethwait v. Mickleth-wait, 1 De Gex & Jones, 504. (d) By section 25, sub-section (3) of the Judicature Act, 1873, it is enacted that "An estate for life without impeachment of waste shall not " confer or be deemed to have conferred upon the tenant for life any " legal right to commit waste of the description known as equitable waste, •' unless an intention to confer such right shall expressly appear by the " instrument creating such estate." LECTURE IX. 313 of the auxiliary interposition of equity by injunction, it is fitting that I should call your attention to the power recently conferred on the common law courts of grant- ing injunctions. The Common Law Procedure Act of 1854 (a) in substance empowers a plaintiff, at any time after action brought, and either before or after judgment, to apply ex parte to the common law courts, or a judge, for a writ of injunction, which writ maj' be granted or denied on such terms as to duration of the writ, keep- ing an account, giving security, or otherwise, as to such com't or judge shall seem reasonable or just; and, in case of disobedience, the writ may be enforced by attachment. The new jurisdiction thus conferred may be said, I believe, to be yet on trial ; at all events, the reported decisions in reference to its exercise are as yet few in number (b). The path, however, of the common law judges would seem to be tolerably easy. The new jurisdiction is a simple substitute for the auxiliary jurisdiction of the Equity Court, and if exercised liberally, j^et with the same sedulous anxiety exhibited by our equity judges to avoid undue interference with legal rights, it ought, in a large number of cases, to render the assistance of equity needless. Indeed, comparing the 62d section of the Equity Procedure Act of 1852 (c), before (a) 17 & 18 Vict. 125, s. 82. (J) See Jessel v. Chaplin, 2 Jurist (N.S.), 931 ; Baylis v. Legros, 2 Common Bench Reports (N.S.), 316 ; Sutton v. South Eastern Eailway Company, L. R. 1 Exchequer, 32. (c) 15 & 16 Vict, cap, 86. 314 LECTURE IX. referred to, with this section of Common Law Pro- cedure Act, the result would seem to be that where the case is one suitable for decision by an equity judge, a bill in equity ought to dispose of the whole matter, including the question of legal right ; while, where the circumstances are such that a trial by jury is .desirable, an action at law in the first instance, and an applica- tion for an injunction to the common law court, will be the proper course (a). And here I may observe that it is impossible not to recognise the generally beneficial tendency of the late legislation, communicating to the common law court powers formerly possessed only Tjy the courts of equity. Let me sum up shortly what has been recently done for the common law jurisdiction in this respect. Their procedure has been improved by the powers (a) The experience of the fourteen years since the aboTe Lecture was delivered shows only a Tery sparing resort to the new jurisdiction by Injunction at Common Law. This may be partly attributable to the circumstance that the Common Law Courts cannot interfere upon a mere apprehension of wrong. There must be an existing cause of action to found the jurisdiction. But the superiority of the Chancery procedure in respect to interlocutory injunctions, in point of speed and generally, must be regarded as the principal cause of the Common Law jurisdiction remaining unused. It remains to be seen whether upon the Judicature Act, 1873, coming into operation, the injunction business of the new High Court of Justice will still gravitate towards the Chancery Division of the Court or be attached to the Common Law Divisions. The former seems the more pro- bable result. The Act (see section 25, sub-section 8) and proposed new rules in pursuance thereof (see Order xlvii.) leaves the future practice almost entirely free and undefined, and in the absence of any chart or compass to guide the conduct of this class of business in the Common Law Divisions, it may be expected that the resort will be to the Chancery Division, which, though not bound by, will, as a general rule, follow the existing practice and usage of the Court of Chancery, LECTUEE IX. 315 of discovery and production of documents, mentioned and explained in my sixth lecture. They have heen invested with the power of granting injunctions just mentioned. Their powers of proceeding by mandamus have been enlarged (a), though not so as to enable tlaem to decree a specific performance under the name of mandamus (6). Something of the nature of a bill for the delivery up of specific chattels has been im- parted to the action of detinue by giving to the common law judge power upon the application of the plaintiff to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining it (c), though the efficacy of this clause is somewhat impaired by the absence of any provision other than distress for enforcing the return of the article (d). A power has been given enabling a defendant who is sued at law, but has a clear defence in equity, to set up his equitable defence by way of plea (e), so that om' jurisprudence is rescued from the absurdity of a man recovering on one side of "West- minster Hall what he is bound to pay back on the other (/) ; though the common law judges have decided to allow pleas of this kind only where the equity set (a) 17 & 18 Vict. cap. 125, o. 68. (6) Benson v. Paull, 2 Jurist (N.S.), 425. (c) 17 & 18 Vict. cap. 125, ». 78. {d) In equity there would simply be a decree for return ; and in default of obedience the defendant would be committed. (e) 17 & 18 Vict. cap. 125, ss. 83 to 86, which provisions, however, do not apply to an action of ejectment ; Neave v. Avery, 16 Common Bench Reports, 328. (/) Note for Student. — The Court of Chancery used formerly to sit at Westminster. 316 LECTUEE rx. up is a simple unqualified answer to the action (a). Finally, where an action is now brought upon a bill of exchange or other negotiable instrument, the common law com-t is invested with the old head of equity juris- diction, which consisted in ordering the loss of the instrument not to be set up upon a proper indemnity being given (6). The bare enumeration of these additional powers suggests naturally to the mind the question of the feasibility of a fusion of law and equity; a question far too large for discussion at the present hour, and perhaps altogether too speculative for consideration in a course of elementary lectures (c). It may indeed have occasionally appeared to some of you that I have indulged too freely in matters of mere opinion. The present, however, is certainly not a period at which the law can with advantage be treated dogmatically. These are troublous times, both for jurisprudence and the legal profession. Certainly we lawyers of the pre- sent day do not walk in pleasant paths. The short- comings of the law are freely laid to our charge, and we are expected to make them good. That the jurisprudence of imperial Eome, based as it was upon a pure despotism (d), should have viewed (a) Wodehouse v. Farebrother, 5 Ellis & Blackburn) 277 ; Best v. Hill, L. R. 8 C. B. 10. (6) 17 & 18 Vict. cap. 125, s. 87. (c) The Judicature Act, 1873, may be regarded as the first and most difficult step (the most difficult because iuTolving the greatest sacrifice of natural feeling and of old-established and cherished privileges) towards the accomplishment of fusion. But much will remain to be done even after the Act shall have come into operation, which cannot now be until November 2, 1875. (d) Quod principi placuit legis habet vigorem ; Inst, I. tit. i. 1. 6. LECTUEE IX. 317 the legislatoi' as the best expounder of his own laws, need not sui-prise us. It was, at least, consistent when it is said, " Vel quis legum senigmata solvere et " omnibus aperire idoneus esse videbitur nisi is cui " soli legislatorem esse concessum est?'.' (a). But that our countrymen of our own age, members of a free commimity, with whom the severance of the legislative from the judicial fimctions is, or ought to be, an article of political faith, should fall into a converse error, and call upon our profession to do the work of the legis- lator, and as a simple act of ordinary duty to reform the law, may well excite our astonishment. The injustice of the demand is too obvious to need comment. The duty of the legal profession, as a body, is to work the law — and hard enough the work often is — not to make the law. AVe cannot, however, with propriety disregard alto- gether the general current of the feelings and convic- tions of that large community of which our smaller one forms part ; and if I have occasionally digressed into matters of opinion respecting either the advantages or possible evils of recent legislation, or the probable good to be hoped for from the hand of amending reform, it has been because I felt and feel that a legal education based upon the dry results of authoritative decision and legislative enactment must fall short of what is fairly due to the spirit of our age. (a) Codex, Lib. I. tit. xiv. 1. 12. SUPPLEMENTAKY LECTUKES.* Election, A EiEST general notion of the doctrine of Election wiU, I thiak, be better conveyed by a simple example than by any general definition. A testator seised of Blackacre in fee and Whiteacre in tail devises Blackacre to his eldest son and White- acre to the younger, and dies. The eldest son claims Blackacre, as devisee, and Whiteacre (which his father had no legal power to devise) as heir in tail. There- upon a Court of Equity says, No, you shall make your " election" to claim either under or agaiast your father's will. You shall not at the same time that you accept Blackacre as devisee deprive your younger brother of Whiteacre by setting up your paramount title as issue in tail. This illustration is, in fact, that afforded by an Anonymous Case in Gilbert's Equity Reports, page 15, often referred to, and which, as it is very short, I wiU proceed to read. * The folio-wing four leotuies formed part of a second course deHrered in the years 1858—1859. ELECTION. 819 " The case was this : — A. was seized of two acres,. " one in fee, t'other in taU; and having two sons, he, " by- his wUl, devises the fee simple acre to his eldest " son, who was issue in tail ; and he devised the tail " acre to the youngest son and dy'd: the eldest son " entered upon the tail acre ; whereupon the youngest " son brought his bill in this court against his brother, " that he might enjoy the tail acre devised to him, or " else have an equivalent out of the fee acre; because " his father plainly designed him something. Lord " Chancellor. — This devise being designed as a pro- " vision for the younger son, the devise of the fee " acre to the eldest son must be understood to be with " a tacit condition, that he shall suffer the younger " son to enjoy quietly, or else, that the youngest son " shall have an equivalent out of the fee acre, and " decreed the same accordingly." In the simple instance just put, the doctrine and the appUcation of it would probably meet with the approbation of a very large proportion of educated men, whether lawyers or laymen ; and yet, on looking closely, it is impossible not to perceive that this decision contains the first step towards an enormous stretch of authority. The Court of Equity, in fact, imports into the will a condition which is not expressed on the face of it. Let me put another case, and you will, I think, at once see what I mean. Suppose the father entitled to fee simple property of very large value, and to be also entitled as tenant for life to a small outlying property, of which the eldest son is tenant in fee in remainder, situated in a distant 320 SUPPLEMENTAET LECTURES. couiity and in no way connected with the family estale. Under these circumstances the father makes his will, devising all his real estate, and also the outlying pro- perty of his son, to the first son for life, remainder to his issue in tail, remainder to the second son for life, &c. In this case the doctrine of election equally applies — the first son cannot at the same time claim his life estate under the will and claim his own property against it. Yet it is impossible not to feel that the court may by the application of the doctrine in this case be doing what the testator himself would not have wished to be done. Before, however, pursuing this matter further, I will indicate shortly the general order I propose to adopt in my discussion this evening. First. — I shall consider the broad leading principles of the doctrine of election, illustrating them by occa- sional references to the civil law. Secondly. — I shall refer to some of the more remark- able classes of decisions establishing that under certain circumstances a case of election does or does not arise. Thirdly. — I shall add a few words respecting the application of the doctrine to persons under disability. (I.) Applying ourselves in the first instance to the consideration of the principles of the doctrine, let us revert to the examples before given. What is it that a Court of Equity does when it calls into operation the doctrine of election ? It implies a condition where none is expressed. In the case first supposed, to repeat the words of Lord Chancellor Cowper, " the " devise of the fee acre to the eldest son is under- ELECTION. 321 " stood to be with a tacit condition that he shall suffer " the younger son to enjoy quietly." In the secondly supposed case, the Court assumes that the life estate in the whole property settled is conferred conditionally only on the son allowing his own small outlying pro- perty to be brought into settlement. But is this a justifiable implication ? The testator has imposed no condition in terms. Is a Court of Equity warranted in importing a condition iato his will? The answer to this question involves the in- quiry, What was presumably the testator's intention ? Now it is obvious that the disposition made by the testator must have been made under one of the follow- ing states of circumstances : (a) Either the testator knew that the property which he assumed to deal with was not his own, and yet he advisedly assumed to give it ; or, (/3) He so gave it erroneously supposing it to be his own.* a. — The first case presents far less difficulty than the second, though (lest any of you should even for a few minutes be left under an erroneous impression) I win say at once that, in our system of equity juris- prudence, the doctrine of election apphes equally in each case. In the first case the testator, conscious of his own want of power, has nevertheless said, I choose this estate which belongs to A. to go as part of my property, and it can hardly be doubted that he relies on the (*) ■Whether the erroneous belief was due to want of sufficient infor- mation or to momentary forgetfulness, seems immaterial. V 322 SUPPLEMENTAET LECTUBES. benefits which he by his will confers on A. as the in- ducement to A.'s consenting to ratify his wiU. Certainly it may be said : " The testator knew the facts, and has " omitted to impose any condition ; why should you " imply one ?" The answer is, he has devised to the devisee on the assumption of the latter's compliance. To give the devisee the estate which the testator had power to dispose of, and to allow him to claim his own by title paramount, would be to frustrate the clear undeniable intention of the testator. /3. — But when we approach the secondly supposed state of circumstances, viz. that the testator erroneously supposed that the estate which he has assumed to devise was in fact his own, the difficulty seems far greater (a). EecoUect my secondly supposed illustration, viz. that of a testator including in a general devise in strict settlement a smaU outlying estate of which he was only tenant for life, and his son tenant in remainder in fee. Assume farther, that as regards various other small properties, similarly settled, the testator has abstained from affecting to devise them, but that as regards this particular small estate he had included it under the erroneous belief that it was his own. Here it is almost impossible to resist the conviction that — ^to apply the doctrine of election — to (Compel the son to bring his own estate iuto settlement, is not to carry out, but to (ffl) In a recent case, Cooper i>. Cooper, L. K. 6 Ch. App. 15, V.-C. Stuart appears to have considered (see his judgment at note 2, page 16 of the Report) that erroneous belief as respects power of disposition was necessary to raise a case of election. But this doctrine was on appeal treated as unsound. ELECTION. 323 frustrate the wishes which the testator would probably have entertained had he known the facts. It is, however, perfectly clear, that according to our system of jurisprudence, the doctrine of election equally applies. The ground commonly assigned, is that given by Lord Alvanley in his judgment, in Whistler y, Web- ster (a). He there says : " The question is very short ; ' whether the doctrine laid down in Noys v. Mordaunt ' and Streatfield v. Streatjield, has established this ' broad principle ; that no man shall claim any benefit ' under a will, without conforming, as far as he is able, ' and giving effect, to everything contained in it, ' whereby any disposition is made showing an iaten- ' tion, that such a thing shall take place, without ' reference to the circumstance whether the testator ' had any knowledge of the extent of his power, or ' not. Nothing can be more dangerous than to specu- ' late upon what he would have done, if he had known ' one thing or another. It is enough for me to say, ' he had such intention ; and I will not speculate, ' upon what he would have intended in, different ' cases put." I should myself have thought the answer to these observations lay on the surface. The doctrine of elec- tion proceeds, or professes to proceed, upon intention. Thus, Mr. Swanston, in his celebrated note to Dillon V. Parker (b), says : " The foundation of the equitable " doctrine of election is the intention, explicit or pre- " sumed, of the author of the instrument to which it (a) 2 Vesey, jun., 370. (6) 1 Swanston, 401. Y 2 324 SUPPLEMENTAEY LECTURES. " is applied." In furtherance of the presumed iaten- tion j^ou imply a condition. You assume the testator to say, I give you an interest in my property condi- tionally on your ratifying the disposition which I have made of your own ? But how can the testator be sup- posed so to speak in a case where, by the hypothesis, he really believes himself to be only dealing with what is his own. The "intention" referred to by Lord Alvanley in the words just read, is a different intention altogether, viz. the intention that the devisee shall have a particular estate which the testator professes to devise though it be not his own. However, that the doctrine of election applies ac- cording to our law where the testator erroneously sup- poses he is dealing with his own property, is a point too firmly settled to admit now of a moment's question. The result would seem to be that the doctrine, though professing to be based upon intention, is wholly inde- pendent of it ; that the Court presumes an intention, on the part of the author of every instrument, that all persons deriving benefits under that instrument shall be bound to give effect to all dispositions thereby made of their own property ; and that it will allow no evidence to be given to show that such presumed intention could not really have existed. The doctrine of election thus becomes a positive rule, independent of intention, yet deriving its value from the fact that it is calculated in a large majority of instances to effect the probable intention. A few words comparing the rules of the civil law, from which our own doctrine of election was un- ELECTION. 325 doubtedly derived in the first instance, with those of our own jurisprudence, may not he amiss. According to the testamentary system of the civil law, some person was commonly constituted heir (or, as we should say, devisee), to whom a time was allowed for deciding whether he would accept or renounce the in- heritance. If he accepted, he did so subject to all the burdens of debts and bequests which the testator had thought fit to impose.- Amongst the burdens thus assumed by the heir was that of procm-ing for any legatee, or giving to biTn the value of, any particular subject-matter bequeathed to him which belonged to any third party. Thus a testator said, I bequeath to Claudius the house of Sempronius, situate at Tus- culum. If the heir accepted the inheritance, it became his duty either to purchase the house of Sempronius and make it over to Claudius, or, if this was impos- sible, to pay to Claudius the appraised value of the house. But this rule applied only where the testator knew that the house was that of Sempronius ; and not if he had made the bequest supposing it erroneously to be his own. In the SecondBook of the Institutes, title xx., s. 4, after explaining the general doctrine of election, to the effect just mentioned, the 5th section continues thus : " Quod autem diximus alienam rem posse legari, ita " inteUigendum est, si defunctus sciebat alienam esse, " non siignorabat. Forsitanenim si scivisset alienam " rem esse, non legasset." You will thus observe that the civil law, from which there can be little doubt our own doctrines were derived. 326 SUPPLEMENTAET LECTCHES. differed most materially from ours in excluding, from the application of election, cases proceeding from an erroneous supposition of the testator (a). Bearing, however, in mind that, in our system, elec- tion applies whether the testator was or whether he was not aware that he was dealing with property not his own, let us next proceed to examine a little more closely the nature of the condition inferred. I have hitherto referred to it as a tacit condition annexed " that the person owning the property will not dispute " the disposition made thereof by the testator." But this is not all. The form of condition assumed is somewhat more complex. I turn again to the Anony- mous Case in Gilbert, where the tacit condition is said to be, " that he shall suffer the younger son to " enjoy quietly, or else have an equivalent out of the " fee acre." The condition assumed to exist is, therefore, you see, alternative in form. This is immaterial where the donee elects to confirm the will, but what is the effect where he elects to take against it ? Why, the Court lays hold of the property given to him, and sequesters it for the purpose of making compensation to the disappointed legatee to whom the property of the electing party was bequeathed, in respect of the loss which he has sustained by the withdrawal of that property from the operation of the wiU. (a) The Frenoli code, rejeoting altogether the doctrine of election, provides, Cod. Civ. § 1022, as follows : — "Lorsque le testateair aura l^gue la chose d'autrui, le legs sera nul, soit que le testateur ait connu, ou non, qu'elle ne lui appartenait pas.'' ELECTION. 327 This, you will observe, is a still higher stretch of aiithority than that hitherto supposed to be exercised. The tacit condition inferred is not merely "you shall confirm or forfeit," for if this were so, then, upon faUiag to confirm, the forfeited property would have sunk into the bulk of the testator's estate for the benefit of the heir or residuary legatee ; but is, " You " shall confirm, or, out of the property given to you by " the testator, make a compensation to the person " whom you disappoint" (a). The doctrines of the Court on this point, together with the extreme difficulty of reconciling them with strict principles of construction, are thus forcibly pointed out by Sir Thomas Plumer in the case of Gretton v. Haward (b) : — " Few cases are to be found on the subject, but it ".must be acknowledged that the language of the great " judges by whom it has been discussed, proceeds to " the extent of ascribing to the Court an equity to lay " hold on the estate thus taken from the devisee by " the principle of election, and dispose of it in favour " of those whom he has disappointed; not merely " taking it from one, but, such is the uniform doctrine, " bestowing it on the other, A doctrine not confined " to instances in which the heir is put to election, and " which may be said to bring him within the operation " of the general principle, but prevailing as an uni- (a) Upon the question whether "compensation" forms part of the Scotch doctrine of "Approbate and Eeprobate," see Bell's Commentaries, 6th edition (by Shaw), page 68. (J) 1 Swanston, 423. 328 SUPPLEMENTAET LECTUEES. " versal rule of equity, by which the Court interferes " to supply the defect arising from the circumstance " of a double devise, and the election of the party to " renounce the estate effectually devised ; and instead " of permitting that estate to fall into the channel of " descent, or to devolve in any other way, lays hold of " it, to use the expression of the authorities, for the " purpose of making satisfaction to the disappointed " devisee : a very singular office ; for in ordinary cases, " where a legatee or devisee is disappointed, the Comt " cannot give relief; but here it interposes to assist " the party whose claim is frustrated by election. " Such is the language of Lord Chief Justice De Grey, " cited with approbation by Lord Loughborough ; ' the " ' equity of this Court is to sequester the devised " ' estate quousque tUl satisfaction is made to the disap- " 'pointed devisee.' I conceive it to be the universal " doctrine that the Court possesses power to sequester " the estate tUl satisfaction has been made, not per- " mitting it to devolve in the customary course. Out " of that sequestered estate so much is taken as is " requisite to indemnify the disappointed devisee ; if " insufficient, it is left in his hands. In the case to " which I have referred. Lord Loughborough uses the " expression that the Court ' lays hold of what is de- " ' vised, and makes compensation out of that to the " ' disappointed party.' " ****** " It would be too much now to dispute this prin- " ciple, established more than a century, merely on " the ground of difficulty in reducing it to practice. ELECTION. 329 " and disposing of the estate taken from the heir-at- " law without any will to guide it; for to this purpose " there is no will ; the will destined to the devisee, " not this estate, but another ; he takes by the act of " the Court (an act truly described as a strong opera- " tion) ; not by descent, not by devise, but by decree ; " a creature of equity." These observations of Sir Thomas Plumer lead me naturally to the consideration of the much-vexed question whether, where an election is made to take against the will, the principle to be adopted in adjust- ing the rights of the pai-ties be forfeiture or compen- sation ; that is to say, whether a person electing to take in opposition to the terms of an instrument for- feits absolutely all benefit thereunder, or only, as Sir Thomas Plumer has expressed it, so much as is requi- site to indemnify the disappointed devisee. At iirst blush it might seem imaccountable that a question so fundamental should remain unsettled at the present day. But, on consideration, you will see that circumstances calling for a decision are not very likely to arise. In deciding to elect to take either against or imder a will, the person bound to elect will, in the very large majority of cases, be influenced only by his pecuniary interest. If the propertjr bequeathed to him be more valuable than his own, he elects to take imder the wiU ; if less valuable, it matters little whether the principle be forfeiture or compensation, since the whole subject-matter is insufficient to answer the claim of the disappointed legatee. It is, however, easy to suppose a case calling for a decision; and 330 SUPPLEMENTAEY LECTURES. perhaps it is strange no such case should hitherto have arisen. Thus a testator bequeaths a sum of i£100,000 to A., and devises to B. an old family estate of far less value of which he (the testator) is tenant for life only, with remainder to A. Here A., having a special affection for the family property, may elect to take it, and then the question arises, does A. forfeit the whole £100,000, or so much only of that amount as is equal to the family estate which he has taken in opposition to the will? Upon this point I must, for lack of time, content myself by referring you to Mr. Swan- ston's note to the case of Gretton v. Haward (a), and to the more recent authorities referred to in Jarman on Wills (6). You will, I think, be perfectly safe in assuming that compensation, and not forfeiture, is the rule. The only remaining question of general principle in reference to the doctrine of election is one as to which no reasonable doubt really exists, but to which I advert chiefly that I may recommend to your perusal Mr. Swanston's able note on the subject (c). I mean the question whether the doctrine of election be a pm'ely equitable doctrine, or, as Lord Mansfield on one occasion (and indeed even Lord Redesdale on another (d) ) contended, a doctrine of law as well as of equity. It would be vain to attempt to paraphrase the beautifully cogent argument of Mr. Swanston in (a) 1 Swanston, 433, note (a). (b) Vol. I., p. 373 (2nd edition) ; pp. 417, 418 (3rd edition). (c) 1 Swanston, p. 425. (cj) Birmingliam v. Kirwan, 2 Sclioales & Lefroy, 444 (see p. 450.) ELECTION. 331 the note just alluded to. You cannot do better than study it with the utmost care. There can be no doubt that the doctrine is a purely equitable doctrine. Most commonly indeed it is called into operation in the course of some matter in which the Court has abeady acquired jurisdiction — as where a suit has been insti- tuted for the administration of a testator's estate, and the question incidentally occurs whether a case of elec- tion arises upon the will. Occasionally, however, the circumstances calling for the application of the doc- trine constitute the sole reason for coming into equity, and then in truth the doctrine becomes really a head of equity jurisprudence. The case of Green v. Green (a) was a case of this kind. There, by a settlement on the marriage of Edward Green with Elizabeth Green, the plaintiff, certain estates to which Edward Green was entitled as tenant in tail in remainder, were expressed to be settjed (but without effectually barring the estate tail), as to part to the use of Edward Green for life, remainder to the plaintiff for hfe, remainder to the first and other sons of the marriage, and as to part to the use of Edward Green for life, remainder to the first and other sons, &c., immediately on the determi- nation of his life estate. Other estates, to which the plaintiff was entitled in fee simple, were by the same settlement conveyed to similar uses. Upon the death of Edward Green, the defendant Edward Henry Green (his only son and heir-at-law) entered on the estates (a) 2 Merivale, 86. See, also, Brown v. BroivD, L. K. 2 Eq. 481, and cases there cited. 332 SUPPLEMENTAEY LECTUEES. to which he was entitled as tenant in tail in possession under the settlement, and treating the settlement as ineiFectual to bind the estates to which his father was entitled as tenant in tail at the time of the settlement, brought ejectment to recover those portions thereof in which the plaintiff took a life estate by the settle- ment, and into which she had entered as tenant for life. The widow thereupon filed her bill, and an injunction was granted on the ground of election, to restrain the defendant from proceeding with the ejectment. The facts of the case just referred to suggest the observation that the doctrine of election applies just as much to double claims under and against a settle- ment or other instrument as under or against a will. I haVe hitherto, in the illustrations selected and in the language used, treated the doctrine as arising exclu- sively upon testamentary instruments, and this, partly because a very large proportion of the cases of election which arise, do in fact arise upon wills, and partly for the sake of brevity. You have only to recollect that where I have used the word " testator," the more com- prehensive expression " author of the trust " might have been more correct, though less intelligible ; and that where I have spoken of " wills " my observations apply to aU instruments. I would further add, that for the sake of convenience I shall throughout the remainder of my lecture adopt generally the same limited phraseology as hitherto. (II.) I now pass to the second division of my task, viz., the mention of some of the more remarkable ELECTION. 333 classes of decisions establishing that under certain circumstances the doctrine of election does or does not apply. In reference to questions of this kind the leading rule is, that you must find on the face of the will a clear intention on the part of the testator to dispose of the property which is not his own. In this sense, the intention, as evidenced by the words of the will, is all important. Bear in mind, however, that this inten- tion is very different from the presumed intention which has been so frequently referred to as forming the groimdwork of the doctrine of election. The latter is the presumed intention of the testator that the legatee, whose own property has been devised away, shall elect. The intention now under consideration is merely the intention of the testator, as apparent on the face of the will, to deal with any particular property. Here the rule is, that if the testator's expressions admit of being restricted to property belonging to him- self, *they will not be applied to property over which he has no disposing power. Two very apt illustrations of the application and non-application of this general rule are afforded by the two cases of Dummer v. Pitcher (a) and Shuttleworth V. Greaves (6). In the first the testator's will ran thus : " I bequeath " the rents of my leasehold houses and the interest of " aU my funded property or estate." The testator had in fact no funded property at the date of his will, but there was funded property standing (a) 2 Mylne & Keen, 262. (5) 4 Mylne & Craig, 35. 334 SUPPLEMENTAKY LECTURES. in the joint names of himself and of his wife. After his death the wife claimed by right 'of survivorship the funded property standing in the names of her husband and herself, and therefore, as she took benefits under the will, it was contended that she ought to elect to give up either those benefits or the funded property. Lord Brougham (affirming the judgment of the late Vice -Chancellor of England) held, that, although the testator had no funded property at the date of his will, his words might well be understood as applying to funded property at the date of his death, and that therefore he was not to be regarded as intending to dispose of the funded property standing ia the joint names of himself and his wife, and consequently that no case of election arose. On the other hand, in the second case referred to, Shuttleworth v. Greaves, where the testator said, " I " bequeath all my shares in the Nottingham Canal " Navigation," the words used were held to refer spe- cifically to shares actually in existence at the date of the wUl, and the testator having no such shares of his own, but having shares standing in the joint names of himself and his wife, it was held the words of bequest raised a case of election as against the vdfe. To the same general rule may be referred the class of cases establishing that where a testator is entitled to property, subject however to a charge or incumbrance, and he devises it, distinctly describing it, and giving at the same time other property to the incumbrancer, no case of election is raised. The testator is viewed as devising only the property subject to the charge. ELECTION. 335 So, again, where a testator devises land out of which his widow is dowable, and dies, haying bequeathed to her benefits by his wUl, the rule is clearly settled that the widow is not bound to elect unless you can discover on' the face of the will an iatention to deal with the property in such a manner as would be inconsistent with her dower being set out to her by metes and bounds. What circumstances are or are not tantamount to such an iaconsisteney is often a question of considerable difficulty. A power of sale or a trust for sale has gene- rally been treated as not inconsistent. The trustees, it is considered, may well dispose of the testator's interest in the property subject only to the widow's right of dower. On the other hand, a general power of leasing or of management affecting the whole of the lands is almost necessarily inconsistent with the notion of the widow's personally enjoying her one- third, and therefore, where a power of this kind is con- ferred by the testator, a case of election wUl be gene- rally raised. The mass of reported decisions in reference to the obligation of the widow to elect is, however, such that it would be hopeless to attempt even a cursory survey. You may form some notion of its magnitude when I inform you that on the argument before the Lords Justices in one of the most recent cases (a) no fewer than thirty-three cases were cited. Again, the same general pervading principle, that to (a) Parker o. Sowerby, 4 De Gex, Macn. & Gor. 321. For a more recent decision on the qnestion, see Thompson v. Burra, L. B. 16 Bq. 592. 336 SUPPLEMENTARY LECTURES. raise a case of election the intention of the testator to dispose of what is not his own must he perfectly clear, may be traced in the class of cases deciding that where the testator has a partial interest in property, as, for instance, a remainder ia fee (a), and he disposes of the property by name, he is to be regarded as intend- ing to dispose only of his partial interest and not of the whole fee simple. Of com'se, however, the whole tenor of the will is to be carefully considered, and if it appear, as the result of such consideration, that the testator did in fact intend to deal with the whole fee, then the will may well suffice to raise a case of election as against any person interested in the property, and taking a benefit under the will. You will find a very instructive instance of a case of election being thus raised in the recent case of Wintour v. Clifton (b). Let me now direct your attention to a cluster of classes of cases all difiering in one main particular from the cases of election hitherto discussed. I refer to the instances in which a question of election is raised, not by reason of a testator having assumed to dispose of property not his own, but by reason of his having attempted to dispose of some por- tion of his own property by an instrument ineffectual for that purpose. (a) See Kancliffe v. Parkyns, 6 Dow. 149. It seems now settled, that where a testator entitled to an undivided share of property devises it in terms importing a gift of the entirety, a, case of election is raised against another part-owner taking a benefit under the wUl ; Padbury v. Clarke, 2 Macn. fc Gtor. 298 ; Fitzsimons v. Fitzsimons, 28 Beavau, 417. (6) 21 Beavan, 447 ; afiirmed on appeal, 8 De Gex, Macn. & Gor. 641 ; and see also Usticke v. Peters, 4 Kay & Johnson, 437. ELECTION. 337 Many of these questions are becoming daily of rarer occurrence owing to recent alterations ia the law, but they are still of considerable practical importance : — 1. And first, under the law as existing previously to Lord Langdale's Act (a), a testator occasionally made a win sufficiently executed to pass his personal estate but insufficiently so to pass real estate. A question then arose whether an heir to whom a legacy had been bequeathed by the will might take his legacy, and also real estate which, being ineffectually devised by the will, had descended to him as heir. It was held, that he might. The ground taken seems to have been that, the will being ineffectual as to real estate, the devises of real estate therein contained must be treated as having been blotted out. This result appears to have been viewed by eminent judges as far from satisfactory. The chief objection lay in the circumstance that it was clearly established that a testator might, by an unattested will, bequeath personal estate, and annex to this bequest an express condition that the legatee should not take unless he gave up real estate to some one else. Thus the tes- tator might say, " I bequeath lOOOZ. to A " (A being his heir at law), " provided he makes over Whiteacre to B, and if not, I give the lOOOZ. to B " ; and in this case A, the heir, could claim the lOOOZ. only upon giving up Whiteacre (&). It was therefore argued that, in a case where a testator merely bequeathed lOOOL to (a) 1 Vict. 0, 26. (I) See Boughton v. Boughton, 2 Vesey senior, 12, a less fayouratle case for Election, as the decision merely rested on a general clause that any one disputing the will should forfeit all claim. z 338 SUPPLEMENTARY LECTURES. his heir A, without, as in the case last supposed, annexing any express condition, and Whiteacre to B, the whole wiU might weU be read for the purpose of annexing to the gift of lOOOL, a tacit condition, similar to the express one which would have been of undoubted validity. It is difficult to resist the force of this argument. One might perhaps not have been sur- prised had the Court decided that an express condition of the kind mentioned was altogether invalid as a mere scheme to enable the testator substantially to devise the land by an unattested wiU, but it is difficult to understand how the Courts, after upholding an express condition of the sort, should have hesitated to apply the doctrine of election. Lord Eldon in a leading case (a), makes the following observations on the subject : — " The next consideration is, whether, if real estate, " this is not a case of election against the heir. If I " was at liberty to read the codicil as an instrument '■ capable of disposing of real estate, there could be no ' ' doubt his real meaning was to give the whole property " by these two last instruments. I have looked at my " own note of Carey v. Askew, and Mr. Eomilly's " account of it is very correct. "****** Lord Kenyon " said, the distinction was settled, and was not to " be unsettled, that if a pecuniary legacy was be- " queathed by an unattested will, under an express " condition to give up a real estate by that unattested *' will attempted to be disposed of, such a condition {a) Sheddon v. Goodrich, 8 Vesey, 481 ; see page 496. ELECTION. 339 " being expressed in the body of the will, it was '" a case of election; as lie could not take the legacy ' ' without complying with the express condition. But " Lord Kenyon also took it to be settled, as Lord " Hardwicke had adjudged, that, if there was nothing ' ' in the will but a mere devise of real estate, the will ■ ' was not capable of being read as to that part ; and " unless, according to an express condition, the legacy ■' was given so that the testator said expressly, the " legatee should not take unless that condition was " complied with, it was not a case of election. The " reason of that distinction, if it was res Integra, is " questionable." 2. I pass on to a class of decisions which affords an additional testimony to the unsoundness of the principle under which the heir of freehold property was exempted from obUgation to elect. I mean those respecting copyholds. You may remember that, previously to the Act 55 Geo. III. c. 192 (commonly referred to as Mr. Preston's Act), devised copyholds could only pass where they had been previously surrendered to the use of the owner's will. Hence, where a testator professed to devise unsurrendered copyhold property, which therefore for want of a surrender descended to the heir, a question arose whether the copyhold heir could claim both a legacy under the will, and also the copyhold property. It might have been supposed that the will being inoperative altogether as to copyholds, the customary heir would have stood in the same position as the heir of freehold property, professed to z 2 340 SUPPLEMENTARY LECTUEES. be devised by an unattested will. It was held, however, contrary to the analogy suggested by the decisions in regard to the wills of freehold property, that the heir was put to his election (a). 3. I turn now to a third class of cases; those in which a testator owning Scotch property makes a will professing to devise that property, but inoperative according to Scotch law, and by the same will gives benefits to the Scotch heir. In this case is the latter bound to elect ? This was the point for decision in the case of Broclie v. Barry (b), where the testator devised to trustees all his freehold, leasehold, copy- hold, and other estates, whatever and wheresoever situate, in England, Scotland, and elsewhere, upon, certain trusts. The vsdll not possessing the solemnities required by the law of Scotland for passing real estate locally situated there, the question was, whether the Scotch heirs, who took interests under the will, could be put to their election. The introductory observa- tions of Sir W. Grant, point out so happily the difficulty of reconciling with sound principles the decisions upon the cases in reference to freeholds and copyholds just adverted to, that I cannot forbear reading them : — "If it were now necessary to discuss the principles " upon which the doctrine of election depends, it " might be difficult to reconcile to those principles, or " to each other, some of the decisions, which have (a) See Highway v. Banner, 1 Brown's CO. 584 ; Eumbold v. Bumbold, 3 Vesey, 65. (6) 2 Vesey & Beames, 127. ELECTION. 341 " taken place on this subject. I do not understand, " why a will, though not executed so as to pass real " estate should not be read for the purpose of discover- " ing in it an implied condition concerning real estate, " annexed to a gift of personal property ; as it is " admitted it must be read, when such a condition is " expressly annexed to such gift. For if by a sound " construction such condition is rightly inferred from " the whole instrument, the effect seems to be the same, " as if it were expressed in words. And then, if it be " rightly decided, that a will defectively executed is not "to be read against the freehold heir, I have been " sometimes inclined to doubt, whether any will ought " to be read against the copyhold heir ; a will, how- " ever executed, being as inoperative for the conveyance " of copyhold estate, as a will defectively executed is " for the conveyance of freehold estate." Further on in his judgment. Sir W. Grant, after discussiag the question which arose whether the case was to be governed by the English or the Scotch law, held that if the English law was to govern his decision, the case must be treated as analogous to that of a devise of unsurrendered copyholds (and the result upon the Scotch law being the same for other grounds) that the heir must elect (a). Before parting altogether with the decisions on Copyholds and Scotch property, I may observe, that (a) And recently, V.-C. Stuart, in the case of a will insufficiently executed to pass estates in the island of St. Kitt's, held that the colonial heir must he regarded as standing in the same position as (not an heir of an English freehold but) an heir of unsurrendered copyholds or of Scotch estates ; Dewar v. Maitland, L. B. 2 Eq. 834. -342 SUPPLEMENTABY LECTURES. 3'ou will find amongst them cases affording an additional instance of the application of the general canon already noticed — viz., that the intention to dispone by the will of the property which is claimed adversely to the will must clearly appear. I mean the cases deciding that a general devise by the testator of all his lands, what- soever and wheresoever, does not afford a sufficient indication of intention to pass copyholds or Scotch property to raise a case of election. You must for that purpose find in the will an express reference either to copyhold or to Scotch property, as the case may be (a). The best cases which you can consult as shovnngthe inefficacy of a general devise for the purpose of raising a case of election are, as to copyholds, Judd v. Pratt (b) ; and as to Scotch property, Maxwell v. Maxwell (c). The principle of the decisions is perhaps best expressed in the following words of Sir John Leach in the case of Johnson v. Telford (d), in which case, as in Maxwell v. Maxwell, there was no express reference to Scotch property. Sir J. Leach says: — " In the case " of Brodie v. Barry the Scotch estate was mentioned " in the will and expressly intended by the testator " to pass thereby. In this will no notice whatever is " taken of the Scotch estate, and the question is, (a) Thus, in Brodie v. BaiTy, in which the doctrine of election was held to apply, the devise was of all the estates, " freehold, leasehold, copyhold, " and other estates whatever, and wheresoever situate, in England Scot- " land, and elsewhere." (6) 13 Vesey, 168 ; 15 Tesey, 390.J (c) 16 Beavam, 106 ; 2 De Gex, Macn. & Gor. 705. (d) 1 RusseU & Mylne, 2i8. ELECTION. 343 " whether it is clearly to be collected from the general " words used, that the testator meant to pass his " Scotch estate to the uses of his will. Where a " testator uses only general words it is to be intended " he means those general words to be applied to such " property as icill in its nature pass by his will.'' The same doctrine is more elaborately expoimded by Knight Bruce, L.J., in giving judgment ia the appeal in Maxwell v. Maxwell (a), in which case the devise was by a will, inoperative as to Scotch heritable property, of aU the testator's "real and personal estate "whatsoever and wheresoever" (b). His Lordship there expresses himself as foUows : — " It is said on the part of the other children, and " denied on his part, that he must either give up the " Scotch property for the purposes of the will, or take " nothing under the will ; the claim of the younger " children being founded on the generality, the univer- " saHty, of the language of gift contained in it. Nor " can he gainsay that the Scotch property was part of " the testator's estate, or that the will purports to give " aU his real and personal estate whatsoever and where- " soever. I apprehend, however, that according to the " principles or rules of construction which the English (a) 2 De Qex, Macn. & Gor. 705 ; see p. 713. (6) In Orrell v. Orrell, L. E. 6 Ch. App. 302, where the words used by the testator were : " All the residue of my real estate situate in any part "of the United Kingdom, or elsewhere ; " and where the testator left estates in England and Scotland, but none in Wales or Ireland, it was held by the Lords Justices (James & Melliah), on appeal from the Duchy Court of Lancaster, that a case of election was sufficiently raised against the Scotch heir. The case seems almost on the dividing line between Brodie r. Barry and Maxwell v. Maxwell. 344 SUPPLEMENTAEY LECTURES. ' law applies, — if not to all instruments, at least to ' testamentary instruments liable to interpretation, as ' the win in question is, — accordiug to its principles ' and rules, the generality, the mere universahty, of ' a gift of property, is not sufficient to demonstrate or ' create a ground of iuference that the giver meant it ' to extend to property incapable, though his own, of ' being given by the particular act. If he has speci- ' ficaUy mentioned property not capable of being so ' given, the case is not the same ; as here, if the ' testator had mentioned Scotland in terms, or had ' not had any other real estate than real estate in ' Scotland, there might have been ground for putting ' the heir to his election." There is, however, one class of cases in which, under the law as applicable to wills executed previously to Lord Langdale's Act, the doctrine of election is called into operation by mere general words. I mean where a testator, professing to do what the then state of the law did not enable him to do, affected to devise all the lands of which he might be seised at the date of his death. In this case the heir, if he took any benefit under the will, was bound' by the doctrine of election to give effect to the attempted disposition of any after- acquired real estate. You may refer on this point to the recent case of Schroder v. Schroder, before Vice- Chancellor Wood (a), affirmed by Lord-Chancellor Cranworth on appeal (6). {a) 1 Kay, 571. (6) 18 Jurist, 987 ; 24 Law Journal Rep. (N.S.) Chanc. 613. And see Hance v. Tru-wliitt, 2 Johnson & Hemming, 216. ELECTION. 345 Of course you will bear in mind that now, under Lord Langdale's Act (a), a will is to be construed, with reference to the property therein comprised, to speak and take effect as if executed at the date of the testator's death, and there can therefore no longer be any room for the operation of this species of election, except as to wills executed previously to that Act. (III.) My time permits but a few short observations on the third main division of my lecture, viz., the application of the doctrine of election to persons under disability. I will take separately the cases of married women and of infants. Upon this question, as indeed upon almost all others bearing upon the doctrine of election, Mr. Swanston's notes are still our most valuable repertory ; and, in this instance, the particular note applicable is also appended to the report of Gretton v. Haivard (b). As to Married Women. — You will perceive on read- ing the note referred to, that a somewhat fluctuating practice has prevailed in cases where married women were bound to elect. More commonly it seems to have been assumed that the married woman was competent to elect, though occasionally a reference has been directed to inquire in which way it would be most for the benefit of the feme covert to elect. On the other hand. Vice -Chancellor Wood, in the recent case of Barrow v. Barrow (c), lays down in (a) 1 Vict. cap. 26, sect. 24. (i) See 1 Swanston, p. 413. (c) 4 Kay & Johnson, 409 ; see page 419. 346 SUPPLEMENTAET LECTURES. the strongest terms that a married woman is com- petent to elect. The Vice-Chancellor thus expresses himself : — " A married woman can elect so as to affect her " interest in real property without a deed acknowledged " for that purpose. And where she has not already " elected, the Court can order her to signify her " election. It was said, that a married woman could " not elect so as to biud her real estate ; but Ardesoife "v. Bennet shows the contrary; and that case was " followed by others referred to in Mr. Swanston's " note to Gretton v. Haward, which establish that she " can elect so as to affect her interest in real property ; " and that, where she has once so elected, though " without deed acknowledged, the Court can order a " conveyance accordingly; the ground of such order " being, that no married woman shall avail herself " of fraud. Having elected, she is bound, and the " transaction wiU be enforced against the heir." It may, I think, therefore be assumed that prima facie a married woman is competent to elect, and that when she is wilUng to elect for herself the Court will allow her to do so, unless iudeed her husband has an interest in the question and differs in opinion from the wife, in which case considerable difficulty exists (a). (a) See Wall v. Wall, 15 Simons, 613, 521. In Griggs v. Gibson, L. E. 1 Eq. 685, where an annuity -was given by will to a married woman on the express condition of her relinquishing « previous provision made for her by settlement, which condition she was unable to comply with to the full extent in consequence of her husband having acquired a life interest in the settled real estate, and of such life interest having passed to his assignee in insolvency, the Court allowed the married woman to elect ELECTION. 347 In one particular instance, however, it is distinctly established that a married woman cannot elect, viz., where after marriage a fortune is settled upon her in lieu of dower (a). But this rests upon the particular words of the 9th section of the Statute of Uses (jb) which expressly enacts that a jointure made to the wife after marriage may be refused by her after the death of her husband. As regards Infants, the case seems to stand some- what differently. The incompetency of infants to elect, and the right of the Court to elect for them, has been almost uniformly assumed by the practice of the Court, though in one instance, Rushout v. Rushout (c), a decree appears to have been made that a female infant should make her election at eighteen. Occasionally, when it has been practicable to do so, without prejudice to the rights of other parties, the Court has deferred the question of election until the infant should be of age. This was done ia the leading case oi Streatfield v. Streatfield (d). As regards lunatics, these clearly cannot elect, and the correct course must, I conceive, be a reference to inquire what is most for their benefit. to take the annuity and to relinquish what she could relinquish, on the terms of compensation heing made out of her annuity in respect of the unrelinquished life estate. (a) See Frank v. Frank, 3 Mylne & Craig, 171. And there can he no election by a married woman, eren with the sanction of the Court, to give up property to which a restraint on anticipation is annexed ; Robinson v Wheelwright, 21 Beavan, 214 ; 6 De Gex, Macn. & Gor. 535. (6) 27 Hen. VHI. c. 10. (c) 6 Brown's Parliamentary Cases, 89. {d) Cases tempore Talbot, p. 176. 348 SUPPLEMENTAEY LECTURES. It is hardly necessary for me to say that, though now concluding, I leafve stiU a considerable number of important questions connected with this doctrine wholly untouched: amongst others, the right of the party before makiag election to be fully in possession of the facts necessary to enable bim to form an accurate estimation of his position (a) ; the question, what acts will be held to amount to an election (b) ; the applica- tion of the doctrine to the cases arising under the execution of powers (c); and the question whether evidence dehors the will may be resorted to for the purpose of raising a case of election (d). You must endeavour not merely to fill in the outlines which I have traced, but to make the requisite additions to the foregoing imperfect sketch. (a) See Dillon v. Parker, 1 Swanston, 359. Douglas v. Douglas, L. B. 12 Eq. 617, at pages 637—8. (J>) See WortMngton v. Wiginton, 20 Beavan, 67. (c) Sugden on Powers, chap. 11, sect. v. (8tli edit.) (d) Ibidem, p. 587 (8tli edit.) ; Wigram on Wills, 39. Satisfaction and Perfoemance. The doctrine of satisfaction may be said to arise generally under one of the two following states of circumstances : — First. — When a father, or person filling the place of a parent, makes a double provision for a child, or person standing towards him in a fiHal relation. Secondly. — When a debtor confers, by wiU or other- wise, a pecuniary benefit on his creditor. Taking these main divisions in the order stated, and assuming in the first instance, for the sake of simplicity, the case to be one of father and child, the first point to be noticed is, that these double provisions for chil- dren may occur in the two following ways : — (a.) Either the father first gives to his child by will a legacy, and then on some other occasion — more commonly on the marriage of that child — makes a pecuniary provision for it ; or, ((3.) The father, on the occasion of marriage or on some other occasion, agrees to make a provision for a child, and subsequently makes a bequest to that child by will. In each of these cases the general rule of the Coui-t 350 SUPPLEMENTARY LECTUEES. is, that the benefits given to the child by the second instrument, settlement or will, as the case may be, are to be viewed as a satisfaction (a) of the benefits conferred by the first, whether will or settlement. The Court presumes, that what the father does in each case is done in fulfilment of his moral obligation to make a provision for his child; and it considers that he is to be presumed as not intending a double provision, and that the child, therefore, ought not to claim under both instruments. I shall say but very few words with reference to the question how far this doctrine, now firmly estabhshed, can be regarded as resting on sound priuciple. The difficulties respecting it lie pretty much on the surface. Where the father first gives a benefit by wiU, and then another by settlement, why should he not in the settlement have said that the provision thereby made was in satisfaction of that contained in his previous will ? Similarly, where the agreement for a provision comes first by settlement, why should not the subsequent will have expressed the intention of satisfaction ? The doctrine, in truth, assumes inadvertence and oversight on the part of the father, since the argument that the father may be presumed to have known the law, and to have reUed upon it, however permissible, now that the doctrine exists de facto, is one that could not for a moment be tolerated when deciding whether the doctrine should or should not be established. Passing by the question of principle with these short {a) See pa^es 368, 369 infra, and note {a), p. 369. SATISFACTION. 351 remarks, I proceed now to consider more particularly the first class of cases in which the doctrine of satis- faction is called iato play, — viz., that of double pro- ^'isions for children. Bear in mind, that these cases of double provisions occur commonly, as already pointed out, in two' different ways — i. e., (a.) First, a will, and then a settlement. (^.) First, a settlement, and then a will. Most of the observations I have to make will apply equally to either of these cases. Where there is any marked distinction, I shall endeavour to point it out. 1. — The first general observation is, that in the case of double pro^dsions the doctrine of satisfaction applies only where the parental relation, or its equivalent, exists. If a person give a legacy to a mere stranger, and then make a settlement on that stranger; or first agree to make a settlement on a stranger, and then bequeath a legacy to him ; the stranger is entitled to claim tmder both instruments. The foundation of the doctrine in these cases is the parental relation, or its equivalent. Let me read to you what Lord Eldon says on this point in a case often quoted (a) : — " Without going through all the cases that were " cited, and those referred to in them, having compared " the case in Atkyns with manuscript notes of that case, " and looked into some other cases, one in Ambler, " and some earher, I may state as the unquestionable (a) Ex parte Pje, 18 Tesey, 160. 352 StrPPLEMENTAET LECTURES. " doctrine of the Court, that where a parent gives a " legacy to a child, not stating the purpose with refer- " ence to which he gives it, the Court understands " him as giving a portion; and by a sort of artificial " rule, in the application of which legitimate children " have been very harshly treated, upon an artificial " notion that the father is paying a debt of nature, and " a sort of feeling upon what is called a leaning against " double portions, if the father afterwards advances a " portion on the marriage of that child, though of " less amount, it is a satisfaction of the whole, or in " part." You note, of course. Lord Eldon's words, "in the " application of which legitimate children have been " very harshly treated." This refers to 1;he fact that an iQegitimate child is in the eye of the law a stranger, and that unless other circumstances are found than the bare relation of parentage " by natwre," the illegitimate child is at liberty to claim a double provision. Lord Eldon, iu his judgment in the case just re- ferred to, expresses himself further on this point, as follows : — " I recollect that Lord Thurlow in that case, though " the decision did not turn upon it, remarked, that as " the law will not acknowledge the relation of a natui-al " child, the doctrine of this Court, on whatever prin- " ciple founded, is, that if a portion is given to a child " by will, or a gift, so constituted as to acknowledge " the legal relation, and afterwards an advancement " is made on marriage, that is prima facie an ademp- SATISFACTION. 353 " tion of the whole, or pj-o tanto ; but if the legacy is " given to a person standing in the relation of a natural " ehUd to the testator, and he afterwards gave that " child a sum of money on marriage, the law does not " admit the conclusion prima facie that the testator at " the time of making the will recognised that relation : " the natural child, therefore, is in so much better a " situation, that in his case the advancement is not " prima facie an ademption, as it is in the case of a " legitimate child ; the effect of which is, that the " presumption is to be formed consistently with the " notion that the testator has less affection for his " legitimate child than even for a stranger, as Lord " Thurlow used to express it." In the case actually before Lord Eldon, the testator had in fact described the child in question, though in truth his own illegitimate child, as the child of another person, but that circumstance, though material in reference to a point presently to be mentioned, in no way detracts from the authority of the decision, as showing that, in the absence of other circumstances tending to a different conclusion, illegitimate children are to be viewed as mere strangers. 2. — The next general proposition to which I would invite your attention is this, that although the doctrine of satisfaction does not, as a general rule, apply where the beneficiaiy is a stranger, it may and does apply where the donor has placed himself " in loco parentis," as the phrase is, towards the beneficiary. It was in reference to this point that the mode in which the testator had, in the case before Lord Eldon, described 354 SUPPLEMENTAEY LECTURES. his own illegitimate child, became material, as showing that he had not assumed the parental character. But the point demands a closer examkiation. What is putting oue's-self " in loco parentis," towards a per- son for the purposes of this doctrine ? Is it necessary that the beneficiary should have been adopted, so to speak, by the donor ; should have been received into his household ? Must a quasi parental relation have been established in all respects 9 For answers to these questions, I will carry you to the case of Poivys v. Mansfield (a), admittedly the lead- ing authority on the point, what is putting one's-self " in loco parentis " ? There the question arose, whether Sir John Bar- rington, who had by his will given 10,000Z. to one of his nieces, and had afterwards settled 10,000Z. upon her marriage, stood "in hco parentis" to the niece, so as to give rise to the application of the doctrine of satis- faction. The nieee was one of the daughters of Sir John's brother, FitzwUliam, and the general relations subsisting between the uncles and nieces are thus stated in the report of the case upon the hearing before the Vice-ChanceUor of England (b). " The witnesses deposed, as to the first point, as " follows : — That Sir Fitzwilliam, in compliance with " the wishes of Sir John, resided near Sir John in the " Isle of Wight, and maintained a more expensive " establishment than his income (which did not exceed " 400L a year) would allow of ; that Sir John and his " brother lived on the most affectionate terms with (a) 3 Mylne & Craig, 359. {b) 6 SiinoBS, 5U. SATISFACTION. 355 " each other ; that, for several years, Sir John gave " Sir FitzwUliam 1,000L a-year ; that he took the " greatest interest in his nieces, behaved to them as a " father, and always acted towards them as the kindest ' ' of parents, not showing more partiality to one than " to another; that he frequently gave them pocket- "" money and made them other presents, and occa- " sionalLy advanced money to defray the expense of " their clothiag and education, that he allowed them " to use his horses and carriages, and had them fre- " quently to dine with him, and that one or other of " them was almost always staying in his house ; that " he was consulted as to the appointment of their " masters and governesses, and as to the marriages of " such of them as were married, and that on the " plaintifif's marriage the terms of the settlement were " negotiated between the plaintifif and Sir John, and " their respective solicitors, without any interference " on the part of Sir Fitzwilliam ; that Sir John, who " gave the instructions for the settlement on the 20th of " April, 1817, proposed that the 10,000Z. should be " settled on all the children of the marriage, but after- " wards, on the suggestion of the plaintiff, it was " agreed that the 10,000Z. should be settled on the " younger children only, as the eldest son would be " entitled to a considerable estate on his father's " side." Upon these facts the Vice-Chancellor of England decided that Sir John had not placed himself " in loco parentis," laying down as a general principle, " that no " person can be held to stand in loco parentis to a A A 2 356 SUPPLEMENTAEY LECTUEES. " child whose father is living, and who resides with " and is maintained by the father according to his (the " father's) means." On appeal Lord Cottenham, in reversing this deci- sion, thus expressed himself : — " The authorities leave in some obscurity the ques- " tion as to what is to be considered as meant by the " expression, universally adopted, of one in loco pa- " rentis. LordEldon, however, in Ex parte Pye, has " given to it a definition which I readily adopt, not " only because it proceeds from his high authority, " but, because it seems to me to embrace aU that is " necessary to work out and carry into effect the object " and meaning of the rule. Lord Eldon says, it is " a person meaning to put himself in loco parentis; " in the situation of the person described as the " lawful father of the chUd; but this definition must, " I conceive, be considered as applicable to those " parental offices and duties to which the subject in " question has reference — namely, to the office and " duty of the parent to make provision for the child. " The offices and duties of a parent are infinitely " various, some having no connection whatever with " making a provision for a child ; and it would be " most illogical, from the mere exercise of any of such " offices or duties by one not the father, to infer an " intention in such person to assume also the duty of " providing for the child. The relative situation of '•' the friend and of the father may make this unneces- " sary, and the other benefits most essential. " Sir William Grant's definition is, 'A person as- SATISFACTION. 357 " ' suming the parental character, or discharging pa- " ' rental duties,' which may seem not to differ much " from Lord Eldon's, but it wants that which, to my " mind, constitutes the principal value of Lord Eldon's " definition — namely, the referring to the intention, " rather than to the act of the party. The Vice- " Chancellor says, it must be a person who has so " acted towards the child as that he has thereby " imposed upon himself a moral obligation to provide ' ' for it ; and that the designation will not hold, where ' ' the child has a father with whom it resides, and by " whom it is maintained. This seems to infer that " the locus parentis assumed by the stranger must " have reference to the pecuniary wants of the child; " and that Lord Eldon's definition is to be so under- " stood; and so far I agree with it ; but I think the " other circumstances required are not necessary to " work out the principle of, the rule, or to effectuate its " object. The rule, both as applied to a father and " to one in loco parentis, is founded upon the presumed " intention. A father is supposed to intend to do " what he is in duty bound to do, namely, to provide " for his child according to his means. So, one who " has assumed that part of the office of a father, is " supposed to intend to do what he has assumed to ■' himself the office of doing. If the assumption of the " character be established, ihe same inference and " presumption must follow. The having so acted " towards a child as to raise a moral obhgation to " provide for it, affords a strong inference in favour of " the fact of the assumption of the character ; and the 358 SUPPLEMENTAET LECTURES. " child having a father with whom it resides, and by " whom it is maintained, affords some inference against " it; but neither are conclusive." Ultimately Lord Cottenham, adopting Lord Eldon's definition, was of opinion, upon the evidence, that Sir John Barrington did mean to put himself " in " loco parentis" to the children, so far as related to their futwe provision. 3. — The next general proposition which I have to present is the following :— That it is not necessary, in order that the doctrine of satisfaction should apply, that the sums given by the two instruments be equal in amount, nor that they be payable at the same time, nor even that the limitations for the benefit of the issue of the child provided for be precisely the same. Indeed it must be regarded as rendered somewhat doubtful by the later decisions, whether it is .even necessary that the two subject matters should be " ejusdem generis" {a). The case of Lord Durham v. Wharton (b) affords a good illustration of the proposition above laid down, that difference in the limitations wiU not prevent the operation of the doctrine. There a father, by wiU, bequeathed 10,000L to trustees, one half to be paid at the end of three years, and the other half at the end of (a) As to this, see Holmes v. Holmes, 1 Brown's Chancery Cases, 563, where a legacy of &001. to a son was held not satisfied by a subsequent gift of a moiety of stock-in-trade of the value of 1500i. ; and Dawson v. Dawson, L. R. i Bq. 504, where a share of residue was held partially adeemed by an annual aUowanoe. See, also, Eavenscroft v. Jones, 32 Beayan, 669 ; Watson V. Watson, 33 Beavan, 574. ' (6) 5 Simons, 297 ; 3 Mylne & Keen,' 472 ; 3 Clarke & Finnelly, 146. SATISFACTION. 359 six years from his death, with interest in the mean- while, and declared the trusts to be for his daughter for life, and after her decease, in trust for her children as she should appoint by deed or will, and in default of appointment, for all her children equally ; and subsequently, on the marriage of the daughter, agreed to give her 15,000Z. to be paid to the intended hus- band, he securing bj^ his settlement, pin-money and a jointure for his wife, and portions for the younger children of the marriage : and it was held, that the 10,000?. was satisfied by the sum advanced by the father. Observe how strong this decision was. By the will the daughter took a life interest : by the settlement a jointure. By the will, all the children of the daughter took ; by the settlement, portions were provided only for the younger children of the particular marriage. Supposing the daughter to marry a second time, and to have children, the effect of the decision of the House of Lords would be to deprive the children of the second mai-riage of the benefits given them hj the will, upon the mere legal presumption. The princijjle must, I suppose, be taken te be that in the gift to all the daughter's children, the children were made legatees merely by virtue of their relationship to their mother, and that a gift to a daughter for life, and after- wards to her children, is to be viewed as constituting in the aggregate a portion for the daughter. The proposition just laid down that differences in the mode of limitation will not prevent the application of the doctrine, applies similarly where the order of 360 SUPPLEMENTAEY LECTUBES. events is, first, a settlement ; secondly, a ■will. Tliis was decided in the case of Lady Edward Thynne v. Earl and Countess of Glengall (a). There a father having, upon the marriage of his daughter, agreed to give her a portion of 100,000Z., transferred one-third thereof in stock to the trustees of the marriage settlement, and gave them his bond for transfer of the remainder in like stock upon his death ; the latter stock to be held by them in trust for the daughter's separate use for life, and after her death for the children of the marriage, as the husband and she should jointly appoint. The father afterwards, by his will, gave to two of the trustees, a moiety of the residue of his personal estate, in trust for the daughter's separate use for life, remainder for her children generally, as she should by deed or wUl appoint. And it was held, that the moiety of the residue given by the will was a satisfaction of the sum of stock secured by the bond, notwithstanding the differences of the trusts; and it being found to be for the benefit of the daughter and her children, if any she should have, to take imder the wiU, she was held bound to elect so to take. I must obseiTe, however, that the difficulty of apply- ing the doctrine where the settlement precedes the will, and the trusts are dissimilar, is obviously much greater than where the will comes first (&). Where the (a) 2 House of Lords Cases, 131. (b) See the observations on this point in the recent case of Chichester v. CoTentry, L. E,. 2 H, L. App. 71 ; and those of Lord Hatherley (when V.-C. Wood) in his subsequent decision of Dawson v. Dawson, L, K. 4 Eq. 504, at pp. 512-514. SATISFACTION. 361 settlement is first in date, the class entitled under that settlement are purchasers, and cannot be deprived of their rights upon any presumed intention of the testa- tor. At the utmost they can only be put to their election (a). In the case now open before me, this part of the question was relieved from difficulty, be- cause the residue imder the wiU was so large, that, upon a reference to the Master, he reported it would be for the benefit of the children of the marriage, to take under the will in preference to the settlement. Had he reported otherwise, it is not easy to see how the children of Lady Edward Thynne of a second marriage could legitimately have been deprived of what was intended for them by the will, nor how the equities would have been adjusted (b). I may add, that this case of Thynne v. Qlengall, is to be noted as having first estabUshed that it is not even necessary that the benefit conferred by the second instrument (in that case it was a moiety of the residue of the testator's estate) should be of any distinct or {a) See tlie observations of Lord Romilly on this point, Chichester v. Coventry, L. R. 2 H. L. App. 71, p. 90. (6) In Chichester v. Coventry, on the original hearing hefore Lord Hatherley, then T.-C. Wood (see Coventry v. Chichester, 2 Hemming & MiUer, 149, at p. 159, reported on the appeal to the Lords Justices, 2 De Gex, Jones & Smith, 336), the Vice-Chancellor appears to have been struck by the circumstance that the doctrine of election was applied by the House of Lords in derogation of the previously acquired rights of Lord Edward Thynne under the settlement which made him a joint donee with his wife of the power of appointment amongst children. That the previously acquired rights of the wife and issue under a marriage settlement cannot be satisfied by a subsequent testamentary gift by the covenantor to the husband (his son) absolutely is established by McCarogher v, Whieldon, L. K. 3 Eq. 236. 362 SUPPLEMENTAET LECTUEES. definite sum. I must warn you, however, that, so far as I am aware, it has never yet been distiactly decided that where a father first by will gives a share of resi- due, and then settles a definite sum, the doctrine of satisfaction applies (a). 4. — The next question is, as to the operation of the doctrine where the sum given by the second instru- ment is less than that given by the first. Does the smaller sum operate as a complete satisfaction of the larger ? A moment's consideration will show you that this question can only arise when the order of events is, first will, and then settlement; since where the settlement precedes, the right is a right conferred by positive contract, and no subsequent will or voluntary gift can diminish that right. It was, however, long considered that in cases where a father first made a provision for a child by will, and subseqently, on the occasion of that child's marriage, made a smaller pro- vision by deed, the later provision wholly satisfied the earlier. Lord Eldon's views of the law on the sub- ject, together with his doubts as to the soundness of the result, are thus characteristically expressed in the case of Ex parte Pye, so frequently referred to already. He says, in speaking of the doctrine : — " And in some cases it has gone a length, consistent " with the principle, but showing the fallacy of much " of the reasoning, that the portion, though much less (a) It was so decided shortly after the delivery of the Lectures, in Montefiore o. Guedalla, 1 De Grex, Fisher, & Jones, 93, in connection with wliich case the student may with advantage read the more recent one of Meinertzhagen v. Walters, L. R. 7 Ch. App. 670. SATISFACTION. 363 " than the legacy, has been held a satisfaction in some " instances ; upon this ground, that the father, owing " what is called a debt of nature, is the judge of that " proyision by which he means to satisfy it; and " though at the time of makiag the will he thought " he could not discharge that debt with less than " 10,000Z., yet by a change of his circumstances " and of his sentiments upon that moral obligation, " it may be satisfied by the advance of a portion of " 5,000?." Observe those remarkable words, " consistent with " the principle, but showing the fallacy of much of " the reasoniug." There is, I think, no doubt that if the assumed groundwork of the doctrine had been maintained in its iategrity, it would have been impos- sible to escape the conclusion that the smaller was to satisfy the larger. Lord Cottenham, however, in his first Chancellorship, revolting from the logical conse- quences of the doctrine, decided, in the well known case of Pym v. Lockyer (a), contrary to the generally received opinion of the profession, that advancements subsequent to a will were to be satisfactions pro tanto only. The judgment in which Lord Cottenham thus broke through the trammels of the doctrine, or rather, I should say, of the assumed grotmdwork of the doc- trine, is so interesting that I cannot forbear quoting from it at some length. Lord Cottenham says : — " When, upon the first argument of this case, I had " come to the conclusion that the testator had placed (a) 5 Mylne & Craig, 29. 364 SUPPLEMENTAEY LECTURES. liimself in loco 'parentis, and that the effect of the portions upon the provisions by the will was, there- fore, to be the same as if the testator had been the father of the children, I was startled at the con- sequences of such a decision, if the rule generally received in the profession, and laid down in all the text-books of authority, and apparently founded upon the highest authority, was to regulate the divi- sion of the property; the rule to which I refer being, that a portion advanced hy a father to a child will he a complete ademption of a legacy, though less than the testamentary portion. I could not but feel that, in the case before me, and in every other, the effect of the rule would be to defeat the intention of the parent. A father who makes his vyiU dividing his property amongst his children, must be supposed to have decided what, under the then existing circum- stances ought to be the portion of each child, not with reference to the wants of each, but attributing to each the share of the whole which, with reference to the wants of all, each ought to possess. If sub- sequently, upon the marriage of any one of them, it become necessary or expedient to advance a portion for such child, what reason is there for assuming that the apportionment between all ought, therefore, to be disturbed ? . . . The supplying the wants of one child for an advancement is not permitted to lessen or destroy the provisions made for the others, by giving both provisions to the child advanced ; but the supposed rule that the larger legacy is to be adeemed by the smaller provision, appears to me not SATISFACTION. 365 " to be foimded on good sense, and not to be adapted " to the ordinary transactions of mankind, and to be " subversive of the obvious intention of the parent. " Gan it be assumed, as a proposition so general as "to be the foundation of a rule of property, in the " absence of any expressed intention, that the mar- " riage of one child and the advancing a portion to " such child, furnishes ground for the father's altering " the mode of distributing his property amongst his " children, by taking from the portion previously des- " tinedfor that child, and, to the same extent, adding " to the provision for the others ? Is it not, on the " contrary, the usual course and practice that the " father, upon a child's marriage, parts with the con- " trol over as little as possible, preferring to reserve to " himself the power of disposing of the residue of the " portion destined for such child, as its future circum- " stances and situation may require ? In doing so, " the father is not influenced only by the natural pre- " ference of bounty to obligation, but adopts a course " which he may well be supposed to think most bene- " ficial for his children. Where, then, is the ground " of the presumption, that he intended, by advancing " part of what he had destined as the portion of that " child, to deprive that child of the remainder ? " The argument in favour of the proposition appears " to me to be founded upon technical reasoning as to " the term 'portion,' without due consideration of the " sense in which that term is used. The giving a por- " tion to a child is said to be a moral debt, but of the " amount of which the parent is the only judge ; and. 366 SUPPLEMENTAEY LECTUEES. " although the parent has, by his will, adjudged the " amount of that moral debt to be a certain sum, he " is supposed, by the settlement, to have departed " from that judgment, and to have substituted .the " amount settled : and this only because the one pro- " vision and the other are considered as a portion. " This, however, assumes the portion settled to be " intended as a substitution of the portion given by " the will; and such intention, if proved, would re- " move all doubt ; but the question is, whether such " intention is to be presumed, in the absence of all " proof. Is it not more reasonable to suppose that " the intention as to the amount of the portion " remains the same, and that the sum settled is only " an advance of part of what the wiU declares to have " been the intended amount of the whole ?" After further observations Lord Cottenham con- cluded by stating that it appeared to him that all reasoning and aU analogy were against the supposed rule ; and after examining the authorities, he arrived at the conclusion that there was not sufficient authority to support the supposed rule, and that, as it was opposed to principle, it was his duty to decline follow- ing it, notwithstanding its general previous reception in the legal profession. 5. — Next, as to resorting to " extrinsic evidence." It is to be borne in mind that the rule against double portions is a presumption of law, and like other pre- sumptions of law may be rebutted by extrinsic evidence; i. e., evidence not contained in the written instruments themselves. SATISFACTION. 367 This is £f general rule of evidence, which applies in many other similar cases (a). You cannot, it is well known, go into evidence to add to, vary, or explain a written instrument. But in the cases we are now considering, the instruments say nothing as to satisfaction. The satisfaction is pre- sumed by the law, and if it can be shown by evidence dehors the wi-itten instrument that the presumption is incorrect, it wiH not be made. It is therefore com- petent to the party claiming double portions to show that, although the presumption be against him, the donor, in fact, intended him to have double portions ; and flowing from this right of the party claiming doubly to go into evidence to rebut the presimiption of law, there arises a right on the part of those who oppose his double claim also to go into counter-evidence to support the presumption. Bear in mind, however, that there is no original right on the part of the person seeking to dispute the double provision to establish, by independent evidence, that a double provision was not intended. Unless the instruments themselves do, in the first instance, raise a presumption against double provisions, the claim to double provision succeeds as of course. The right of the pai-ty disputing double provisions is merely a right to meet, by counter-evidence, evidence adduced by the other side to rebut the presumption. It is necessary to warn you that the observations of Sir John Leach (a) e.g., cases as to double legacies, as to the executors taking residue beneficiaUy (where the 11 Geo. IV. & 1 WiU. IV. cap. 40, does not apply), &C' 368 SUPPLEMENTARY LECTURES. on this point in Weall v. Rice (a), cannot safely be treated as law (6). Extrinsic, or rather parol, evidence may, however, occasionally form the whole groundwork of the appli- cation of the doctrine. Thus the transaction upon which the alleged satisfaction depends may be alto- gether unsupported by written evidence. Such was the case in Kirk v. Eddowes (c). There a father be- queathed 3000L for the separate use of his daughter for life, with ulterior trusts for her children. Sub- sequently he gave the daughter and her husband a promissory note for 500Z., and Vice- Chancellor Wigram held that it was competent to the parties who alleged that this transaction operated as a satisfaction to go into evidence respecting all the circumstances of the transaction, including the declarations made by the testator at the time of handing over the note. I may observe, in passing, that you will find in Vice-ChanceUor Wigram's judgment in this case some admirable observations, weU calculated to remove the doubts which must at some time or other cross the mind of almost every inquiring student in reference to this doctrine of satisfaction. Consider the facts in Kirh V. Eddowes. A testator by his will bequeaths a legacy. He then hands over a promissory note. How can the wiU be thus informally revoked ? The answer is, it is not revoked at aU. The operation is {a) 2 Russell & Mylne, 263. (6) See Hall v. HiU, 1 Drury & WaiTen, 94, pp. 129-138 ; Palmer v. Newell, 20 Beayan, 32 ; Taylor on Evidence, 1036 (4th edit.), 1056 (5th edit.). (c) 3 Hare, 509. SAXISFACTION. 369 analogous to that of a common case of ademption, and in truth is commonly described by the same word "ademption" (a). You know the general operation of ademption. A testator says, " I bequeath my black horse Dobbin." Dobbin dies. The testator dies. The legacy fails, not because it is revoked, but because there is no subject- matter to satisfy it. It is, to use the technical term, " adeemed," or " taken away," for want of subject- matter to answer it. The operation of satisfaction is, if I rightly understand the theory, of a converse kind. The wUl gives a legacy as a portion. A portion is subsequently provided by act " inter vivos." The will remains intact, but the legatee is not paid his portion, because he has already had it. The legacy is adeemed by satisfaction, just as in the other case it is adeemed for want of a subject-matter to operate upon. Hence the Vice-Chancellor's words in Kirk v. Eddowes: — " Ademption of the legacy, and not revocation of the " will, is the consequence for which the defendant " contends. The defendant does not say the will is " revoked; he says the legatee has received his legacy " by anticipation." (II.) I pass now to the second main division of the cases relating to satisfaction, viz., those of satisfaction of a debt. And here at the outset let- me warn you that while (a) See the otservations of Lord Romilly in Chichester ». CoTentry, L. K. 2 H. L. App. 71, at pp. 90, 91, in which his Lordship treats the expression " satisfaction " as properly applicable only where the settlement comes first and the will subsequently. B B 370 SUPPLEMENTARY LECTURES. using the word " debt," I mean to exclude from its signification any obligation wHch, though in the nature of a debt, yet falls also ■within the description of a pro- vision for a child. Thus in every one case of double portions just treated of where the order of events is first settlement — and then will — ^the settlement is in fact a "debt;" for I need hardly say that where a father actually transfers by way of settlement for a child, say 10,OOOL stock, and then by subsequent wiH leaves (say) 10,0O0L or 15,000Z. to the same chUd, no case of satisfaction can arise. The gift by settlement has been made outright, and that by will comes as an additional gift. It is only where the settlement exists ia the form of liability or debt, that a gift by subsequent will can be deemed a satisfaction. Such was the case of Thynne v. Earl of Glengall, just now referred to. That very case affords, indeed, one of the best general statements that I can refer you to respecting the peculiarities of the doctrine of satis- faction of debts by legacies as distinguished from that of satisfaction of portions — a statement which in. its very terms assumes that a settlement agreed to be made by a father, though in one sense a debt (a), stands on (a) According to tlie recent decision in Chiciester v. Coventry, L. K. 2 H. L. App. 71, the doctrine of satisfaction does not so completely alter the legal aspect of a covenant by -way of settlement on a cliild as to prevent a subsequent direction in a will for payment of debts from applying to the covenant. In that case there was first a covenant for payment of 10, 000 J. to the trustees of a daughter's settlement, and subsequently a will direct- ing payment of debts, and giving a moiety of the residue upon trusts for the daughter and her issue, and the direction to pay debts was relied on as " material circumstance for excluding the operation of the doctrine of satisfaction. Upon this decision Lord Hatherley has observed : — "I ,think SATISFACTION. 371 an entirely different footing as respects the doctrine of satisfaction. Lord Cottenham, moving the judgment of the House, expressed himself thus : — " Before I consider the authorities as applicable to " the facts of this case I think it expedient to throw " out of consideration all the cases which have been " cited, in which questions have arisen as to legacies ' ' being or not being held to be in satisfaction of debt ; ' ' for, however similar the two cases may at first sight " appear to be, the rules of equity as applicable to " each are absolutely opposed the one to the other. " Equity leans against legacies being taken in satis- " faction of debt, but leans in favour of a provision by " will being in satisfaction of a portion by contract, " feeling the great improbability of a parent intending " a double portion for one child, to the prejudice " generally, as in the present case, of other children. " In the case of debt, therefore, small circumstances " of difference between the debt and the legacy are " held to negative any presumption of satisfaction; " \vhereas in the case of portions, small circumstances " are disregarded. So in the case of debt, a smaller " legacy is not held to be a satisfaction of part of a " larger debt; but in the case of portions it may be " satisfaction 'pro tanto. It has been decided that in " the case of a debt, a gift of the whole or part of the " after that case it will be exceedingly difHcult to hold that any subse- ' ' quent provision by wUl, after a covenant or engagement by bond in a " previoiia instrument, will be a satisfaction of the debt contained in the ' ' previous instrument, because there are so very few wills in which there ' ' is not a direction to pay debts, that the case of course would seldom " happen." (See Dawson v. Dawson, L. R. i Eq. 613.) B B 2 372 SUPPLEMENTARY LECTURES. " residue cannot he considered as satisfaction, because "it is said that, the amount being uncertain, it may " prove to be less than the debt." This statement embodies to a great extent the lead- ing peculiarities of the doctrine of satisfaction of debts by legacies. (a.) — The leaning is against satisfaction instead of being in favour of it, as in the case of portions. (p.) — Small circumstances of difference are suf&cient to lepel the presumption: as where the legacy is of less amount than the debt (a fortiori of course if the thing be not " ejusdem generis," as land or specific chattels), or even where the amount is merely un- certain, as the gift of a residue, in both of which cases satisfaction takes place in regard to portions {a). In reference to these cases of satisfaction of debt by a legacy, Sir Thomas Clarke in delivering judgment in Matthews v. Matthews (b), mentions a remarkable instance of the inclination of the Court to lay hold of any small circumstance for the purpose of evading the (a) So, althougli where a portion is given to a child hy will, and a suh- sequeut provision is made for the same child by an instrument creating a debt, a direction in the will to pay debts and legacies is not sufficient to rebut the ordinary presumption of satisfaction (see Trimmer v. Bayne, 7 Yesey, 508 ; Dawson v. Dawson, L. R. 4 Eq. 504), and although not- withstanding the observations of Lord Hatherley in Dawson u. Dawson, (see note [a) at p. 370, supra), it may be doubted whether a simple direction to pay debts will, standing alone, be sufficient to prevent the pre- sumption in the case of a settlement on a child by way of covenant followed by a will containing the direction, it must be considered settled that in cases not falling within the doctrines applicable to double portions a direction to pay debts will per se he sufficient to exclude satisfaction (see Cole V. "Willard, 25 Beavan, 668 ; PincMn v. Simms, 30 Beavan, 119). (6) 2 Yesey, senior, 636. SATISFACTION. 873 application of the doctrine. He says : — " I remember " a case before the Lord Chancellor where an old lady " indebted to a servant for wages, by will gave ten " times as much as she owed or was likely to owe ; " yet because made payable in a month after her own " death, so that the servant might not outlive the " month, although great odds the other way, the Court •' laid hold of that." This illustration shows that the legacy to be a satis- faction must be certainly payable. Any contingency, however remote, will prevent satisfaction. Time does not permit me to dwell longer on the various circumstances which have been held sufficient to repel the presumption of satisfaction of a debt. I deem it of more importance to attempt to convey a clear notion of the position of this branch of my sub- ject in reference to questions strictly of ordinary debts arising between parent and child. I have already pointed out that a debt in the shape of a covenant to settle falls within the head of law applicable to double portions. On the other hand , where a father owes a child a mere debt, as where father and son are in partnership, and a debt is due from the former to the latter on the result of partner- ship transactions, a legacy to the son, who is a creditor, must be governed by the same principles in respect to satisfaction, as if the son were a perfect stranger in blood. So where a father owed his daughter 200Z. as execu- tor of the will of a third person, and then gave her 500L by his own will to be paid to her at the age of 21 years 374 SUPPLEMENTARY LECTUEES. if she should arrive to that age but not otherwise, it was held she might claim both the 2001. owing by her father, and the provision made by the father's own wiU {a). On the other hand, it has been decided that, where the father, being a debtor to the child in his lifetime, makes an advancement to the child upon marriage, or some other occasion, that advancement will presumably be a satisfaction. And the case is the same, even though the money be advanced on the occasion of a daughter's marriage, in consideration of a settlement made on the part of the intended husband ; and even though the intended husband be ignorant of the daughter's rights, as creditor against her father. I must confess I find it impossible to reconcile these decisions with sound principle. In order to justify them it seems necessary to disregard the circumstance that full knowledge on the part of the husband might have led to entirely different arrangements. A man about to marry a lady of fuU age, entitled to, say, 10,000Z. owing to her by her father, that father being at the same time wilUng to give an additional 5000Z., stands in a very different position in respect to negotia- tion from one who supposes the father to be settling 15,000L of his own free bounty. I should have thought the grounds for not implying satisfaction infinitely stronger ia a case of this kind, than in one of a gift by will like that just referred to. However, if you want to see the decisions on this point ably reviewed, (a) Tolson v. Collins, 4 Tesey, 482 ; and see Stooken o. Stocken, 4 Simons, 152. PEEFOEMANCE. 375 let me recommend you to turn to Plunkett v. Lewis (a), where, in the judgment of Sir James Wigram, you will find aU that can be said. Meanwhile it is sufiicient for me to impress upon you, as being decided law, that while a legacy by will does not (except when it would do so as between strangers), an advancement by the parent by settlement does, operate as a satisfaction of a simple debt owing by the parent to the child. I pass now to the second subject mentioned in the prospectus of my lecture for this evening, viz., "Performance." Cases of performance are divided by a very narrow line from those of satisfaction. The ordinary mode of distinguishing satisfaction from performance is by saying that satisfaction implies the substitution or gift of something different from the thing agreed to be given, but equivalent to it in the eye of the law, while in cases of performance the thing agreed to be done is in truth wholly or in part performed. The two principal classes of cases in respect to performance are commonly illustrated by Wilcocks v. Wilcochs (b), Blandy v. Widmore (c). Wilcocks V. Wilcocks was the case of a covenant by a man on marriage, to purchase lands of 200L a year, and settle them for the jointure of his wife, and to the (a) 3 Hare, 316. (b) 2 Temon, S58. (c) 1 Peere Williams, 324 ; see also this and the last preceding case, White & Tudor's Leading Cases, vol. ii. pp. 376, 378 (3rd edit.). 376 SUPPLEMENTAEY LECTURES. first and other sons of the marriage in tail. He pur- chased lands of that value, and took a conveyance to himself in fee, making no settlement. At his death, his heir, who was also entitled under the settlement as first son, claimed the purchased lands as heir, and also to have the covenant performed by laying out an adequate portion of the personalty in the purchase of land. It was held, that the lands descended were to be deemed a satisfaction of the covenant. In Blandy v. Widmore, a man before marriage covenanted to leave his intended wife 620L, He died intestate, and the wife's share under the Statute of Distributions exceeded 620?. This was held a per- formance. The two classes of cases are then these : — (1.) Covenant to purchase and settle land, and a purchase made without an express settlement. (2.) Covenant to leave property, and the receipt of a share by the covenantee under an iatestacy. In reference to the first class of cases, let me say, that the acts done commonly approach much less nearly to "performance" than in the second. Indeed, in Wilcocks v. Wilcocks, the word "performance" does not even occur. The phrase used by the Judge in deciding the case, was satisfaction. This class of decisions is perhaps better represented by Lechmere V. Lechmere, which was decided by Lord Talbot on appeal from Sir Joseph Jekyll (a). The facts were as follows : Lord Lechmere, upon his marriage with Lady Elizabeth Howard, daughter (a) Cases temp. Talbot, p. 80. PERFORMANCE. 377 of the Earl of Carlisle, and in consideration of 6000Z. portion, covenanted to lay out, within one year after the marriage, the said sum of 6000Z., and likewise the farther sum of 24,000L, amounting in the whole to 3O,O00Z., in the purchase of freehold lands in possession; which were to be settled upon Lord Lechmere himself for hfe, remainder to trustees to preserve contingent remainders, remainder to trustees for five hundred years, for raising portions for the daughters of the marriage, remainder to Lord Lechmere in fee. Lord Lechmere further covenanted until the 30,000/. should be laid out to pay interest for the same after the rate of 51. per cent., unto the persons entitled to the rents and profits of the lands when purchased. Lord Lechmere, after his marriage, purchased several estates in fee simple in possession, but which were never settled according to the covenant, as also several terms and reversions, and subsequently died intestate and without issue, leaving a considerable real estate to descend upon the plaintiff, his nephew and heir-at-law. His widow. Lady Lechmere, took out administration, and the nephew brought his biU against her for an account of Lord Lechmere's personal estate, and to have this covenant carried into execution. The defendant, Lady Lechmere, contended that the lands which descended to the plaintiff must be treated as a satisfaction of the covenant. Sir Joseph Jekyll held them to be no satisfaction (a). An appeal being brought from that decision. Lord Talbot, in his judgment upon this point, expressed (a) Lechmere v. Earl of Carlisle, 3 Peere Williams, pp. 224, 227. 378 SUPPLEMBNTAET LECTUEES. himself thus (a) : — " The cases upon satisfaction are ' generally between debtor and creditor ; aad the ' heir is no creditor, but only stands in his ancestor's ' place. One rule of satisfaction is, that it depends ' upon the intent of the party ; and that which way ' soever the intent is, that way it must be taken. But ' this is to be understood with some restrictions ; as, ' that the thing intended for a satisfaction be of the ' same kind, or a greater thing in satisfaction of a ' lesser : For, if otherwise, this Com't will compel a ' man to be just before he is generous ; and so will ' decree both. But these questions are no way material ' in this case, which turns entirely upon my Lord ' Lechmere's intent at the time of these purchases ' made. Those made before the covenant can never ' have been designed to go in performance of the sub- ' sequent covenant, his intent being clear, that the ' whole sum of 30,000Z. should be laid out from the ' time of the covenant. Then there are terms, with ' covenants to purchase, the fee, but terms are not ' descendible to the heir, and so no satisfaction. The ' like of reversions, especially seeing the lives did not ' fall in during the Lord Lechmere's own life. But as ' to the purchases of lands in fee simple in possession; ' it is to be considered that there was no obligation ' upon the Lord Lechmere to lay out the whole sum at ' one time. Now here are lands in possession, lands of ' inheritance pm'chased-; which, though not purchased ' with the privity of trustees, yet it was natural for the ' Lord Lechmere to suppose that the trustees would (a) Cases temp. Talbot, 80, at p. 92. PERFORMANCE. 379 " not dissent from those purchases, being entirely " reasonable; the design of inserting trustees being ' ' not to prevent proper but improper purchases : And " though they were not purchased within the year, yet ■' nobody suffered by it; and so this circumstance can- " not vary the intent of a party in a Court of Equity. ' ' The intent was, that as soon as the whole was laid ' ' out, it should be settled together ; and not to make ■' half a score settlements. In the case of Wilcox and " Wilcox, 2 Vernon, 558, the covenant was not per- " fected; nothing done towards it strictly, but some " steps taken by the ancestor which seemed to be in- " tended that way : And it is as reasonable to suppose " these purchases to have been intended to satisfy this " covenant in the present case, as it was to suppose it " so in that." Accordingly, Lord Talbot varied the decree only as to the fee simple lands in possession purchased since the covenant. You will note with reference to this decision : first, that as to the lands purchased previous to the cove- nant, it was considered (and one might saj^ necessarily so) that they could not be regarded as purchased in pursuance of the covenant; and secondly, that the purchases of the reversions were considered as not made in performance of the covenant. In short, in these cases the turning point is, whether the fair implication from the facts be or be not that the lands were purchased in performance of the pre- vious engagement entered into. Here let me warn you that you may occasionally 380 SDPPLEMENTAET LECTUEES. find referred to amongst the cases relating to " per- formance " a class of decisions which relate to an entirely diiferent head of equity. I mean cases de- pending upon the principle that any party interested in a fund held upon trust, is entitled to follow that fund either into land or into any other subject-matter upon which it may, though wrongfully, have been laid out (a). Such was the case of Trench v. Harrison (6). There trustees of a settlement had power, with the consent of the husband and wife, to lay out the trust funds in the purchase of (amongst other lands) copyholds of inheritance. The husband obtained the fund and pur- chased copyholds for lives — a description of property not authorised by the settlement ; and it was suggested that on that groimd, as in Lechmere v. Lechmere, the copyholds did not belong to the trust, but the Vice- Chancellor of England held that whether the purchase was or was not authorised by the settlement, still as between the trustees and the husband the pro- perty was trust property. The case was in fact the common case of tracing trust money into land, the whole doctrine as to which you will find fully discussed in Lench v. Lench (c), decided by Sir WilUam Grant. These cases of following trust money into land have occasionally some slight points of contact with the cases of performance properly so called ; but in their leading features they are essentially different. Thus (a) See Taylor o. Plumer, 3 Maule &, Selwyn,' 562 ; and the cases collected in Lewin on Trusts, 645 note (c) (5tli edit.). (&) 17 Simons, 111. (c) 10 Veaey, 511. PERFORMANCE. 381 in the ordinary case of performance the claimant is told that his claim is in truth satisfied by some act done in performance of the prior obligation entered into ; while in the cases of following trust money the endeavour is to show, that even though the money be not clearly traceable into the land, the land must be presumed to have been purchased with the trust money for the purposes of the trust («). A few words are all that I can give to the cases represented by Blandy v. Widmore. That was in all strictness a case of actual performance. The husband covenanted to leave (it was not said by will), and he did leave. But the doctrine is not confined to cases so favour- able as that of Blandy v. Widmore. Thus it applies where the husband makes a will containing an at- tempted disposition of his property in contravention of his covenant, and where this attempted disposition failing, a share of the personal estate, by such failure, devolves on the wife (6). It does not, however, apply where the thing cove- nanted to be secured is an annuity (c). Neither does it apply where performance in the technical sense is no longer possible by reason of the covenant having been broken in the intestate's hfetime, for then the case becomes one of debt. Thus, suppose a covenant by an intended husband in a marriage settlement to pay a sum within two years (a) See liewin on Trusts, 581-587 (4th edit.) ; 645-649 (5th edit.). (b) (joldsmid ■!). Goldsmid, 1 Swanston, 211. (c) Couch V. Strattoil, i Vesey, 391. 382 SUPPLEMENTAEY LECTUEES. after marriage ; the husband lives for two years ; there- upon a debt arises, and nothing accruing to the wife by intestacy can possibly operate as a satisfaction. With this meagre reference to the class of cases represented by Blandy v. Widmore, I must conclude my Lecture. Conversion. Conversion (the subject of this and my next Lecture) has been defined to be " that change in " the nature of property by which, for certain pur- " poses, real estate is considered as personal, and " personal estate as real, and transmissible and de- " scendible as such." Perhaps, on the whole, the best general statement of the doctrine is that contained in the judgment of Sir Thomas SeweU in Fletcher v. Ashburner (a), who there says : — " Nothing is better established than this principle, " that money directed to be employed in the purchase " of land, and land directed to be sold and tm-ned " into money, are to be considered as that species " of property into which they are directed to be con- " verted, and this in whatever manner the direction " is given; whether by will, by way of contract, " marriage articles, settlement, or otherwise, and " whether the money is actually deposited or cove- " nanted to be paid, whether the land is actually con- " veyed or only agreed to be conveyed. The owner (a) 1 Brown's Chancery Cases, 499. 384 SUPPLEMENTARY LECTURES. " of the fund or the contracting parties, may make " land money, or money land." Sir Thomas Sewell, as you observe, makes the doc- trine rest upon the intention of the testator, settlor, or other author of the trust : and doubtless that is the true principle. You are not, however, to suppose that it is necessary to find upon the face of the instrument of trust an express declaration that, though the land be not pur- chased, the money shall go as land ; or, though the land be not sold, the land is to go as money. All that is requisite is an absolute expression of intention that the money shall be laid out on land, or that the land shall be sold and turned into money. When once this intention is sufficiently expressed, the accidental circumstance that the money has in fact not been laid out in land, or the land in fact not been sold and turned into money, can have no effect ; for here the maxim of Equity applies — " that what ought to be done, " shall be considered as done." Thus Sir Joseph JekyU, in a case often quoted (a), says :: — " The forbearance of the trustees m not doing " what it was their office to have done, shall in no sort " prejudice the cestuis que trust, since at that rate it " would be in the power of trustees, either by doing or " delaying to do their duty, to affect the right of other " persons, which can never be maintained ; wherefore " the rule in all such cases is, that what ought to have " been done, shall be taken as done, and a rule so " powerful it is, as to alter the very nature of things ; (a) Leeliniere v. Earl of Carlisle, 3 P. Wms. 215. CONVERSION. 385 " to make money land, and on the contrary to turn " land into money. Thus money articled to be laid " out in land shall be taken as land, and descend to " the heir ; and, on the other hand, land agreed to be " sold shall be considered as personal estate." And Lord Macclesfield (a), in considering a case where a sum of money had been devised to be laid out in the purchase of land, thus expresses himself: — ^^"If the " purchase had been made, it [meaning the land] must " have gone to the heir ; but if the trustee, by delaying " the purchase, may alter the right and give it to the " executors, this would be to make it the trustee's will, " and not th& will of the first testator, which would be " very imreasonable and inconvenient." The test, therefore, in these cases of conversion is not— Has the author of the trust expressly du-ected'the property to be treated as converted, whether de facto converted, or not ? — for in such a case there could be no doubt. Nei^er is the question to be answered — Has the property been in fact converted ? — for that is immaterial. But the true question is — Has the author of the trust absolutely directed the real estate to be turned into personal, or the personal estate to be turned into real ? Thus much for the general nature of the doctrine. In passing to a more particular consideration, some doubt crosses one's mind respecting the most con- venient arrangement of the subject. In practice cases of conversion commonly arise either — (a) Scudamore v. Scudamore, Precedents in Chancery, 543. 386 SUPPLEMENTAET LECTURES. First. — Under wills ; and, as respects these, either in reference to conversion of money into land, or land into money ; or. Secondly. — Under settlements, or other instruments inter vivos ; and, as respects these again, either in reference to conversion of money into land, or land into money. A consideration of the authorities in reference to what I may call this double twofold arrangement might be extremely instructive ; indeed, I shall myself adopt a similar classification in reference to one portion of my Lecture. But this arrangement, although well adapted to show accurately the differences practically arising in the application of the doctrine, according as the instrument is a will, or one inter vivos, or the con- version is one of land into money, or money into land, is hardly so suitable for exhibiting the broad general principles of the doctrine as that which I purpose adopting, and which is as follows : — 1st. — What words are sufficient to produce a con- version. 2ndly. — At what time conversion takes place. 3rdly. — The general effects of conversion. 4thly. — The results of a total or partial failure of the objects and purposes for which conversion has been directed. First. — ^What words will be sufficient to produce a conversion. Here the principle is clear. You must find in the instrument (be it will or settlement) a clear, imperative CONVERSION. 387 direction to convert — i.e., to lay out the money on land, or to sell the land for money. There must be no option on the part of the trustee : for if we have an option, how can he be under any obligation ? How can it be said that he ought to have laid out the money on land, or sold the land for money ? What room is there, in fact, for the appUcation of the maxim, that Equity considers that to have been done which ought to have been done ? I win cite to you two cases in illustration of what I have just said, one as applicable to conversion of money into land, the other of land into money, viz., Curliiij v. Alay (a) and Polley v. Seymour (b). The facts of the former of these cases, as shortly cited in a later one, were as follows : — " A. gives 500L to B. in trust that B. should lay out " the same upon a pm'chase of lands, or put the same " out on good securities, for the separate use of his " daughter H. (the plaintiff's then wife), her heirs, " executors, and administrators, and died in 1729. In " 1731, H., the daughter, died without issue before " the money was vested in a purchase ; the husband as " administrator brought a bill for the money against " the heir of H., and the money was decreed to the " administrator, for the wife not having signified any " intention of a preference, the Court would take it as " it is found ; if the wife had signified any intention, " it should have been observed, but it is not reasonable (a) Cited in Gruidot v. Guidot, 3 Atkyns, 255 ; and see Swann ii. Fon- nereau, 3 Vesey, 41. (&) 2 younge,& Collyer, Equity Exch. 708 ; and see Rich v. Whitfield, L. R. 2 Eq. 583. C 2 OOa SUPPLEMENTAET LECTURES. " now to give either her heir or administrator, or the " trustee, liberty to elect ; for Lord Talbot said, it was " originally personal estate, and yet remained so, and " nothing could be collected from the will as to what " was the testator's principal intention." In the case secondly referred to, a testatrix devised the residue of her real and personal estate to W. S., his heirs, executors, and admmistrators, according to the different natures and qualities thereof, upon the trusts following, that was to say, " upon trust to re- " tain and keep the same in the state it should be in " at the time of her decease as long as he should think " proper, or to sell and dispose of the whole, or such " part thereof as and when he or they should from time " to time think expedient," either by public auction or jjrivate contract, to any person or persons who should be wiUing to become the purchaser or purchasers ; and then upon trust to invest the money to be produced by such sale or sales, together with all ready monies of the testatrix, in his or their own name or names, and in that of two of the residuary legatees thereinafter named, in the public funds, or upon real or government securi- ties. The testatrix then directed that the said W. S., his heirs, executors, or administrators should stand possessed of and interested in all such the general residue of her real and personal estate, and from and after such sale, then of the stocks, funds, and securities whereon the same or any part thereof should have been invested, in trust, out of the rents, issues, and profits, interest, dividends, and proceeds thereof, to pay several life annuities ; and from and after full payment and CONVEESION. 389 satisfaction thereof, the testatrix directed that the said W. S., his heirs, executors, and administrators should stand possessed of all the said residue of her said real and personal estate and effects, and of the stocks, funds, and securities whereon the same or any part thereof should have been invested, and the rents, issues, and profits, interest, dividends, and produce thereof, in trust for five of the said annuitants (including the said W. S.), in equal shares and proportions, as tenants in common, and for their respective heirs, executors, administrators, and assigns, according to the different natures and qualities thereof. The testatrix died, a • suit was instituted for the administration of her estate, and the principal question for decision on further directions was, whether by the will of the testatrix the real estate was converted out and out. The point of the decision is contained in the following passage of the judgment of Mr. Baron Alderson : — " It seems to '■ me that here the testatrix has bequeathed her real " estate to the trustee with a discretion to sell or not ' ' to sell the whole or any part of it : and, consequently, " that, until he exercises that discretion, the property " remains in the state it was at the time of her " death." Here let me observe, that there are few doctrines of Equity more important to be borne in mind by every professional gentleman who sits down to pen either a will or a settlement than this doctrine of conversion. If he omit to do this, he runs great risk of leaving it doubtful on the face of the instrument, whether the subject-matter is to be treated as personal estate or 390 SUPPLEMENTAET LECTURES. real estate. Nor is this a point on which a mere passive recollection is sufficient. The draftsman, in order to avoid confusion, must have his attention actively directed to the doctrine. Take as an illus- tration a settlement. The main point in every well- drawn settlement is to impress distinctly on all the jproperty comprised in the same set of limitations or trusts a clearly defined character either of real or of personal estate, and this whoUy without regard to what the property itself is truly and in fact. Thus, suppose it is intended that the settlement shall be a money settlement — then if land constitute part of the subject-matter settled, the land is conveyed upon an absolute trust for sale, and the proceeds of sale are settled. So if the settlement be of land, with limita- tions applicable to landed property, and the subject- matter consist partly of personal estate, care is taken to impress that personal estate with the real estate limitations. Again, throughout the respective settlements the utmost paias are taken to preserve in the first case the character of personalty, in the latter the character of land. Thus in the ordiaary power contained in money settlements to invest in land, the very first trust of the land bought always is to resell, and the character of personal estate is thus carefuUy impressed upon the land purchased. Similarly the provisions in real estate settlements for temporary investment in the public funds, or on mortgage, are carefully so worded as to impress upon the temporary investment the c^imlity of land. In truth one of the distinctive CONVERSION. 391 features of a well-drawn settlement is a careful pre- servation to the property of one uniform quality, — i.e., always real estate, or always personal estate. Nothing is left uncertain, nothing left to the option of any party in this respect. But to return to the question under discussion, viz., "What words wiU eifect a conversion ? I said the trust or direction to convert must be imperative. There must be no option. This proposition should be qualified by the statement that where the trusts or limitations are of a description exclusively applicable to one species of property, this circumstance has been deemed sufficient to outweigh any semblance of option. The decision in Earlom v. Saunders {a) supports this proposition. In that case, WiUiam Powell by his wiU devised land to his wife for life, with remainders over, with remainder to W. and P. as tenants in common in fee. He directed his executrix to pay 400Z. to his trustees, to be laid out in the purchase of land, or on any other security or securities as his trustees 'should think proper and convenient ; and directed the lands and securities to be settled on the trustees in trust for his wife for life, and after to such uses, and under such provisions, conditions, and limitations as the land before devised. The intermediate limitations being at an end, and W. being dead, the estate came to P., an infant of the age of twenty, who made a will, and gave all his estate to the plaintiff; and afterwards died under age. The question was, whether the 400L which had not been laid out on land, could be con- (a) Ambler, 2«, 392 SUPPLEMENTAEY LECTUEES. sidered as money, in whicli case P.'s will being good, under the then existing law, as a wiU of personal estate, the plaintiff would have been entitled to it; and it was argued for the plaintiff, that the trustees had a discretion to invest on land or on securities ; but Lord Hardwicke, relying on the circumstance that the limitations were exclusively applicable to real estate, held, that the discretion to invest on securities must be confined to an intermediate invest- ment until purchase of lands, and that the 400Z. was real estate. Secondly. — As to the time from which conversion shall be deemed to take place. It is obvious that, in all cases of this kind, the terms of the instrument itself must be our guide. Thus, if there be a trust to sell upon the happening of a particular event which may or may not happen, clearly the conversion takes place only as from the time of the happening of that event, though of course the moment the event occurs the conversion takes place just as if there had been an absolute direction to s§ll at that time. The case of Ward v. Arch (a) well illustrates the principle. There a testator gave aU his estate and effects of what nature, kind, or quality soever, after payment of his debts, and funeral and testamentary expenses, to trustees, their heirs, executors, &c., in trust, in case there should not he svfficient to pay the annuity thereinafter given to his wife, to sell all his real and personal estate, and invest the proceeds in the {a) 15 Simons, 389. CONVERSION. 393 funds, and out of the dividends or the rents of his real estate, until the same should be sold, to pay his wife an annuity of 300Z. The testator left no residuary personal estate, and the rents of his real estate were not nearly sufficient to pay his wife's annuity, but the real estkte in fact remained unsold long after her death. The question was, whether the real estate was to be considered as absolutely converted into personalty. The Vice-ChanceUor of England held, that it was, expressing himself thus : " This case " must be decided in precisely the same way as it " would have been if a suit had been instituted, shortly " after the testator's death, for the administration of " his estate, and it appeared that the income of his " real and residuary personal estate was not sufficient " to pay the annuity. It is quite plaui from the words " of the will, that the trust for sale would have " arisen as soon as that fact was ascertained, and the " Court must have directed it to be carried into eflfect " immediately." So, in cases like that of Polley v. Seymour just referred to, where, up to a particular time, it is wholly in the discretion of a trustee whether the property shall or not be sold, the conversion takes place as from the time of sale. Subject, however, to the general principle that the terms of each particular instrument must be considered in reference to this, as indeed to every other question of construction arising upon them, the rule may be said to be, that in regard to wills, conversion takes place as from the death of the testator, and in regard 394 SUPPLEMENTAEY LECTURES. to deeds or other instruments inter vivos, as from the date of execution ; and this, although the author of the trust may, upon the face of the instrument, con- template the possibility of a postponement of the actual conversion of the property from considerations of convenience. Thus if a testator by his ■will devises his real estate to trustees upon trust with all convenient speed to sell and dispose of such estate, and then proceeds to dis- pose of the produce of sale, nothing can be clearer than that, notwithstanding the power (nay, the duty) of the trustees to postpone the sale until an advantageous opportunity of selUng shall occur ; yet, as between the heir and personal representative of any person taking an interest in the proceeds, there is a conversion out and out, as from the date of the death of th^ testator. As regards the time as from which, in the absence of special circumstances, conversion is to take place in the case of " a deed," I cannot do better than read to you the observations of Vice- Chancellor Wigram, in the case of Griffith v. Ricketts (a) : — " A deed differs from a wiU in this material respect : " the will speaks from the death, the deed from de- " livery. If, then, the author of the deed impresses " upon his real estate the character of personalty, that, " as between his 'real and personal representatives, " makes it personal and not real estate from the " delivery of the deed, and consequently at the time " of his death. The deed thus altering the actual " character of the property, is, so to speak, equivalent (a) 7 Hare, 311. CONVERSION. 395 ■" to a gift of the expectancy of the heir-at-law to the " personal estate of the author of the deed. The " principle is the same in the case of a deed as in " the case of a wUl; but the apphcation is different, " by reason that the deed converts the property in " the lifetime of the author of the deed, whereas, in " the case of a will, the conversion does not take place " until the death of the testator; and there is no " principle on which the Court, as between the real " and personal representatives (between whom there " is confessedly no equity) should not be governed " by the simple effect of the deed in deciding to which " of the two claimants the surplus belongs." This rule received 'a strong apphcation in the case of Clarke v, Franklin (a). There a settlement was executed of real estate by deed (not enrolled) to the use of the settlor for Ufe, with remainder (subject to a power of revocation which he never exercised) to the use of trustees and their heirs, upon trust to sell and pay certain sums of money to persons named, or to such of them as might be Kving at settlor's death, and to apply the residue to charitable purposes. Some of the persons named survived the settlor, so that the purposes for which conversion was directed did not fail altogether, but the deed was void so far as it directed the proceeds of land to be applied for charitable pur- poses; and the question was, whether, under these circumstances, the surplus belonged to the heir, or to the next of kin, of the settlor. Vice -Chancellor Wood, founding himself upon a previous decision of (a) 4 Kay & Johnson, 257. 396 SUPPLEMENTAHY LECTUEES. Lord Thurlow (a), held that, notwithstanding the trust for sale was not to arise until after the settlor's death, the property was impressed with the character of personalty immediately upon the execution of the deed, and that the proceeds, so far as they were directed to be applied to charitable purposes, resulted to the settlor as personalty. The Vice- Chancellor, in his judgment, after refer- ring to Lord Thurlow's decision, in which the case was one of conversion of land into personalty, con- tiaued thus : — " The doctrine of the converse case of personalty " directed by deed or will to be converted into land, " is fuUy discussed by Lord Eidon in Wheldale v. " Partridge (b), where, upon the special terms of the " instrument, it was held not to be one which upon " its execution clothed the property with real uses ; " but Lord Eldon said, that, but for those special " provisions, and if there had been nothing more in " the deed, the 'property would, immediately upon the " ' execution of the deed, have been impressed with " 'real qualities and , clothed with real uses, and the " ' money would have been land ; ' cleaxly recognising " the rule that conversion takes effect from the moment " of the execution of the deed; and the rights of the " parties, and the character in which the property is " taken by them, are to be determined according to " that conversion. " The principle of these authorities is, therefore, {a) Hewitt v. Wright, 1 Bro-wn's Chancery Cases, 86. (b) 8 Vesey, 227. CONVERSION. 897 clearly settled: and where, as here, real estate is " settled by deed upon trust to seU for certain speci- " fled purposes, and one of those purposes fails, there, " whether the trust for sale is to arise in the lifetime " of the settlor or not until after his decease, the " property to that extent results to the settlor as per- " sonalty from the moment the deed is executed." But while thus admitting the general doctrine that in the case of a deed conversion takes place as from the date of execution, we must be careful how we apply it to instruments, such as mortgage deeds, where the general intention of the author of the trust is not conversion, but merely the raising of money. Thus take the case of Wright v. Rose (a). There Joseph Wright, being seised in fee of a free- hold estate, borrowed SOOl. from James Rose, the defendant, and secured the repayment of it, with interest, by executing a mortgage deed of the estate, with a power of sale, and by the terms of the deed it was provided that the surplus monies to arise from the sale, in case the same should take place, should be paid to Wright, his executors or administrators. In 1822 Wright died intestate, and without ever having been married. All the interest due on the mortgage money had been duly paid by him up to the time of his death, but the principal remained unpaid. The interest that accrued due after his death having remained unpaid. Rose the mortgagee entered into possession, and afterwards sold the estate under the power of sale, for a sum which considerably exceeded (a) 2 Simons & Stuart, 323. 398 SUPPLEMENTAEY LECTURES. the mortgage money and interest. The question was whether the surplus purchase-monies were real or personal estate. The judgment of Sir John Leach was in the follow- ing words : — " If the estate had been sold by the_ mortgagee in " the lifetime of the mortgagor, then the surplus " monies would have been personal estate of the " mortgagor, and the plaintiffs would have been " entitled. But the estate being unsold at the death " of the mortgagor, the equity of redemption de- " scended to his heir, and he is now entitled to " the surplus produce." Here the point which created the difficulty was that the liltimate limitation of the proceeds was to the mortgagor, his executors and administrators. And it was contended that this was equivalent to an express conversion in the event of the power of sale being exercised. If that intent could have been collected, then certainly the circumstance that the power of sale was exercised after the death of the mortgagor ought, according to the cases just referred to, to have carried no weight ; but the true ground of decision, it is conceived, was the general nature of the transaction, viz., that it was a mortgage, and that it is no part or office of a mortgage to alter the order of devolution of property. To the same ground must be referred the decision of the late Vice-Chancellor Wigram in the case of Bourne v. Bourne {a). There B. being seised in fee (a) 2 Hare, 36. — See and distinguisli In re Underwood, 3 Kay & Johnson, 745. CONVEESION. 399 of I'eal estate, the same was, upon the occasion of an advance of money to him, conveyed to a trustee, in- trust to permit B. to receive the rents and profits untn the loan became payable, and upon payment of the priucipal and interest of the mortgage debt as therein mentioned, to reconvey the estate to B., his heirs and assigns, but if default should be made in payment, then that the trustee should enter into pos- session of the premises, and at his discretion sell the same, and pay over the residue or surplus (after the payment of the debt, interest, and costs) to B., his heirs, executors, administrators, or assigns. Default was made in payment, but no sale of the estate took place until after the death of B., who devised it to the plaintiff for Hfe, with remainder over in tail : It was held that there was no conversion, but that the surplus proceeds passed by the devise as real estate. Of the soundness and good sense of these decisions one can feel little doubt. At the same time I wish you to observe that in the latter case Vice-ChanceUor Wigram rather lays stress upon the circumstance that the niortgagee's trustee had merely a discretion to sell, which he did not exercise untU after the mortgagor's death, and that in consequence of this circumstance the proceeds belonged to the mortgagor's heir. It is difficult to reconcile this view with an extremely anomalous and unfortunate class of decisions which I am now about to bring to your notice — I mean those, of which the principal are, Lawes v. Bennett (a) and Townley v. Bedwell (6). (a) 1 Cox, 167 ; see also, 14 Vesey, 596. (i) 14 Vesey, 592. 400 SUPPLEMENTABT LECTUEES. The facts of the former case are concisely stated by Lord Eldon, in giving judgment in the latter. The material facts of Townley v. Bedivell were these : A lease had been executed by the testator in the cause to Townley for thirty-three years, with a proviso that, if Townley, his executors, administrators, or assigns, should be desirous to purchase the premises within six years, he, his executors, administrators, or assigns, should pay to the testator, his heh-s or assigns, 600L for the purchase, upon having a good title made to him, Townley, his executors, administrators, or assigns. The testator died before the expiration of six years from the date of the lease. After his death, and within that period Townley declared his option to pur- chase according to the proviso ; and it was held that the purchase-money belonged to the personal repre- sentative. The danger of these decisions is manifest. If an option of this kind can alter the entire quality of pro- perty after the lapse of two years, it may do so after a lapse of ten or fifteen ; and during the whole of that time the rights of the next of kin and of the heir-at- law may be left in an uncertain and precarious state, dependent in fact on the option of a third party. This in truth was what actually occurred in the recent case of Collingwood v. Row (a), in which, by an agreement dated 21st March, 1839, an option to pur- chase was conferred, atid it was held that this option, when exercised fourteen years afterwards, in 1853, operated to convert real estate into personalty. The (a) 3 Jurist (N.S.) 7S5. CONVERSION. 401 general dislike of owners of land to confer optional rights ranging over long periods, must no doubt render cases of this description rare ; hut it is diffi- cult to exaggerate the iuconvenience of the doctrine, and it is much to be regretted that the rule should not have been adopted of treating the property over which the option may extend as land subject to the option. You may, I think, take for granted that the doctrine of Lawes v. Bennett will receive no extension, it having been disapproved more or less by almost every judge tinder whose consideration it has come, even by those who have followed it ; but, ia principle, the distinction is extremely thin between cases of this class, and those where property is vested in a mortgagee, subject to a power of sale — that is to say, subject to an option — under which he has right to sell the property and con- vert it into money. Thirdly. — As to the effects of conversion. These have been generally stated to be, to make personal estate real, and real estate personal. Thus, take money to be laid out on land. (a.) It was, of course, descendible to the heir. (J3.) Again, when property of this description be- longed to a married woman, her husband was entitled to an estate by the curtesy out of it (a). (y.) Again, under the old law, land was not liable to simple contract debts ; and in the old cases dicta are to be found that money covenanted to be laid out in the purchase of land, stood on the same footing as (a) See Sweetapple v. Bindon, 2 Vernon, 636. 402 SUPPLEMENTARY LECTURES. land, and was not liable to simple contract debts (a). On tbe other hand, an interest of this kind was, in Equity, subject to a judgment debt, just in the same way as the land itself (6) . (8.) Again, before Lord Langdale's Act (the Wills Act), an infant under the age of twenty-one (how early may be matter of doubt, but certaiuly at seven-* teen years old) might make a wiU of personal estate. Well, when an infant was absolutely entitled to money liable to be laid out in the purchase of land, he could not by will dispose of it during his miaority. This was assumed in Earlom v. Saunders (c), just now referred to. (e.) So I apprehend (though I am not aware that the point has ever been distinctly decided) money liable to be laid out on the purchase of land could not, before the late Wills Act, have been devised by an unattested will. The will must, I conceive, have been executed with the formalities required by the Statute of Frauds. Certainly money of this kind would not pass by a will professing to deal only with personal estate [d). So as to land absolutely directed to be sold, it is, as between all persons claimiug under the author of the trust, to all intents and purposes, personal estate. (a) The operation of this rule, if understood as applying in all its breadth, -would be of the strongest kind. A man might die entitled in law to wool, cash, yet, because it was liable to be laid out in the purchase of land, his heir would, under the old law, take it free from any obligation to pay simple contract debts. (i) Frederick v. Aynscombe, 1 Atkyns, 392. (c) Ambler, 241. (d) Gillies v. Longlands, i De Gex & Smale, 372. CONVEESION. 403 It seems necessary to qualify, in the words just used, the statement of the operation of the doctrine of con- version, it having been held, in certain cases, that persons not claiming in any way under the author of the trust, cannot invoke its aid (a). Thus, where land has been conveyed upon trust for sale, and to pay debts, and stand possessed of the residue upon trust for the settlor as personal estate, and before sale the settlor has died, it has been held that probate duty is not payable upon the settlor's interest in the surplus proceeds of the unsold lands. The result of the trust for sale, it is considered, is merely to create an equity as between the real and personal representative, and the Crown has no right, for merely jBiseal purposes, to say that what is in fact real estate shall be deemed to be personalty (b). Fourthly. — I proceed now to the last head of my lecture, — viz., the results of a total or partial failure of the purposes for which the conversion is directed. In the consideration of this branch of the subject, it will be more convenient to consider separately each (a) Tbia qualification may now be regarded as unnecessary. Accordiug to the latest decisions (Attorney-General *. Brunning, 8 House of Lords Cases, 265 ; Forbes v. Steven, L. E. 10 Eq. 178) the anomalous exception commonly supposed to have been established by Matson v. Swift, 8 Beavan, 368, and Custance v. Bradshaw, 4 Hare, 315, does not exist. {b) Matson v. Swift, 8 Beavan, 368. So it was held, that the Crown could not claim by forfeiture a felon's share of proceeds of real estate, unless actually converted ; Thompson's Trusts, 22 Beavan, 506. But see the last previous note. And as respects forfeiture, the student should bear in mind that forfeitures for treason and felony have been recently abolished by the 33 & 34 Vict. cap. 23, which contains detailed provisions for the management and application of the property of convicted persons. D D 2 404 SUPPLEMENTARY LECTUEES. of the four classes of cases adverted to at the outset of my lecture, — i.e., 1st. — Cases arising under wills, and separately in respect of these — (a.) Cases of conversion of land into money ; and (13.) Cases of conversion of money into land. 2ndly. — Cases arising under settlements or instru- ments inter ivos, with a similar subdivision. 1. — (a.) And first, as regards wUls, and as to cases of conversion of land into money. Take a simple case. A testator devises all his real estate to trustees, upon trust to sell and divide the proceeds of sale equally between A. and B. What is the result when A. and B. both die in the testator's lifetime ? and what when one only of them (say A.) ? In the first case, you observe, the purposes for which the conversion was directed fail totally: A. and B. are both dead. The whole object of the conversicSn is at an end. In the second they fail partially only ; because B., one of the two legatees, has survived, and is entitled to have the land sold, and to receive a moiety of the proceeds. In each case there is a lapse. In the first case, the whole land is undisposed of by the win ; in the second, one moiety of the proceeds of sale is undisposed of. Under these circumstances, two principal questions arise, — ^viz.. First. — To what extent is the trust for conversion still in force ? Secondly. — Who is to benefit by the lapse — the heir or the personal representative ? CONVERSION. 405 Where both A. and B. are dead, both these ques- tions admit of a ready answer. For since both A. and B. are dead, the whole purpose and object of the testator in directing a conversion has failed. The con- version was directed simply with a view to the division of the proceeds, and there being no one to receive any share, the matter is in the same position as if no trust to sell had ever been inserted in the will, and the land descends to the heir. Of course you must understand me as putting a simple case of trust to sell and pay half of the proceeds to A., and the other half to B. If any other trust attached upon the proceeds, say a trust for payment of debts and legacies, and there were debts or legacies to be paid, then the case would no longer be one of total failure of the purposes for which the conversion was directed ; but it would fall within the same prin- ciple as the case now next to be considered, viz., where A. alone dies. Next, then, how does the matter stand when A. alone dies? Here the trust for conversion stiU subsists, for without its exercise, B., the survivor, cannot receive his moiety of proceeds : the other moiety there- fore is, by virtue of the will, a moiety of personal estate. To whom then shall this lapsed moiety, which by the doctrine of conversion is personal estate, belong ? To the heir, or to those entitled under the will to the personal estate ? This was the question in the great case of Ackroyd V, Smithson (a), in which, according to tradition. Lord (a) 1 Brown's Chancery Cases, 502. 406 SUPPLEMENTARY LECTURES. Eldon earned his earliest laurels, by establishing that the right, under these circumstances, was with the heir, and not with those entitled to the personalty. It seems, indeed, impossible to deny the validity of the heir's right. The testator has, it is true, directed the land to be sold, and it still must be sold, but that is for the purpose of giving B. his moiety of proceeds. But where on the face of the will can you discover any trace of intention to give the other moiety of proceeds to the next of kin ? The next of kin take the testator's personal estate by " act of law," but they can take his real estate, or the proceeds of his real estate, as legatees only, and by virtue of some intention to that effect on his part. It is, however, clear that the testator never meant to give them anything. The result therefore is, that, as between the heir and next of kin, the former will take A.'s moiety of proceeds. As between the heir-at-law and a residuary legatee the result may occasionally be different, as in cases where a testator shows an intention that the proceeds of sale shall, for all intents and purposes, be deemed part of his personal estate (a). Neglecting, however, any such special claim founded on the peculiar frame of any given will, the result may be thus summed up : — When the trust for conversion fails whoUy, the heir takes the land as real estate. When the trust for conversion fails partially, the heir takes the share of proceeds but as personal estate (a) See Lewin on Trusts, 121-123 (4th ed.), 128-130 (5th ed.). CONVERSION. 407 (i. e., it would go to his, the heir's, personal repre- sentative or next of kin). In Smith v. Claxton (a) you wiU find each of these cases very well illustrated. 1- — (/3.) Next, as regards the case of a wUl, and of money directed to be laid out in the purchase of land. Singularly enough, it was for a long time doubtful upon the authorities whether, in the case of a testator bequeathing a sum of money to be laid out m the pur- chase of land, to be settled upon trusts, which failed wholly or partially, the heir had not an equitable right to the lapsed interest ia the money so bequeathed. It was, in fact, reserved for Lord Cottenham to set this question definitively at rest by deciding that the analogy of the cases with regard to conversion of real estate into personal held perfectly, and that the money fund, on failure of the trusts respecting the real estate, went to the next of kin or residuary legatee. I allude to the case of Cogan v. Stevens (b), where a testator gave a sum of 30,000Z. to be laid out on land which was to be settled on various relatives in succession, with an ultimate trust for a charity. The money was never laid out, and all the valid trusts having failed or expired, and the trust for charity being invalid, the question arose who was entitled to the 30,000L ? and Lord Cottenham decided that it fell into the residue of the personal estate (c). (a) 4 Maddock, 484 ; and see Jessopp v. Watson, 1 Mylne & Keen, 665. (b) 5 Law Journal (N.S.), Chano. 17. (c) This decision was followed by Lord Hatherley (when V. -C. Wood) in Reynolds v. Godlee, Johnson, 536, see p. 582 ; which case also estab- lishes that where money is directed to be laid out in land to be held on 408 SUPPLEMENTAEY LECTURES. 2. — Let us now take the case of a total or partial failure, where the trust for conversion is created by settlement or other instrument " inter vivos," and adopt the same order as that pursued in regard to wiUs. 2. — (a.) And first in reference to a conversion of land into money. Suppose, for instance, a conveyance of real estate by deed upon trust to pay the rents and jorofits to the settlor during his life, and after his death to sell and paj'^ one moiety to A., if then living, and the other moiety to B., if then living. Now, how wiU the case stand if both A. and B. die in the settlor's lifetime ? And how will it stand if A. alone so die ? At first, I think, it might strike you that this is the same identical case as that first put with reference to a vrill, but it is only up to a certain point that it runs on aU fours. As regards the question of conversion the cases are exactly parallel. Where A. and B. both die, the trust for conversion fails altogether. .Where A. only dies, it stUl subsists, a sale being still requisite for the purpose of giving B. his moiety of proceeds. But as to the person who is to reap the benefit of the death of the cestuis que trust, there is a material distinction. Where both A, and B. die, and the trust for conversion is gone altogether, the heir wiU of course (as in the case of the will) take ; for the land, trusts which do not exhaust the whole interest, and in consequence the money devolTes on the next of kin of the author of the trust, the next of kin take the money as personal estate, and not, as a rigid application of the decisions in reference to conversion of land into money might seem to require, as realty. CONVERSION. 409 there being no trust to convert, still remains land. But where A. alone dies, the case is no longer similar to that arising under a will. There is now, as shown, a valid trust for conversion. What remains undisposed of by the deed is a moiety of the proceeds of sale. This is personal estate. When did it become so ? According to the rule given in the earlier part of the Lecture, the answer is, at the date of the execution of the deed of settlement, and not merely when the trust for sale arose. The settlor, therefore, in his lifetime, took immediately on A.'s death, by way of resulting trust, this moiety of personal estate, and it forms part of his general personal estate, and must devolve as such. This was the true point of the decision in Clarke v. Franklin (a) abeady discussed. There the convey- ance was by deed. The first trust was for the settlor for life ; next came a trust to sell, then a trust to pay certain small sums (which was a valid trust), and all the remaining trusts were for charity and invalid. The result was, that, immediately upon execution, the property was impressed with a valid trust for con- version, and, simultaneously, the settlor took under the deed, by way of resulting trust, and as personalty, so much of the proceeds of sale as was invaUdly given to charity. 2. — (/3.) The only remaining case is that of a con- version of money into land by settlement; and here too the analogy is perfect. Thus a man on his marriage covenants to pay lOOOL to trustees, to be (a) i Kay & Johnson, 257. 410 SUPPLEMENTARY LECTURES. laid out on land, to be settled to the use of himself for life, remainder to the use of his mfe for life, remainder to the children of the marriage, remainder to his own right heirs. Now, suppose first that his wife dies in his lifetime without issue. Here all the uses of the land, except for the benefit of the settlor himself, are gone. The purposes of the trust for conversion are at an end altogether. The money is, as the phrase is, at home in the settlor's pocket ; there is no obligation on his part to lay it out, and no -room for the application of the maxim, that Equity considers that done which ought to have been done — for the settlor could be under no obligation to liimself or his heir (a). But if, on the other hand, the wife had outlived the husband, were it only for a week, then the trust had not wholly failed, then there was an obligation to pay the lOOOZ. to be laid out on land, then Equity will consider that done which ought to have been done, and will, at the suit of the heir of the settlor, order the money to be laid out or paid to him (6). (a) Pulteney v. Darlington, 1 Brown's Chancery Cases, 223. (5) Lechmere v. Lechmere, Cases temp. Talbot, 80. Con VERSION. — Lectoke II. The task which I propose to myself this evening is to complete, as far as I am able, the general sketch of the doctrine of conversion, which I commenced when we last met. On that occasion I endeavoured to explain — (1.) What language was sufficient to produce a con- version. (2.) The time as from which conversion took place. (3.) The effects of conversion. (4.) The results of a partial or total failure of the purposes of conversion. My treatment of the subject was necessarily not very minute or detailed, yet stUl, I trust, sufficiently so to convey the general principles of the doctrine ; and it is not my intention, on the present occasion, to enter with any great minuteness upon the points then discussed. My chief object now is to touch upon a few questions iatimately connected with the general doc- trine as then explained, yet admitting of a distinct consideration — to add, if I may be allowed the meta- phor, the necessary offices and appurtenances to the main building which I attempted to construct at our 412 SUPPLEMENTAEY LEGTUEES. last meeting. This I shall do under two principal heads, viz. : (I.) Conversion by title or authority paramount. (II.) Reconversion. And, first, as to conversion by title or authority paramount. You will remember that in every instance selected on the previous occasion for the purpose of illustrating the working of the doctrine, the question, whether in contemplation of Equity there was or was not con- version, was referred ultimately to the intention of the " author of the trust " as discoverable from the instru- ment of trust itself. The illustrations chosen were those arising either upon some will — 'and then the question was, had the "testator" on the face of the will shown an intention to convert out and out — or upon some settlement or other instrument "inter vivos;" and then a similar question arose as to the intention of the " contracting parties." The continually recurring elementary question was in substance this : Has the author of the trust said that the land shaU at all events be sold and turned into money ? or, on the other hand, Has he said that the money shall at all events be laid out in land ? And in each case, as I pointed out, assuming the answer to be in the affirmative, a Court of Equity holds that no accidental delay in effecting the intentions of the author of the trust shall vary the rights of parties. The Court treats as done that which ought to have been done, and views the land as money, or the money as land, in accordance with the positive direc- tions of the testator or settlor. CONYEESION. 413 I have thought it right thus to recall to you the leading features of the general doctrine of conversion in order to hring iato more salient prominence the difference hetween these and those of the subject first selected for consideration this evening, viz. : " Con- version by title or authority paramount." By this phrase I mean to characterize those cases in which, without any wish or intention of the owner of property, its actual nature becomes, by the exercise of some legal paramount authority, changed from real estate to personal, or from personal estate to real. I shall not be able to refer to any instances in which the question has arisen with reference to a change from personal estate to real, but the principle would ob- viously be the same in either case. The leading instances of conversion by authority paramount will, I think, be foimd to range themselves under one of the three following heads : — 1. — Conversion by Act of Parliament, as, for in- stance, where, under the authority of some rail- way or other Act, real estate is taken fi'om the owner for a money consideration. 2. — Cases under the jurisdiction in Bankruptcy, where the real estate of the bankrupt is sold to pay his creditors. 3. — Sales under the jurisdiction in Chancery, where real estate is sold to pay debts or charges thereon. In each of these cases the Legislature, or the Court of Bankruptcy, or the Court of Chancery, takes the property of the landowner, and by an authority alto- 414 SUPPLEMENTAET LECTURES. gether superior to his wishes or intentions converts it de facto into money. And under these circumstances questions frequently arise respecting the extent to which this conversion operates as between the real and personal representative of the original owner. Thus, as you see, the question here is not, Is the property, though not converted, to be treated as con- verted? but, Is it, though de facto converted, to be treated to any and what extent as not converted ? The question is of a converse kind to that discussed on the occasion of our last meeting. 1. — Taking, first, cases of conversion by Act of Par- liament, the simple point as to these is, what is the intention of the statute ? The power of the Legislature is one to which aU Courts must succumb. No rule of Equity can vary the expressed intention of an Act of Parliament ; the question is, What has the Act said ? Yet even here, it may perhaps be laid down as a sound principle of construction, that Acts of Parlia- ment authorizing the property of private individuals to be taken for pubhc purposes, ought to be construed so as to vary as little as possible the rights of third persons, and not to be extended beyond their main object. The main object of the Legislature is to acquire the land for purposes of supposed public benefit, not to change the quality of the property. Subject, however, to this general principle of con- struction, the wiU of the Legislature, of which it has been said that it can do almost anything — short of makiug a man a woman, or a woman a man — is the sole guide. CONVERSION. 415 The case of Richards v. Attorney-General of Jamaica {a) affords a good illustration of the powerful operation of conversion by Act of Parliament. A testator resident in Jamaica, and seised of plan- tations and slaves in the Island, by his will, dated June, 1834, after giving certain bequests, proceeded as foUows : — " Also I give, devise, and bequeath, share " and share alike, unto Eosanna Richards and her " children, all my right, title and claim to compensa- " tior, such as may be awarded to me, as my portion " of the compensation fund, for the emancipation of " such slaves as may belong to me, and be living, on " the 1st of August, 1834." This will was not attested so as to pass real estate ; but was properly executed to pass personalty. By the law of Jamaica, slaves could only be devised by a will executed with the formahties requisite in the case of real estate. The Act for the abolition of slavery (3 & 4 WiU. 4, c. 78, passed oil the 28th of August, 1833) provided that, on the 1st of August, 1834, slavery should cease in the British dominions, and gave to the owners of the slaves a right to their services as apprentices, and to a money compensation for the loss of their services as slaves. The testator died before this period of manumission arrived. The Court in Jamaica decreed, that the com- pensation money partook of the nature of real estate to the same extent as the slaves, and did not pass under the will. The Judicial Committee of the Privy Council, however, upon appeal, decided that (treating the slaves as real estate) the Legislature became pur- (a) 6 Moore's Privy Council Cases, 381. 416 SUPPLEMENTAEY LECTURES. chasers, under 3 & 4 "Will. 4, c. 73, from the date of the Act, the vendor retaining a limited interest in the slaves for a term of years, and that the money to be received under the compulsory sale of the slaves was personal estate, and passed to Eosanna Eichards and her children as specific legatees under the will. ^ But while acknowledging the absolute necessity of making the very words of the Act of Parliament om- guide in questions of this class, it is, notwithstanding, possible to attempt some general classification of the cases arising under the Acts of Parliament authorizing the taking of lands for public purposes, and more especially under the " Lands Clauses Consolidation Act, 1845 " (a), an Act which is almost invariably incorporated into recent Acts authorizing the expro- priation of land. The persons whose land is thus forcibly taken from them may commonly be ranged under one of the three following heads : — a. Persons who, being absolutely entitled, submit to the compulsion put upon them, and contract for the sale of their land. 13. Persons who, though absolutely entitled, will not so submit. y. Persons under disability, or persons having only limited interests (i.e., cases where the land is in settlement), a. — In the first case, viz., that of a person absolutely entitled but contracting, though under compulsion, for (a) 7 & 8 Yiot. c. 18. CONVEESION. 417 the sale of land, the case is pretty clear. Induced by the pressure of the Act of ParKament he sells his land — he becomes a party to its conversion ; and the purchase-monies, though not actually paid at the date of his death, are to all intents and purposes personal estate (a). fi. "Where the person absolutely entitled refuses to concur in effecting the sale and receiving his purchase- monej', the Legislature has provided means for ac- quii-ing the property in despite of his resistance ; and the purchase-money is (imder the 76th clause of the Lands Clauses Consolidation Act) paid into the Bank of England under such circumstances as to effect a conversion out and out, — i.e., the purchase -money is personal estate (6). y. Where the land purchased is in settlement, or where the owner is an infant or a lunatic (c), the purchase-money is paid into Court under the 69th section of the Lands Clauses Consolidation Act ; and it is by the express direction of the Act hable to be laid out again on the pmxhase &f land, subject to pro- (a) See Ex parte Hawkins, 13 Sim. 569. (b) But a mere notice to treat, followed by the death of the landowner, without either contract or the exercise of the compulsory powers of the Act, is insufficient to effect a conversion ; Haynes v. Haynes, 1 Drewry & Smale, 426. (c) The decision. Ex parte Flamank, 1 Simons (N.S.), 260, must be viewed as resting on its own special oircnmstauces. The property, though belonging to a lunatic, was taken by the company under the statutory powers conferred as against resisting landowners. As respects land sold under the statutory jurisdiction in lunacy, it is to be observed that the proceeds of sale are, by the statute, carefully impressed with the nature and quality of the land sold ; see 16 & 17 Vict. c. 70, s. 119 ; Re Wharton, 5 De Gex, Macn, & Gror. 33. E E 418 SUPPLEIVIENTAEY LECTURES. visions for an intermediate investment on Government Stock ; and the money is therefore, in the eye of a Court of Equity, land. In a recent case (a), Vice-Chancellor Kindersley thus summed up the decisions : — " It appears then, upon " the authorities, that when the circumstances of the " case have brought it under the 69th section of the " Lands Clauses Consolidation Act, the money has " been held to bear the character of realty ; but if, on " the other hand, the circumstances have brought the " case under the '78th section of the Lands Clauses " Consolidation Act, then the money has been held " personalty." The general result of these Acts may then be said to be, that when an owner is " sui juris " and absolutely entitled, a conversion is intended to be effected : and this seems not unreasonable, for he can himself regu- late the interests inter se of his real and personal representative. Where, on the other hand, the owner is not sui juris or the property is in settlement, then the quality of the property is not intended to be altered, and the money stands in the place of the land as land. 2. — Next as to conversion under the paramount au- thority conferred by the Bankruptcy Laws. The case of Banks v. Scott (&), decided by Sir John Leach, may be usefully referred to upon this poiat. In that case Scott, Nicholson, and Smith carried on business as bankers in partnership, and were rnte- (a) Harrop's Estate, 3 Drewry, 733. (6) 5 Haddock, 493. CONVEESION. 419 rested in the profits and losses in various proportions. A commission of bankruptcy was awarded against them, and the full amount of the joiat and separate debts of the bankrupts with interest was paid. To complete such payment, real estates of great value belonging to the bankrupt Scott were sold, and on the whole, Scott contributed upwards of 46,000L beyond his proportionate share of the losses of the firm. Parts of the estate were sold during the hfe of Scott : parts were contracted to be sold, but not sold at the time of his death, and the remainder were sold after his death, and a surplus remained in the hands of the assignees. The question was, what were the rights of the heir of Scott in respect of the sm'plus produce of sale of the estates sold under the bankruptcy ? Sir John Leach in his judgment expressed himself thus : — " As to the real estate sold or contracted to be sold " during the life of the bankrupt Scott, it must at his " death be considered as converted into personalty; " but as to the real estate which was unsold and un- " contracted for at the death of the bankrupt, it is to " be considered as descending to his heir, subject to " the charge created by the provision of the Bank- " ruptcy laws for the payment of his debts. It can " make no difference in principle, whether such a " charge be created by the provision of the law or " the provision of the party. As far as the real estate " is not exhausted by that charge, it is the property " of the heir." The question, whether even the surplus proceeds of real estate sold in the bankrupt's hfetime might not E E 2 420 StrPPLEMENTAEY LECTURES. have been held to be real estate, seems hardly to have been argued ; and it may be doubted whether, according to the principle of the next decision to which I shall refer, the point might not have been successfully pressed. 3. — As to conversion by the Court of Chancery. Where landed property is subject to debts and charges, say, where a landowner dies indebted, testate or intes- tate, the Court, as you are aware, has power to sell his land for payment of his debts. But obviously it is impossible so exactly to measure the quantity of land required for payment of debts as not in some degree to sell more than necessary. A question then arises, what is the character of the surplus proceeds ? Real estate or personal. This point is covered by the deci- sion in Cooke v. Dealey {a). In that case the testator, Samuel Cooke, directed that aU his debts should be paid by his executors out of his personal estate. He devised his real and per- sonal estate to his wife for life, and after her decease he bequeathed lOOOL to the plaintiff, and, subject thereto, he devised and bequeathed one fourth of his real and personal estate to his daughter, Eliza Dealey, and the rest to other persons. The testator survived his wife and died in 1851. A suit was instituted for the administration of the estate,^ to which Eliza Dealey and her husband were {a) 22 Beavan, 196. See as to this case note (a) at p. 422 infra. The student may also with advantage read and consider the cases arising upon the felling and sale of timber, of which Dyer v. Dyer, 3i Beavan, 504, is oaa of the most recent. CONVEESION. 421 parties. By the decree, the usual accounts were directed, and the real estates were ordered to be sold for the payment of the debts and legacies ; and they were sold accordingly. Subsequently to the decree and to the sale, Eliza Dealey fell into a state of mental imbecility, and the estates, in consequence, were vested in the purchasers, under the Trustee Act. Eliza Dealey died, and in April, 1855, her husbapd took out administration. After payment of the testator's debts and legacies, there stiU remained a surplus of the produce of the real estate in Court. The husband and administrator of Eliza Dealey then presented a petition, whereby he claimed one-fourth of the fund in Court as personal estate ; but this claim was contested by her heir-at-law, who insisted that the surplus fund still retained the character of realty. In deHvering judgment, the Master of the RoUs, after referring to the general rule, that the conversion must take place only to the extent of the object required, and to certain cases in Lunacy which had been relied upon by the counsel for the husband, continued thus : — ■ " I think, however, that the authorities cited, and " rules in lunacy, do not alter the principle in these " cases. More of the real estate was sold than was " necessary ; of course, the conversion is complete " to the extent to which the purchase-money was " required for the particular object for which the sale " took place, namely, for the payment of the debts and " costs, but the excess, though in the form of money. 422 SUPPLEMENTARY LECTUEES. " remained, as before, impressed with the character "of land "(a). (II.) I pass to the subject of reconversion. By reconversion I mean that notional or imaginary process by which a prior constructive conversion is annulled and taken away, and the constructively con- verted property restored in contemplation of a Court of Equity to its original actual quality. Thus real estate is devised upon trust to sell and to pay the proceeds to A. By virtue of this absolute trust the real estate is in Equity converted into personal estatel It belongs to A. as personalty. It may, however, be made A.'s property as real estate. In that event it is said to be reconverted ; and the process is called " Reconversion." The origin and efficacy of reconversion consists in the right of every absolute donee or owner to dispense with, or forbid the execution of, any trust in the performance of which he alone is interested. Thus, if a testator by his will directs his executor to lay out a sum of lOOOL in the purchase of an annuity, the annuitant has a right to say to the exe- cutor, " Give me the lOOOL I prefer that the annuity (a) The soundness of tie decision in this case has been recently questioned by the present Master of the Eolls (Sir George Jessel) who states his view to be, that " if a conyersion is rightfully made, -whether by " the Court or a trustee, all the consequences of a conversion must follow, ' ' and that there is no equity in favour of the heir or any one else to take " the property in any other form than that in which it is found ; and that " the sole question to be considered in all these cases is whether the ' ' estate has been rightfully or wrongfully sold. " Steed v. Preece, L. E. 18 Eq. 192. EECONVEESION. 423 sliould not be purchased" (a). The annuitant under these circumstances is said to exercise his right of " election " to take the fund directed to be laid out on the annuity, instead of the annuity itself. This is a principle of very wide range. Its applica- tion to cases of conversion is at once apparent. In the case just supposed, of lands devised upon trusts to seU and pay the proceeds to A., A. is entitled to the proceeds of sale ; and being absolutely entitled, he has a right to dispense with the execution of the trust for sale, in which he alone is interested. He has a right to " elect " to take the land instead of the proceeds of sale. This right of election forms the groundwork of the doctrine of reconversion. In truth it may be said that reconversion depends upon " election." I may as weU point out the different sense in which I am now using the word " election," from that in which it was used when discussing in a former lecture the doctrine of election commonly so called. Then I treated of the obligation to elect between two species of property or benefits. Now I am speaking of the right to elect to take, in lieu of the proceeds or fruit of any given property, the property itself. Eeconversion then depends upon election, or rather upon the right of election ; and the consideration of the question of reconversion may therefore be con- veniently considered under the two following heads, namely : — (a) Bayley v. Bishop, 9 Vesey, 6. And even where no definite sum is named, but the direction is to purchase an annuity of a given amount, the annuitant is entitled to claim the sum which the annuity would have cost ; Ford V. Batley, 17 Beavan, 303. 424 SUPPLEMENTAEY LECTUEES. ♦ 1. Who may elect so as to effect a reconversion. 2. How an election may be made, so as to produce that effecti And first, who may elect ? It seems to flow from the mere statement of the general principle, that, where the person absolutely entitled to the property in question is under any per- sonal incapacity, the right of election cannot be exer- cised. For how can a person who is under incapacity, as an infant or a lunatic, be permitted to alter the nature of the property to which he is entitled ? Ac- cordingly it is well settled that where property which, in contemplation of Equity, is converted either from real into personal or from personal into real, belongs either to a lunatic or to am infant, there can be no re- conversion. Thus, in Seeley v. Jago {a), Lord Chan- cellor Cowper, speaking of the share of an infant of a sum of money directed to be laid out on land, said that it must be put out for theCbenefit of the infant, he, by reason of his infancy, being incapable of making an election. And in Ashhy v. Palmer (Jo), where there was a trust for sale of real estate, and one of the daughters of the testatrix was a Imiatic, Sir WilUam Grant, after saying that a testator may dispose of his property as he pleases, continues thus : — " In the will now before me, it is clearly given by " the testatrix to her daughter only as money. When " she arrived at twenty-one, it might be that the whole " would remain unsold, andihen she might have elected (a) 1 Peere Williams, 389, (5) 1 MerivaJe, 296. And see Ee Whaitou, 5 De Gex, Macn. & Gfor. 33. EECONVEESION. 425 " to talie it as land; or, if she had kept it unsold " being competent to make an election, she might have " been presumed to have so made her election. Here " she was manifestly incompetent to make any : and " it is as if she had died before the time arrived at " which she could have elected." So much for the case of lunatics and infants. The qualified personal incapacity of a married woman de- mands a more particular consideration. And first, suppose the case of money directed to be laid out in the purchase of land, and the feme covert absolutely entitled to the land. In this case, before the late Fines and Recoveries Act, it was not uncom- mon, when the husband and wife wished to acquire an absolute interest in the money, to make a fictitious purchase. Thus, assume 5000L liable to be laid out in land, to which the wife was entitled in fee. A friend was applied to, who, in consideration of the 5000L, con- veyed land to the wife. Then the husband and wife sold the land back for the same 5000L, levying a fine of the land. There was, however, a mode of avoiding this cir- cuitous process, which is thus described by Lord Hard- wicke in the case of Oldham v, Hughes (a) : — " As to Mrs. Bourne's capacity, if this money is to " be considered as real estate, she is a. feme covert, and " cannot alter the nature of it barely by a contract or " deed; for to alter the property of it, or course of " descent, this money must be invested in land (and " sometimes sham purchases have been made for that (a) 2 Attyns, 453. 426 SUPPLEMENTAEY LECTUEES. " purpose), and she may then levy a fine of the land, " and give it to her husband or anybody else. There " is a way also of doing this, without laying the money " out in land, and that is, by coming into this Court, " whereby the wife may consent to take this money as " personal estate ; and upon her being present in " Court, and being examined (as a feme covert upon " a fine is), as to such consent, it binds this money " articled to be laid out in land, as much as a fine at " law would the land, and she may dispose of it to " the husband, or anybody else; and the reason of it " is this, that at law, money so articled to be laid out " ia land is considered barely as money till an actual " investiture, and the equity of this Court alone views " it in the light of a real estate, and therefore this " Court can act upon its own creature, and do what a " fine at Common Law can upon land ; and if the " wife had craved aid of this Court in the manner I " have mentioned, she might have changed the nature " of this money which is realised, but she cannot do " it by deed." Next, as regards land directed to be sold, and the proceeds to be paid to a married woman. Here the husband and wife might, under the old law, so long as the land remained unsold, by levying a fine, bar aU the wife's interests in the proceeds to arise from the sale of the land. This was the point in May v. Eoper (a). There a married lady, being entitled to a share of the proceeds of real estates directed to be sold, («) i Simons, 360. RECONVERSION. 427 jomed with her husband in assigning, and levying a fine of, her share to a mortgagee ; and it was decided that she was barred of her equity to a settle- ment, the late Vice- Chancellor of England saying that " it seemed to him he ought to hold that the " fine barred the wife of all interest that she could " derive either from the land or the proceeds of " sale of it." The result, therefore (leaving out of consideration the Fines and Eecoveries Act, to which I shall presently allude), was, that in the case of a married woman en- titled either to land to be purchased with money, or money to arise from the sale of the land, the husband might acquire the property in its unconverted state, although the wife had in strictness no capacity to elect ; that is to say, in the case of money directed to be laid out on land, either by maldng a sham pur- chase and levying a fine of the land fictitiously pur- chased, and reselling, or by consenting in Equity after the mode suggested by Lord Hardwicke ; and in the case of money to arise from the sale of land, by levying a fine. Such was the state of the old law; and under the Act for the Abolition of Fines and Eecoveries, the result is precisely similar. That Act in substance says (a), that a married woman may, with the con- currence of her husband, and with the formalities there prescribed, dispose of any estate at Law or in Equity, or any interest (I condense the words pur- (a) 3 & 4 Will. 4, cap. 74, ». 77. 428 SUPPLEMENTAEY LECTURES. posely) in any lands, or money to be laid out in the .purchase of lands. In cases therefore where, at the present day, a married woman is entitled to money directed to be laid out on land, all that is requisite in order to acquire fuU dominion over the money is, that she and her husband should, by deed acknowledged by her, assign the money to a trustee of their own nomina- tion. An absolute title is thus acquired in the money discharged from the trust for investment; and thus, at the option of the husband and wife, though not in strictness by mere election, a reconversion into money is effected. Next, as to land directed to be sold, the proceeds of sale whereof are payable to a married woman. The Fines and Eeeoveries Act, as I stated just now, enables a married woman to dispose of any interest in land ; and it is impossible to deny that the proceeds to arise from the sale of land are an interest in land. Indeed, so strong is the operation of the statute, that it is held that although a married woman cannot in general dispose of her interest in personal estate, so as to bind her right by survivorship (a), yet where that personal estate consists of monies to arise from the sale of real estate, she may do so by deed acknow- ledged (&), the subject-matter of disposition being then an interest in land, and falling therefore within the (a) Pp. 126—129, ante. (5) Of course any election by the husband and wife by deed not acknow- ledged would be unavailing: see Sisson v. Giles, 32 Law J. (N. S.) Chanc. 606 ; 3 De Gex, Jones, & Smith, 614 ; Franks i . BoUans, L. R. 3 Ch. App. 717. EECONYEESION. 429 words of the statute. This was the point decided in Briggs v. Cliamherlain {a). There a married woman, being entitled to a share of the proceeds of real estate directed to be sold, by deed acknowledged, joined her husband in a mortgage thereof, the effect of which mortgage was the point for determination. The Vice-Chancellor, after stating the words of the Act, continued thus : — " These words, therefore, enable a married woman, ' by her deed acknowledged according to the provisions ' of the Act, to dispose of any interest in land, either ' at law or in equity, or any charge, lien, or incum- ' brance in or upon or affecting land, either at law or ' in equity. Now, what is the property in question ? ' It is an interest in land which has been given by the ' will of the testator to a lady who has executed a ' disposition under this Act. The argument which has ' been addressed to the Court against giving effect to ' the disposition so made, has been — that, as the land ' was directed by the will to be, and has been, con- ' verted into money, the Court will regard it as money ' only, and, therefore, as a species of property which ' could not be disposed of by means of a fine, and ' cannot now be disposed of by any conveyance sub- ' stituted for a fine. I should have had no doubt or ' hesitation in saying that the interest of this lady ' under the will of the testator might be disposed of ' by deed executed and acknowledged according to ' the Act, if it had not been for the case of Hobby v. [a) 11 Hare, 69 ; and see Bowyer v. Woodman, L. R. 3 Eq. 313. 430 SUPPLEMENTAET LECTURES. " Allen, in which the then Vice-Chancellor Knight " Bruce is reported to have come to a different con- " elusion. This decision directly conflicts with the " case of May v. Roper. I cannot distinguish the two " cases. A difference suggested is, that in one case " the interest was reversionary: but the question does " not turn on the difference between an interest in " possession and an interest in reversion. The ques- " tion is, whether it is an interest in land which can " pass by a fine, or by a deed having a like effect." And, after further discussing the authorities, the Vice- Chancellor held that the wife's interest was bound by the deed (a). It results then that a married woman, absolutely entitled to the proceeds to arise from the sale of real estate, may, with the concurrence of her husband, make an absolute title to the proceeds, and when this is once effected, the person so absolutely entitled may claim the land discharged from the trust to sell, and thus effect a reconversion. The question, therefore, in respect to personal capacity of individuals to effect a reconversion, may be thus summed up :— A limatic cannot elect or effect a reconversion ; neither can an infant ; but a married woman, although in strictness she cannot elect, can nevertheless, though the special powers of disposition belonging to her and her husband, effect a recon- version. (a) In Tuer v. Turner, 20 Beavan, 560, the same point -was decided in the same way by the late Master of the Rolls ; and see Bowyer v. Wood- man, L. B. 3 Eq. 313. KECONVEESION. 431 Next, as regards the quantity of interest requisite to be owned in order to effect a reconversion. Hitherto I have assumed that the person entitled, either to the money laid out in land or to the land to be sold for money, is entitled to the whole absolute interest in possession. But how will the case stand where a person is entitled, not to the whole subject-matter, but only to an undivided share ? Can he then elect ? The answer to this question may be different accord- ing as the subject-matter consists either of money to be laid out on land, or land to be turned into money. Take the last case first. Suppose land devised upon trust to sell, and to pay one moiety of the proceeds to A., and the other moiety to B. Here, how can A. alone, or B. alone, elect to take the land? Each is entitled to have the whole land sold. A sale of an undivided moiety would obviously produce a far less sum than would be receivable in respect of one-half of the proceeds of sale of the entirety. What right has either to compel the .other to forego a sale of the whole property ? Neither can, therefore, as against the other, elect to take any portion of the land as land ; and there can, therefore, be no reconversion into land through the ordinary operation of the doctrine of election. This was one of the points decided in Holloway v. Badcliffe (a). In that case a testator gave land to his widow for life, and, if his son survived her, to him absolutely ; but if he died in the lifetime of the wife (a) 23 Beavan, 163. 432 SUPPLEMENTARY LECTUEES. (which event happened), then upon trust to sell and hold the proceeds upon certain trusts, under which the son took two-thirds thereof. The son by his will affected to devise the land as real estate, and it was urged that his interest in the proceeds of sale was to be regarded as of that quality. But the Master of the Rolls, after pointing out that the will of the son was framed in the anticipation that he would survive the widow, continued thiis : — " The trust for conversion, on the death of the " widow, was for the benefit of all the next of kin; " and unless they all concurred in electing to take the " property as land, the trust took effect. It would be " repugnant to the principles on which the doctrines " of conversion and reconversion rest, to hold that one " of the legatees of an undivided share in the produce " of real estate directed by the testator to be converted " into personalty could, without the assent of the " others, elect to take his share as unconverted, and " in the shape of real estate." Next suppose the case to be that of a sum of money directed to be laid out on the purchase of land to be settled upon trusts under which, in the events which have happened, the land would belong as to one undivided moiety for A., and as to the other undivided moiety for B. Here, if the land were actually purchased, A. and B. would each be at once entitled to compel a par- tition. Neither can it be said that either one or the other would be in the slightest degree benefited by insisting on a joint purchase. On the contrary, it is EECONVEESION. 433 strongly to be expected that separate purchases would prove more beneficial to each than a joint purchase, subject to a right to pai-tition. Under these circum- stances, therefore, it is held that either A. or B. may elect to take his moiety of the money as money. For this I may refer you to the case of Seeley v. Jago {a). There a testator devised that lOOOL should be laid out in pm-chase of lands in fee, to be settled upon A., B., and C, and their heu's equally to be divided. A. died, leaving an infant heir ; and B. and C, -together with the infant heir, filed a bill for lOOOZ. The judgment of Lord Chancellor Cowper is thus reported : — " The money beiag directed to be laid out in lands " for A., B., and C, equally (which makes them " tenants in common), and B. and C. electing to have " their two-thirds in money, let it be paid to them ; " for it is in vain to lay out this money in land for B. " and C, when the next moment they may tm'n it into " money; and equity, like nature, will do nothing in " vain. But as to the share of the infant, that must " be brought before the Master, and put out for the ■" benefit of the infant, who, by reason of his infancy, is " incapable of making an election. Besides, that such " election might, were he to die during his infancy, be " prejudicial to his heir." The next question which I shall consider is, whether a person who has an interest in the whole subject- matter, though of an expectant or deferred land, can ■elect so as to eifect a reconversion. (a) 1 Peere Williams, 389. 434 SUPPLEMENTARY LECTURES. Thus, a sum of money is directed to be laid out upon land, to be settled to the use of A. for life, remainder- to B. in fee. Can B., during A.'s lifetime, elect to take the money ? Upon principle the answer ought, I conceive, to be in the negative. So long as A. lives, A. has a right to have the money laid out on land, and can at any time insist on that right. How can B., the remainderman, say, as against A., that the money to be laid out in land shall again become money, — shall be reconverted ? The case differs from that befoi'e put to you of tenants in common of proceeds of sale only in this circumstance, that it is not necessarily, or even presumably, for the interest of the tenant for life to insist on a purchase being made. In strictness, how- ever, the remainderman has as little right, as against the tenant for life, to say that he will take the money instead of the land, as onfe tenant in common of the proceeds of sale of land has to say that he will take an undivided share of the land itself. Upon the authorities, however, there is more difficulty. In the note of Messrs. White and Tudor to Fletcher v. Ashburner (a), to which I have already referred you, the general result of the cases upon this point is thus condensed : — A remainderman may elect, but not so as to affect " the interests of the owners of prior estates." Of course if it be meant by this that a remainder- man may, as between his real and personal represen-r tative, say that a particular reversionary interest to which he is entitled shall be treated as money or (a) 1 Leading Cases in Equity, 685. KECONVEESION. 435 land, the proposition is indubitable. Even a tenant in common of proceeds of sale of land dii-ected to be sold, may say expressly the proceeds shall be treated as land ; but the question we are here discussing is, whether a remainderman can, by the mere exercise of his wiU, perform that act of election by which pro- perty is to be deemed as reconverted into its actual character ? In the case of Triquet v. TJiorntoii (a), it certainly was taken for granted he might, though the point was not argued. If the decision in Triquet v. Thornton on this point is to form our guide, the result seems to be that a remainderman may, during the lifetime of the tenant for life, by election reconvert the fund as between his heir and personal representatives. But if this be so, this reconversion is, at all events, of a conditional or qualified kind only. Thus, to revert to our former illustration (monej^ articled to be laid out upon land, to be settled upon A. for life, remainder to B. in fee). Now, according to Triquet v. Thornton, B. may, so long as the money has not actually been laid out, exercise an election to take it as money, subject to A.'s rights, and this exercise of election wiU be operative as between his real and personal representatives. But how if A., the tenant for life, should subsequently insist on the money being laid out on land ? Then, I conceive, the effect of B.'s election must, at all events, be frustrated, and the land must go to his heir. (a) 13 Vesey, 345. 436 SUPPLEMENTAEY LECTURES. Such, I think, must be the view, even if the decision in. Triquet v. Thornton is to prevail. On the otlier hand, the observations of Lord Justice (then Vice-chancellor) Knight Bruce, in the recent case of Gillies v. Longlands (a), seem to point to the stricter and sounder view, that so long as other rights intervene, the remainderman cannot elect — cannot reconvert — though, of course, no one could dispute his- right expressly to regulate the devolution of any pro- perty as between his real and personal representa- tive (b). There land was held, upon trust to pay the income to the separate use of a married woman for hfe, and after her decease upon trust for the children of herself and her husband, in terms giving them life interests only. The property was sold under a power of sale, and not reinvested in land. The wife had affected to treat the investment arising from the proceeds of sale as personal estate ; and it was argued that her ulterior reversion, subject to the life interests, must be re- garded as personal estate. But Lord Justice (then Vice- Chancellor) Knight Bruce, in delivering judg- ment, said : — " The husband died in 1835, and three children of " the marriage, and the wife, survived him ; then the " wife died in 1845, and was survived by two childrea (a) i De Gex & Smale, 372. (b) The judgment of Lord Westbury, in the case of Sisson v. Giles, 32 Law J. (N.S.) Chanc. 606 ; 3 De Gex, J. & Pmith, 614, points to the conclusion that, in order to effect a reconversion hy the mere process of election, the party or parties electing must possess the entire absolute ownership in the subject-matter to be reconverted. EECONVEESION. 437 " of the marriage. There is no doubt but that at the " death of the husband the fund was impressed with " the character of real estate. After the husband's " death the wife had no power of herself to change the " character of the property, because her children had " a right to a voice in the matter in respect of their " interests in remainder." The last point to which I shall caU your attention is, as to the mode ia which election may be made, or, in other words, what wiU amount to an election to take the property in its actual state so as to eifect a recon- version. The very statement of the point implies that a posi- tive declaration of iatention is not requisite, for of course an express declaration of intention on the part of the owner of property that it shaU be deemed either real or personal estate is "per se" sufficient to bind those claiming imder him, without any reference to the actual state or condition of the proj)erty at the time. Thus, take the case of land directed to be sold and' the proceeds of sale paid to A. As to any personal estate, from whatever source arising, A. may, by express declaration, say that as between his real and personal representative, that personal estate shall be real estate ; and so, therefore, he may of course do this as respects the proceeds of sale of this real estate. But reconversion by means of election, which we are here considering, is an offshoot of the general doctrine that property (in the case put, the real estate directed 438 SUPPLEMENTAEY LECTURES. to be sold) though in Equity of one quality, is in fact of anothei* quality (in our particular instance, though in Equity personalty, is in fact realty). In this state of things it is held that if the absolute owner unequi- vocally shows his desire and intention to possess the property according to its actual state and condition, that shaU amount to an election so to take the pro- perty, and operate a reconversion. It results, therefore, that this election, this expres- sion of desire and intention, may be inferred from any acts or writings of the absolute owner. Moreover, it is not necessary that an intention to reconvert should, appear ; it is quite sufficient if an intention existed to take the property in its actual state. Thus in Har court v. Seymour {a), where the question was, whether Lord Harcourt had by his acts recon- verted into money a sum of 32,000Z., held upon trust to be laid out on land, Vice-Chancellor Kindersley thus expresses himself : — " It was argued, indeed, by Mr. Eolt, that there " must be an intention strictly to convert ; that is to " say, that, knowing that the money was impressed " with the character of land, the party must say : ' I " ' mean that it shall no longer be land, but it shall be " * in its actual form of money.' I do not, however, " think that that is the correct view of the law. It is " quite sufficient if the Court sees that the party " means it to be taken in the state in which it actually " is. Whether he did or did not know that, but for " some election by him, it would be turned into land, (a) 2 Simons (N.S.), 12, 46. EECONVERSION. 439 " is quite immaterial. If, being money, the party " absolutely entitled, indicated that he wished to deal " with it as money, and that it should be considered " as money, whether he knew or did not know that, " but for that wish, it would have gone as land, ap- " pears to me to be wholly immaterial." Upon the question what acts will be sufficient to indicate an election, it is difficult to lay down any distinct rule. Perhaps the best general statement is that given by Lord Cottenham in the case of Cooksoii V. Gookson {a), in the following words : — " All the cases establish this, that where the conver- " sion has not, in fact, taken place, and the interest " vests absolutely, whether in land or money, in one " person, any act of his indicating an option in which " character he takes or disposes of it, will determine " the succession as between his real and personal " representatives." I will, however, mention some of the acts which have occasionally been more particularly relied upon as indicating an intention to elect. Take, first, the case of real estate directed to be sold. Entiy upon the land and receiving the rents and profits has generally been viewed, and justly so, as affording a strong indication of intention to elect ; and though in one case (&) Sir William Grant seems to have considered that an entry for two years was too (a) 12 Clark & Finuelly, 146. {b) Kirkman v. Miles, 13 Tesey, 338. 440 SUPPLEMENTARY LECTUEES. short a time to amount to an election, the authority of that decision is open to considerable doubt. So the cii'cumstance of granting leases reserving rent to the party entitled, his heirs or assigns, would afford a strong indication of election (a) . So any acts showing an intention to treat the trust as at an end (&). In Davies v. Ashford (c), by a marriage settlement, ■ real estates were conveyed to trustees in trust to sell and to hold the proceeds in trust for the husband and wife for their lives successively, remainder in trust for their children, remainder in trust for the survivor of the husband and wife absolutely. There was no child of the marriage, and the husband survived his wife, and after her death consulted his solicitors upon liis rights under the settlement, and they haviiig advised him that he was entitled to the whole beneficial in- terest m the estates, he got possession of the settle- ment, and of the title deeds and remained in possession of them, and also of the estates, until his death. It was held that he had, by these acts, sufficiently de- clared his election to take the estates as land. The late Vice-Chancellor of England in delivering judgment, said :— " I admit that the settlement contained a clear " trust for sale, which must have been exercised " unless Mr. Davies did some act which showed that (a) Crabtree 11. Bramble, 3 Atkyns, 680. (6) As for instance an agreement for the partition of the lands, Sharp v. St. Sauvenr, L. R. 7 Ch. App. 343. (c) 15 Simons, 42. RECONVERSION. 441 " he meant the trust to be at an end, and to take " the estates as land. " It does not distinctly appear in whose custodj' the " title deeds originally were ; but it is clear that there " was a change in the possession of them, and that " Mr. Davies got them into his custody. Now was " not that of necessity a destruction of the trust ? For " the trustees could not have compelled Mr. Davies " to deliver up the deeds ; and, without domg so, they " could not have made any effectual sale of the estates. " Therefore, it seems to me that, by consulting on his " rights under the settlement, and then taldng the " deeds into his possession (from whom or by what " means he obtained them is immaterial), he made a " clear election to take the estates as land." Next, as regards personal estate to be laid out on land. Of course, if the person entitled receives the money or securities, the trust is at an end — the recon- version is perfect. But acts short of reduction of the fund into possession will suf&ce. Thus, in Cookson v. Cookson (a), akeady referred to, the question, whether a sum of 10,000Z., which for the purposes of the decision was treated as being impressed with the character of real estate, had, in fact, been reconverted, was decided in favour of the reconversion upon the strength of certain recitals contained in a deed executed by the tenant for life and remainderman of the money-land. And in Harcourt v. Seymour (6), also before referred to, a reconversion into money was, (a) 12 Clark & Finnelly, U7. (6) 2 Simons (N.S.) 12. 442 SUPPLEMENTARY LECTUEES. upon the result of various dealings, held to have been effected by Lord Harcourt, he being tenant for life of the money-land there in question, with remainder (subject to intermediate remainders which failed on his death without issue) to himself in fee. In concluding, as I am now compelled, my sketch of the doctrine of conversion, let me earnestly recommend to your attention the further pursuit of the subject, not only as being one of the most interesting that the range of our Equity reading presents, but on the further ground that the doctrine itself is firmly founded on sotmd reasoning, and approved by every consideration of good sense. I believe I may say, without fear of contradiction, that while the doctrines of "election" and "satisfaction" have (and as it seems to me not without just cause) been the subjects of repeated com- ment and doubt, that of " conversion " has deservedlj^ escaped all hostile criticism. APPENDIX, MR. BARBER'S STATEMENT ON THE PRACTICE AND PKOCEDtFRE OP THE COURT OF CHANCERY IN ENGLAND (a). The practice and procedure of the Court of Chancery in England may be conveniently considered in the following order : — I. Thfe procedure in an ordinary suit down to the decree. : II. Procedure after a decree until a final order. III. Special practice in particular kinds of suits and proceedings. IV. Interlocutory applications. V. EeviYor and supplement. VI. The mode of enforcing decrees and orders. VII. Ee-hearings and appeals. VIII. Summary statutory jurisdiction of the Court. (a) The above statement is, witli parts as were peculiar to Ireland, other papers, appended to the First appear to have found that the prac- Report (1863) of the " English and tioe and procedure of the two coun- Irish Law and Chancery Commis- tries, originally similar, had, by the sion. " effect of modem legislation, become Mr. C. Chapman Barber, of the almost entirely different, and that English Bar, and Mr. Jellett, of the such a statement as they had been Irish Bar, having been requested to requested to furnish would neces- draw up, for the assistance of the sarily involve a general statement Commissioners, a concise statement of the modem practice and proce- of such parts of the procedure of the dure in each country. They there- Superior Courts of Equity as were fore drew up, separately, statements peculiar to England, and of such of the practice and procedure of the APPENDIX (me. BAEBEE's STATEMENT). I. — The Pbocbduee in an Oedinaby Suit down to THE DbCEEE. Form of Bill.- — A suit is commonly commenced by a Bill entitled thus : — Ih Chanoekt. Lord Chancellor. Vice Chancellor (name of Vice OhanceUor). or Master of the KoUs. Between .4.5., Plaintiff. CD. & RF., Defendants. The bill, the draft of which, must be settled and signed by counsel, is, unless under exceptional circumstances (a), ad- dressed to the Lord Chancellor. It contains a statement, in paragraphs numbered consecutively (6), of the facts on which the plaintiff relies as constituting his title to relief, and concludes by a prayer, asking specifically such relief as the plaintiff conceives himself entitled to, and also asking general relief. The names of the defendants are repeated in a note at the foot of the bill. Information. — -When a suit is instituted on behalf of the Crown, or of persons under its peculiar protection, as, for instance, the objects of a pubhc charity, the pleading by which the suit is commenced is called an information. The Attorney-General or Solicitor-General, technically called the Courts of Chancery in England and sion are so trifling that it has been in Ireland, omitting, as a general thought better to print the paper rule, such portions of practice and in extenso. The notes and refer- procedure as are still common to ences, which make no pretension to both countries. _ completeness, have been added by The statement here reprinted, the author of the foregoing Lectures, from the papers laid before Parlia- with a view to the assistance of ment, is the separate statement students. prepared by Mr. Barber. The por- (a) As where the Chancellor is a tions having an exclusive relation to party, the special objects of the Commis- (6) 15 & 16 Vict. u. 86, s. 10. PROCEDURE DOWN TO DECREE. lU informant, is then the complainant. If the suit concerns merely the rights of the Crown, and in some other cases, which it is unnecessary for the present purpose to particu- larize, the Crown officer alone prosecutes the suit. More frequently, however, the suit is instituted at the instance of some private individual, commonly called the relator, who has the conduct of the suit, and who is responsible to the defendants for such costs, if any, as the Court may think fit to award to them. Information and Bill. — In some cases, as, for instance, when a private right connected with a public object is sought • to be enforced, the remedy is by an information and bill combined. Parties. — Generally speaking, all persons who are inte- rested in the subject matter of the litigation should be par- ties to the biU either as plaintiffs or defendants, but the strict rale has been considerably modified by the statute of 1852 (15 & 16 Vict. c. 86, s. 42). The general effect of the relaxation may be stated as follows : (a) Where there is property to be administered under a will, an intestacy, or a deed or other instrument of trust, any one person interested in the property may obtain a decree for its administration by the Court without making the other persons benefi- cially interested parties. (6) In cases of suits for the protection of property, one person may sue on behalf of himself and all others interested. (c) Where real estate is vested in trustees, the trustees, in reference to adverse litigation for or against the trust estate, represent their cestuis que trust, in like manner as executors or administrators represent persons beneficially interested in the personal es- tate of deceased persons. Formal parties. — Notwithstanding these provisions it may b 2 iv APPENDIX (me. BAEBEr's STATEMENT). still be necessary or convenient for a plaintiff, in some cases, to make defendants to a bill persons from whom no account or other direct relief is sought. In such cases he may, as against such persons, merely pray that they may, upon being served with a copy of thq bill, be bound by the pro- ceedings in the cause, and adopt the special course with regard to serving them which will be mentioned under the head of " Service " (a). Selection of Court. — The draft of the bill being completed, and the plaintiff or his solicitor having determined the par- ticular branch of the Court to which the suit shall be attached, the bill is marked accordingly (6). » Printing and Filing Bill. — The bill so marked is printed upon paper and in type prescribed by the orders of the Court (c), and a printed copy is taken to the Office of the Clerks of Kecords and Writs, and there filed. The copy must have indorsed upon it the name, firm, and place of business of the solicitor filing it, and if his place of business is more than three miles from the Eecord and Writ Office, an address within those limits must be added, where notices and pro- ceedings may be served [d). If the plaintiff sues in person, he must indorse his own name and residence, and if the latter be beyoiid the three miles, an address for service within that distance (e). In certain pressing cases (viz., where an Injunction or a writ of We exeat regno is prayed, or it is sought to make an infant a ward of Court) a written copy of the bill may be filed in the first instance upon an under- taking to file a printed copy within 14 days (/). Transfer of Causes. — It may here be observed, that al- though the plaintiff has the right in the first instance of selecting the Court to which the suit is to be attached, the Lord Chancellor has the power of transferring any cause from the paper of any of the Vice-Chancellors to that of any {a) See next page. (d) Consol. order iii, rule 2. (S) Consol. order vi, rule 1. (c) Consol. order iii, rule 5. (c) Consol. order ix, rule 3. C/) 15 & 16 Vict. c. 86, =. 6. PEOCEDUEE DOWN TO DECREE. V Other of the Vice-Chancellors ; and that the Lord Chancellor and the Master of the Rolls have power to transfer causes to or from the paper of any of the Vice-Chancellors, from or to that of the Master of the Rolls ; and that these powers are frequently exercised. Service. — After the biU has been filed the plaintiif proceeds to serve the defendants with copies, previously procuring such copies to be authenticated with the stamp of the Record and Writ Office (a). Such service is effected either personally on each defendant, or by leaving the copy with some servant or member of his family at his dwelling house or usual place of abode (5). Each copy served contains an endorsement requiring the defendants to enter an appearance within eight days, and informing them that if they fail to do so the plaintiff may enter an appearance for them, and that they, the defendants, will be liable to be arrested and imprisoned, and to have a decree made against them in their absence (c). Regular service is, however, in a large number of cases dis- pensed with on the solicitor of the defendants giving to the plaintiff's solicitor an undertaking to appear. Service upon formal parties. — ^As regards merely formal parties whom the plaintiff seeks to bind by serving them with a copy of the bill, the service must be within 12 weeks after the iiling of the bill, and the usual endorsement is omitted from the copy of the bill served, the intention being that the defendant should not appear unless he himself is desirous of doing so {d). Appearance. — Where parties are served in the ordinary way, or an undertaking to appear is given, appearances are commonly entered in due time in the Record and Writ Of&ce. Every appearance, and indeed every proceeding filed (a) 15 & 16 Vict. c. 86, s. 3. rule 2. For the special practice \b) Consol. order x, rule 1. -where the defendant is a corporate (c) The form is that prescribed body or a peer, see Braithwaite's by the schedule to 16 & 17 Vict. c. Record and Writ Practice, 29. fcti, as varied by Consol. order ix, (d) Consol. order x, rule 11. vi APPENDIX (mR. BAEBER's STATEMENT). at the Eecord and "Writ Office, must have an address for service within three miles from the office (a). A formal defendant merely served with a copy of the bill and not required to enter an appearance, though under no obligation to appear, may, if he thinks fit, as of course within 12 days after service, and subsequently with special leave of the Court ih), enter a common appearance, and if he does so, the suit will be prosecuted against him in the ordinary way, but the costs occasioned thereby are paid by the party appearing unless the Court otherwise directs (c). A formal defendant may, however, take a course intermediate between that of appearing simply and not appearing at all, by entering a special appearance " for the purpose of being served with notice of all proceedings in the Suit " {d), in which case he does not become a complete party to the suit, but is merely served with notice of all proceedings. This special appear- ance is entered (if at all) within the same time, and subject to the same liability as to costs occasioned thereby, as in the case of a common appearance by a formal defendant. Practice as to service upon formal parties not mtich followed. — It may here be observed that the practice of merely serving formal parties with a copy of the bill without requiring them to appear, has been much less resorted to since it has become unnecessary to call for an answer from each defendant made a party in the ordinary way. The practice, however, is still useful and convenient in some cases. Substituted Service. — Where a defendant is resident out of the jurisdiction, or evades service of the bill, the Court will frequently order service to be substituted upon some person shown to be the agent of the defendant for the purposes of the suit, or (perhaps) for a purpose connected with the suit. The principle upon which the Court acts in directing substi- tuted service is to sanction such service as there is reasonable (a) Consol. order iii, rule 2. {c) Consol. order x, rule 14. (b) Consol. order x, rule 16. (d) Consol. order x, rule 15. PROCEDURE DOWN TO DECREE. Vll ground for believing -will come to the defendant's knowledge. In certain oases, substituted service is ordered almost as of course. For instance, where a defendant in equity, resident out of the jurisdiction, is suing the plaintiff in an action at law, service is commonly substituted on the attorney at law, and where the bill to which appearance is sought is a cross biU merely, service is similarly substituted on the solicitor acting for the defendant as plaintiff in the original bill. When substituted service is so made, a copy of the order authorizing substitution should be served at the same time. Seiidce out of the jurisdiction. — Where a defendant is out of the jurisdiction, the Court upon application supported by evidence, showing in what country or place the defendant may probably be found, may order a copy of the bill (and if an answer is required, a copy of the interrogatories) to be served in such place or country as the Court shall think fit ; and the order, if made, limits a time for appearance after service, and a time for pleading, answering, or demurring. In serving the bill, a copy of the order must be served at the same time (a). It is a matter for the discretion of the Court to grant or withhold the order, but the order is commonly obtained without difficulty (&). Entering appearance for defendant. — Where a defendant (not being an infant or a person of weak or unsound mind), who is duly served either within or without the jurisdiction, fails to appear within the time limited for appearance, the plaintiff may, as of com-se when the service is within the jurisdiction, and he takes that step within three weeks after (a) Conaol. order x, rule 7. Smith, 365 ; Foley v. MaUla/rdet, (6) The practice of the Court as ib. 389 ; and Samuel v. Rogers, ib. to ordering service out of the juris- 396, ultimately settled in Drum- diction was, sifter a period of uncer- mMid v. Drummond, L. R. 2 Oh. tainty introduced hy the decisions App. 32, which the student may of Lord Westbury in Coolcney v. consult with advantage. Anderson, 1 De Gex, Jones & viii APPENDIX (me. baebee's statement). the time for appearance has e.xpired (a), and in other cases with leave of the Court obtained on special application, enter an appearance for the defendant (b). Case of defendant absconding. — If the particular defendant •whom it is desired to serve cannot be found, and it can be shown that he has been within the jurisdiction at some time not more than two years before bill filed, and that there is just ground for believing he has gone out of the realm or absconded to avoid process, an order may be made directing his appearance within a certain day, and a copy of the order is then published in the London Gazette and otherwise as directed by the Court, together with a notice to the effect that if the defendant does not appear by the time named in the order, the plaintiff may enter an appearance for him ; and on proof of publication and non-appearance, the Court subsequently authorizes the plaintiff to enter an appear- ance (c). Object and effect of entry of a'ppearance by plaintiff for a defendant. — The entry of an appearance for the defendant by the plaintiff in some or one of the modes adverted to, is principally useful as limiting the time within which a de- murrer may be filed to the biU, which runs from the entry of the appearance {d) ; and as a preliminary step towards taking the bill pro confesso against the defendant (e). The plaintiff however, notwithstanding his having entered an appearance for the defendant, unless and until he has obtained an order to take the bill pro confesso against the defendant, is still under an obligation to serve the defaulting defendant per- sonally, or at his dwelling house or ofiice, with notice of the subsequent proceedings in the cause,' an obligation which he can only discharge by obtaining special leave from the Court that notice in the Gazette shall be good service. The (a) The order (Consol. order x, (c) Consol. order x, nje 6. rule i) says, "-mtMn three -weeks [d) Cousol. order xxxvii, rule 3. from the time of service." (e) Consol. order xxii, rule 2. (6) Consol. order x, role 4. PEOCEDURB DOWN TO DECEEE. IX defendant, on the other hand, cannot take any step in the cause without first entering an appearance in the ordinary way ; and though he may do this, as of right (a), this appear- ance does not affect the prior proceedings or prejudice any right acquired by the plaintiff. Case wliere defeTidant is an infant or of unsound mind. — Where a defendant is an infant or a person of weak or unsound mind not so found by inquisition, some relative is commonly induced to undertake the defence, and is appointed guardian ad litem ; but in default of this, the Court upon the application of the plaintiff orders that one of the solicitors of the Court (usually the solicitor to the Suitors' Fund), be assigned as guardian, and the defendant then appears, and defends by the guardian so appointed (6). Demurrer. — The defendant may, within twelve days after appearance, entered by or for him, demur to the bill (c). The grounds upon which a demurrer may be filed are various, and it is unnecessary for the present purpose to specify them. The most common cause of demurrer is that the plaintiff has not, by his bill, shown any title to relief. The demurrer must be signed by Counsel (d). It is en- grossed on parchment, and filed at the Record and Writ Office by the sohcitor for the demurring party, who must the same day (an obligation which applies equally in the case of other pleadings, such as plea, answer, or replica- tion), give notice to the plaintiff's solicitor of its having been filed (e). Setting down demurrers. — Either party is at liberty to set the demurrer down for argument immediately (/). The non-exercise of this option by the demurring party brings with it no liability on his part, but should the plaintiff abstain for twelve days to set down a demurrer to the whole (a) Consol. order x, rule 9. {d) Consol. order viii, rule ]. (h) Consol. order vli, rule 3. (e) Consol. order iii, rule 9. (c) Consol. order xxxvii, rule 3. (/) Consol. order xiv, rule 11. X APPENDIX (me. BAEBER's STATEMENT). bill (a), or for three weeks to set down a demurrer to part of the bill (6), the effect (unless in the meantime he should have obtained and served an order to amend his bill) is the same as if the demurrer had been allowed on argument. Assum- ing, however, the demurrer to be duly set down for hearing, it is argued in Court on an early day, when the Court either allows or overrules the demurrer. If it is allowed, and the Court does not give leave to amend the bill, the suit is at an end as to the demurring defendant. If the demurrer is overruled, or leave is given to amend the biU, the suit proceeds. Plea. — If the bill states a case for relief, but a defendant has a short simple defence to the bill, e. g., the Statute of Limitations, or a release, br that he is a purchaser for valu- able consideration without notice, he may raise the defence by means of a plea, instead of meeting in detail the allega- tions contained in the bill. A plea is signed by counsel (c), engrossed on parchment, and filed at the Record and Writ Office. Except when relating to matters of record, it is put in on the oath of the defendant. In reference to a plea, two questions necessarily arise, viz., (1), whether it is a sufficient answer in law ? and (2), whether it is true in fact ? The first question is disposed of by setting the plea down for argument before the Court, when the Court decides whether, assuming the truth of the plea, it is or not an answer to the case made by the bill. In the former case it is allowed, in the latter overruled. Technically the allow- ance of a plea only determines its sufficiency in law, and leaves the question of its truth to be litigated by the parties going into evidence upon the short point raised by the plea. In most cases, however, upon a plea being allowed, the bill is out of Court, for the plea having been put in upon oath, or being capable of proof by record, is almost invari- (a) Consol. order xiv, rule 14. (i) Ibidem, rule 15. (c) Consol. order viii, rule 1. PEOCEDUEE DOWN TO DECREE. XI ably true. If, therefore, the plea is, in law, an answer to the plaintiiF's case, it is generally useless for the plaintiff to continue the contest. When a plea is overruled, the order overruling it commonly directs the plea to stand as an answer to the bill, with liberty for the plaintiff to call for a fuller answer as to any matters which may not be sufl&- ciently met by the plea. Setting down pleas. — The duty of a plaintiff in reference to setting down a plea which has been filed is analogous to that above explained with regard to demurrers, that is, unless the plaintiff takes issue on the question of truth by undertaking to reply, he must set the plea down within 3 weeks (a). If he neither undertakes to reply nor sets down the plea, nor serves an order for leave to amend, within that time, the effect is the same as if the plea had been allowed on argu- ment. And where the plea is to the whole biU the plaintiff is viewed as having declined to try the question of truth, and the defendant, who has pleaded, may obtain, as of course, an order to dismiss the bill with costs. Assuming the defendant neither to demur nor plead to the whole bill, or to do so unsuccessfully, the suit proceeds according to what may be called the ordinary course, as being that which prevails in the larger number of causes. Interrogatories. — According to the practice of the English Court, the plaintiff has a right to re.quire each defendant to answer, upon oath, interrogatories in reference to the sub- ject matter of the suit (b), and generally, though not always necessarily, founded on allegations contained in the plaintiff's bill. These interrogatories are numbered consecutively ; they are settled and signed by Counsel. One set of inter- rogatories is usually filed for the examination of all the defendants required to answer, though each defendant may not be required to answer every interrogatory, and a note is added at the foot. specifying the interrogatories which each (o) Consol. order xit, rule 17. (i) 15 & 16 Vict. o. 86, s. 12. xii APPENDIX (me. barber's statement). defendant is required to answer (a). The interrogatories must be filed, and copies thereof, omitting those which are not required to be answered by any particular defendant or set of defendants, are dehvered to the defendants respectively required to answer within certain times prescribed by the orders of the Court (6). Production of Documents. — Under the old practice the plaintiff almost always, as a matter of course, interrogated the defendant respecting the dociunents in his possession or power relating to the matters alleged by the bill. This practice has not been abolished, and is still not unfrequently followed ; but, under the modern practice (c), the discovery as to documents is commonly obtained from the defendant by summary proceedings at chambers, as follows : — The plaintiff takes out a summons and obtains thereunder an order that the defendant do, within a given time after service (d), make, in a form prescribed by the practice, an affidavit as to the documents in his possession or power relating to the matters in question in the suit, and directing him to produce, for the inspection of the plaintiif, such of the documents admitted to be in his possession as he does not, by the affidavit, object to produce. If the defendant, by his affidavit, objects to produce any of the documents admitted to be in his possession, and the plaintiff is advised that the objections are untenable, he applies again, by sum- moning the defendant at chambers for production of such documents, and in such case the summons is generally adjourned to be argued before the Court. If the plaintiff considers the affidavit evasive or insufficient, he applies by summons at chambers, that the defendant may make a further affidavit, and an order to that effect is accordingly made, if, in the opinion of the Judge, either at Chambers, or in Court upon the summons being adjourned into Court, (a) Schedule B to Consol. orders. service, the process in the event of {fi) ConsoL order xi, rules 4, 5. its not being obeyed, being by (c) 15 & 16 Vict. c. 86, s. 18. attachment, (c/) This order needs personal PEOCEDUEK DOWN TO DECEEE. XUl the affidavit is insufficient (a). This summary procedure may be resorted to by the plaintiff as soon as the defendant has appeared, and may be prosecuted whether the defendant has or has not been required to answer ; and if required to answer whether he has or has not been interrogated as to documents. "When the interrogatory filed for the examination of the defendant in answer to the biU includes an interrogatory as to documents, and such interrogatory has been fuUy answered, the practice is to apply at chambers for production upon the admissions in the answer. Answer. — ^Next as regards the ordinary course of defence. The plaintiff having filed and served interrogatories, the defendant is compelled to put in an answer within a time limited by the orders of the Court (6), which is frequently extended by special order. The answer, the draft of which must be signed by Counsel (c), does not at the commencement or in the body of it appear to be made on oath. It is, how- ever, sworn in the same manner as an affidavit, except that the oath actually administered is of a qualified kind, i.e., the person answering swears that what is contained in the answer, so far as concerns his own acts, and deeds, is true to his own knowledge, and so far as relates to the acts and deeds of other persons is believed by him to be true. The answer so sworn is filed in the Record and Writ Clerks Office. The answer filed may be either printed or written [d). kaj schedules annexed to the answer must be filed with it, whether the answer actually filed is printed or not. Printed copies are made of the answer for the use of the parties to the suit, omitting the schedules. The plaintiff obtains a written copy of the schedules from the Eecord and Writ Office. (a) See as illustrating the prac- delivery of the interrogatories. See tice, Nod v. Nod, 1 De Gex, Jones Consol. order xxxvii, rule 4. & Smith, 468 ; Wright v. Pitt, (c) Consol. order "viii, rule 1. L.R. 3 Ch. App. 809 ; SwaU t. (d) Order of March 6, 1860, ■ Browne, L.R. 17 Eq. 402. rules 1, 5. (5) Twenty-eight days from the Xiv APPENDIX (me. BAEBEE'S STATEMENT). Exceptions. — An answer commonly contains not only a discovery respecting the matters inquired after by fhe interrogatories, but also a statement of such matters as the defendant considers material to be stated for the purposes of his defence (a). As regards the last-mentioned portion of the contents of the answer the plaintiff has no control, but should he consider that a full discovery is not afforded re- specting the matters inquired after by the interrogatories, he is entitled, within a time fixed for that purpose by general orders (6), to except to the answer for insufficiency. This he does by filing in the Eecord and Writ Clerks' Office excep- tions, the draft of which must be settled and signed by counsel (c), mentioning the particular interrogatories or por- tions of interrogatories which he considers to be insufficiently answered, and unless the defendant within a limited time submits to answer the interrogatories in the points excepted to, the exceptions are set down for argument before the Court, upon which argument the Court decides whether the answer is sufficient in the points excepted to or not. If ' the answer is held insufficient the defendant is compelled to put in a further answer, and if the plaintiff considers the answer still insufficient, the exceptions are again set down for argument before the Court. If the second answer is considered to be insufficient the same course of proceeding is adopted ; but upon a thii-d answer being held to be insuf- ficient, the Court may order the defendant to be examined orally upon interrogatories on the points as to which it is held to be insufficient, and to stand committed until he shall have perfectly answered the interrogatories (d). Voluntary answer. — If the plaintiff does not file interro- gatories, the defendant's advisers have to consider whether he shall put in a voluntary answer or not. If his defence depends upon the simple negation of some one or more of (a) 15 & 16 Vict. c. 86, s. 14. (cl Consol. order xvi, rule 1. (6) Consol. order xvi, rule 6. (d) Consol. order xvi, rule 19. PEOCEDUEE DOWN TO DECEEE. XV the facts alleged by the bill, no answer is requisite, since his mere silence is, for the purposes of pleading, equivalent to a traverse by him of the case made by the bill (a). If, on the other hand, the defendant's case mainly depends upon independent facts not disclosed by the bill, it is often advis- able for him to put in a voluntary answer, which he must do within a limited time. A voluntary answer is sworn and filed like a compulsory answer, and printed in like manner. It is not, however, liable to exception for insufficiency. Amendment of Bill. — The defendant's answer, compulsory or voluntary, as the case may be, having been put in, or no answer having been required, and the time for putting in a voluntary answer having expired, the plaintiff has to determine whether he can safely carry the cause to a hearing upon the pleadings as they then stand. The answer of the defendant may show, or the plaintiff may have otherwise ascertained, that the bill contains errors of statement calling for rectification, or that a defence has been or may be set up capable of being neutralized or weakened by the statement of material facts hitherto tmnoticed. In these and other cases it frequently becomes advisable for the plaintiff to amend his bill. Rules as to amendment with respect to time, die. — Before answer the plaintiff may amend his bill at pleasure on ob- taining an order of course for the purpose (6). After answer, where there is only one defendant, or all join in one answer, the plaintiff may amend once, and once only, as of course, on obtaining an order for this purpose at any time within four weeks after the answer is deemed sufficient (c). If there are several defendants who do not join in answering, he may similarly amend once only at any time within four weeks after the last answer required is to be deemed sufficient (d). In order to obtain leave to amend a second time after answer (a) 15 & 16 Vict. c. 86, s. 26. (c) Consol. order ix, rule 10. (6) Consol. order ix, rule 8. (d) Consol. order x, rule 11. Xvi APPENDIX (me. BAHBBE's STATEMENT). except for the purpose of amending clerical errors in names, dates, or sums, whicli may be done at any time (a), the plaintiff must apply upon affidavit, showing, 1st, that the draft of the proposed amendments has been signed, settled, and approved by counsel ; and, 2ndly, that such amendment is not in- tended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff (6). And if the plaintiff applies for leave after the expiration of the four weeks referred to he must, in addition, show by affidavit that the matter of the proposed amendment is material and could not, with reasonable diligence, sooner have been introduced into the bill (c). It may be stated generally that leave to amend is rarely refused, unless there has been extraordinary delay, or the Judge is satisfied that the proposed amendments are vexatious. Mode of making amendments. — The amendments are made by written alterations on the printed bill filed, and by addi- tions on paper, to be interleaved therewith, subject to the restriction that not more than two folios, 144 words {d), of new matter can be introduced continuously at the same part of the original bill. Should this limit be exceeded, the whole bill as amended must be reprinted, and a reprinted copy filed. The draft of the amended bill must be signed by counsel. It is, speaking generally, couppetent to the defendant to demur or plead to the amended bill, as in the case of an original bill (e). Further interrogatories. — Should the plaintiff require a further answer as to the allegations in the amended bill, he (a) Consol. order ix, rule 2. words ; consequently additlona may, (6) Consol. order ix, rule 14. notwithstanding tlie reduction, still (c) Consol. order ix, rule 15. be made to the extent of 180 words id) The 15 & 16 Vict. c. 86, at the same place. o. 8, permits amendments when ac- (e) But not to demur to the cording to the then present practice amended Bill upon any ground of the Court, an amendment might upon which the original Bill might be made without a new engross- have been demurred to ; see ment. At that time the folio, since Attamey-Omeral t. Cooper, 8 reduced to 72 words, was of 90 Hare, 166. PEOCEDURE DOWN TO DECEEE. XVll files additional interrogatories, and delivers copies as before explained ; and the defendant, if new interrogatories are filed, puts in a further answer by compulsion. If the plaintiff does not file further interrogatories, the defendant either puts in a voluntary answer or not, as he may be ad- vised in reference to the circumstances of the particular case. Detnurrer, plea, and answer. — It may here be observed that one portion of a bill may be demurrable, another portion may be capable of being met by plea, while to the remainder it may be necessary to put in an answer. In such a case each mode of defence may be used by one and the same pleading, which is styled a demurrer, plea, and answer, and each portion of which is subject to the same rules as if the said defences had been made severally to several bills. A similar rule applies where two only of these defences are applicable to different portions of the same bill. Clodng the pleadings. — When the pleadings are complete there are three modes of proceeding to bring the cause to a hearing. • (i.) By setting the cause down on bill and answer. (ii.) By giving a notice of motion for a decree. (ill.) By replication. I. Hearing on hill and answer. — This course is only re- sorted to where the defendant, if only one, or all the defen- dants, if more than one (other than merely formal defendants, if any, served with copies of the bill), have answered, and where the plaintiff requires no evidence in support of his case, except the answers of the defendants, and the proof by affidavit or vivA voce at the hearing of any documents which, though not disputed, may not be admitted by the answer. The defendants in this case require no evidence, being enti- tled to read their answer as evidence against the plaintiff. II. Motion for d4tree. — The practice of moving for a decree is of recent date. It owes its origin to the Act of 1852 (15 & 16 Yict. c. 86, s. 15). xyiii APPENDIX (me. baebee's statement). The plaintiff having filed at the Record and Writ Office such affidavits as he considers will, with the admissions con- tained in the answers, if any, of the defendants, be sufficient to support his case, gives notice to the defendants (other than merely formal defendants, if any, served ■wfith copies of the bill) that he intends, at the expiration of one month , from the date of the notice (a), to move for a decree, and at the foot of the notice of motion the plaintiff specifies the affidavits which he intends to use in support of the motion (6). The defendant has a fortnight's time (c) (often extended by special order) to file affidavits in answer, and the plaintiff has a week {d) (also often similarly extended) to file affidavits in reply, but the affidavits so filed must be strictly in reply, and no further evidence is allowed on either side without special leave of the Court, which is very rarely granted, and as a rule upon payment of costs. Affidavits. — It may here be conveniently noticed that all affidavits, whether to be used on a motion for decree or in any other proceeding, must be expressed in the first per- son (e), must be divided into paragraphs, numbered consecu- tively (/ ), and show at the foot on whose behalf they are filed ((/). By a recent general order (16 May, 1862) affidavits and depositions to be used on the hearing of a cause on motion for decree or after issue joined, except such as have been filed for the purpose of interlocutory applications, are directed to be printed. Setting down cause on motion for decree. — As soon as the notice of motion is given, and without waiting for the expira- tion of the month, the cause may be set down in the Cause List to be heard on the motion for a decree (A). The cause having been placed in the ordinary Cause List, is heard in its (a) Consol. order xxiiii, rule 4. (/) 15 & 16 Vict. o. 86, s. 37. (6) Ibidem, rule 6. (ff) Ordei* of Feb. 6, 1861, rule (c) Ibidem, rule 6. 18. {d) Ibidem, uule 7. (A) See Sixth Regulation (by Ee- (e) Consol. order xTiii, rule 1. gistrars), of March 15, 1860. PROCEDURE DOWN TO DECREE. XIX turn, subject to tlie restriction that it cannot come into the paper for hearing until the month has expired, and. if course cannot be heard until the evidence is complete. This procedure is in many respects very convenient, and is adopted very frequently. It differs from the ordinary proceeding on interlocutory motions (to be presently men- tioned) in the following respects ; that the motion for decree goes into the ordinary Cause List, and that instead of the parties filing affidavits in turn until they are exhausted, a limit is prescribed. Cross-examination on affidavits. — Persons making affidavits to be used on a motion for decree, are subject to cross-exami- nation on such affidavits before the examiner by the parties desiring to cross-examine them, or by their solicitors or counsel, in the presence of the other parties, their solicitors or counsel (a). The answers of parties to the suit, are for the purposes of the motion for decree treated as affidavits (6), which the plaintiff may read as against the particular defen- dant answering without any notice, but as against other defendants only upon notice (o). Parties who have put in answers are, upon motion for decree, subject to cross-exami- nation before the examiner in the same way as persons making affidavits. The Court is at liberty, if it thinks fit, to refuse the motion and give leave to the plaintiff to bring on the cause more formally {d) ; but in practice it seldom exercises its dis- cretion in this way. The hearing of the motion is treated as being to all intents and purposes the hearing of the cause. in. Replication. — If the plaintiff does not set the cause down on biU and answer, or proceed by way of motion for decree, his course is to file replication. (a) 15 & 16 Vict. c. 86, a. 40. Stephens v. Heathcote, 1 Drewry & (5) 15 & 16 Vict. c. 86, s. 15. Smale, 138. (c) For the practice as to reading (d) 16 & 16 Vict. c. 86, s. 16. affidavits on notice for decree, see c 2 XX APPENDIX (me. barber's STATEMENT). At- this point it becomes necessary to notice other possible contingencies of pleading besides those of a compelled or voluntary answer, and of a defendant not required to answer and abstaining from so doing. It sometimes happens that a plaintiff, after filing interrogatories, is unable, without great delay and expense, to obtain a full answer from the defendant, and he may be advised that, without an answer, he has sufficient evidence to substantiate his case. Traversing note. — In this event, the plaintiff simply files a traversing note, which is thus worded : " the plaintiff intends to proceed with his cause as if the defendant had filed an answer traversing the allegations made by the bill " (a). If, however, the plaintiff is advised that he can- not safely bring his cause to a hearing without having an answer from the defendant, or an admission by him of the material allegations in the bill, his course is to proceed against the defendant by a process of contempt, i. e., to take his body under an attachment with a view to compel to answer. Taking bill "pro confesso." — Should the defendant persist in refusing to answer, notwithstanding the attachment, or should he abscond, then the remedy of the plaintiff is to proceed to take the bill " pro confesso '' against the contumacious or absconding defendant (6), the effect of which proceeding is that, although the plaintiff may not get the discovery he wants, he obtains in lieu thereof what in contemplation of the Court is equivalent to an actual admission by the defendant of the facts stated by the bill of the plaintiff. Taking into account these two additional contingencies of the traversing note and of the taking the bill " pro confesso," it will be seen that the defendants to a bill (other than merely formal defendants, if any, served with copies of the bill) must fall within some one of the following five classes, namely : — (a) Consol. order xiii, rule 1. (i) Consol. order xxii, rule 2. PHOCEDUEE DOWN TO DECREE. XXI 1. Defendants who, whetlier required to answer or not, have in fact answered, and by their answers have alleged a case which the plaintiff wishes to controvert. 2. Defendants who have been required to answer but have not answered, and as to whom the plaintiff has filed a traversing note. 3. Defendants who have not been required to answer and have not answered. 4. Defendants who have put in an answer, the truth of which the plaintiff is willing to admit. 5. Defendants who have been required to answer and have not answered, and against whom the plaintiff has obtained an order to take the bill "pro confesso." Form of replication. — ^Assuming a suit to embrace defend- ants of all these five classes the plaintiff joins issue by filing against all what is called a replication, in the following form (a). ' Between A.B. Plaintiff. and ' CD. &c. E.F. &c. G.H. &c. Defendants. ' The plaintiff in this cause hereby joins issue with ' the defendants CD., &c., \all the defendants who have ' answered or pdeaded, or against whom a traversing note ' lias been filed, or who have not been required to answer ' and have not answered the hiir\, and will hear the ' cause on bill and answer against the defendants E.F., ' &c., \all the defendants against whom the cause is to he ' heard on hill and answer^ and on the order to take the ' bill as confessed against the defendants G.H. &c. [as ' the case may hey If it is not intended to hear the cause on bill and answer as against any defendants, or if the bill is not to be taken (a) Cousol. order xvii. xxii APPENDIX (me. baebee's statement). as confessed against any defendants, the form of the repli- cation is modified to meet the case. Amendment after replication. — Should it so happen that after replication filed, the plaintiff desires to withdraw his replication and amend, he may do so on the same terms as mentioned with respect to amendment after four weeks from the time of the answer or last answer being deemed sufficient (a). Evidence. — The cause is now at issue ; and the next step is the taking of the evidence, as between the plaintiff and the first three classes of defendants, or such of them as may exist in any particular case. According to the last alteration of procedure (6) unless a special order is obtained for taking- evidence vivA voce at the hearing, or a special agreement is entered into, the parties go into evidence, either wholly or partially by way of affidavit, or wholly or partially by the oral examination of witnesses ex parte before one of the examiners of the Court, or a special examiner (c). Any witness may be cross-examined in Court at the hearing of the cause. Vivd voce evidence at hearing, c&c. — In reference to the special exceptions above referred to, it is to be observed : first, that upon summons taken out by any party within 14 days after issue joined, the Judge at chambers may make an order that the evidence in chief as to any particular facts or issues shall be taken vivA voce at the hearing (d), and in such cases, the evidence in chief as to such facts or issues, and also the cross-examination and re-examination relating thereto, are to be taken in that mode (e) ; and, secondly, that if the parties prefer resorting to the mode of examining witnesses esta- blished by the procedure introduced by the Act of 1852, that is to say, by examination and cross-examination and (a) Consol. order ix, rule 15. 1861, rule 4. (6) Order as to Evidence, Feb. 5, (d) Ibidem, nJe 3. 1861. (e) Ibidem, same rule, (c) Order as to Evidence, Feb. 5, PROCEDURE DOWN TO DECREE. XXIU re-examination before the examiner, (not ex parte, but in the presence of the solicitors and counsel on both sides,) they may, upon filing at the office of the Clerks of Kecords and Writs an agreement so to take the evidence, proceed accord- ing to the former practice (a). Aged, infirm, &c., tiiitnes^es. — An order may be obtained at chambers for the oral examination before the Examiner, and in the presence of solicitors and counsel, of any witness where by reason of his age, infirmity, or probable absence out of the jurisdiction, it is expedient that such order should be made (b). General practice as to evidence. — Having regard to the fore- going explanations, the ordinary practice of the Court as to evidence after issue joined, except the evidence as to par- ticular facts or issues, which may be ordered to be taken viva voce at the hearing, may be stated thus ; Each party verifies his case, wholly or partially by affidavit, or wholly or partially by oral examination of witnesses ex parte before one of the Examiners of the Court or a special Examiner, and there is no cross-examination otherwise than at the hearing of the cause. Admissions. — In reference to proof of written documents it should be observed that a recent Act (21 & 22 Vict. o. 27, s. 7) provides that in any case in which all parties to a suit axe competent to make admissions, any party may call on any other party by notice to admit any document, saving just exceptions ; and in case of refusal or neglect to admit, the costs of proof are to be paid by the party refusing or neglecting, and no costs of proof are to be allowed, unless notice to admit be given or the omission to give notice has saved expense. This enactment though limited expressly to suits all parties to which are competent, is in other respects quite general in its terms, and has been to a great extent acted upon as applying to suits generally. There is, how- (a) Order aa to Evidence, Feb. 5, 1861, rule 10. (6) IMdem, rule 11. xxiv APPENDIX (me. BAEBEE's STATEMENT). ever, as yet no decision on this point, and it may perhaps be doubted whether the enactment really applies to any other cases than those of jury trial before the Court under the provisions of the Act. Admissions are, however, apart from the provisions of the Statute, commonly resorted to by arrangement between the parties, more especially in reference to documents, and where the documents to be proved are numerous. The admission then commonly assumes the form of an agreement between the solicitors, specifying the documents in a schedule ; and modifying and qualifying the admission as to some particular document or documents peculiarly cir- cumstanced. Admissions of this kind often provide also for admitting in evidence copies which the parties have had an opportunity of examining beforehand in lieu of originals. It is considered that under rule 24 of the Order of the 5th February 1861, admissions may, with the sanction of the Court or Judge at chambers, be entered into on behalf of infants, married women, and persons of unsound mind. Closing the Evidenee. — At the expiration of eight weeks after issue joined the evidence in chief is closed, unless the time be further enlarged (a). And (except by agi-eement, or in the special eases before stated), the only cross-examination now allowed, where issue has been joined by filing a replica- tion, is at the hearing. When on the replication notice is given of the plaintiff's intention to hear the cause on bill and answer as against any of the defendants, there is in truth no issue joined between the plaintiff and such defend- ants, and as against them the cause is heard in the same way as if they had been the only defendants to the bill, and as if the cause had been set down on the bill and their answer without any replication. Subpoena to hear judgment. — As soon as the evidence in chief is closed, the plaintiff may set down the cause and (a) Order of Feb. 5, 1861, rule 5. PROCEDUEE DOWX TO DECEEE. XXV obtain and serve on the defendants a subpoena to hear judg- ment, which must not be returnable less than one month from the teste of the writ, and must be served 10 days be- fore the return (a). The cause cannot be heard before the return day of the suhpaena. In case either party desires to cross-examine vivA voce at the hearing, notice to that effect is given to the party whose witness it is desired to cross-ex- amine ; and in order to provide against the contingency of the cross-examination leading to the unnecessary detention of witnesses, and to additional expense, an application may, in cases where a cross-examination is required, be made to the Court or the Judge at Chambers, to fix a day for the hearing of the cause (6). Entry of memoraiidum of service on formal defendants. — It may here be noticed that previously to any cause being set down to be heard in either of the three modes of proceeding above explained, the plaintiff must obtain an order for enter- ing at the Eecord and Writ Clerks' Office a memorandum of the service upon any formal defendants of a copy of the bill where the biU prays as against such defendants, that on being so served they may be bound by the proceedings, and where no appearance has been entered by such defendant. This order is obtained on motion in Court on an affidavit of service of the bill. Cross proceedings hy defendant. — At this point it will be convenient to advert to certain steps more or less frequently taken by the defendant as actor against the plaintiff in the ordinary course of the cause, previously to the hearing. These are, (1.) Filing cross interrogatories. (2.) Applying for production of documents. (3.) Moving to dismiss the bill for want of prosecution. (1.) Filing cross interrogatories. — The case of a defendant may depend for its support chiefly on facts lying within the knowledge of the plaintiff, and the defendant may feel satis- (d) Consol. order xxi, rules 1, 5. (6) Order of Feb. 5, 1861, rule 21. xxyI appendix (me. baebee's statement). fied that the plaintiff would, upon being interrogated, be compelled to admit these facts. Under the old practice, the course in those cases was to file a cross bill for discovery. Now the defendant may, as soon as he has himself put in a sufficient answer, file in the Kecord and Writ Office interro- gatories for the examination of the plaintiff, prefixing to such interrogatories a concise statement of the subjects on which a discovery is sought, and the plaintiflF is bound to answer, and the defendant entitled to except in like manner as if the interrogatories had been filed in a suit for discovery (a). (2.) Production of documents. — A defendant has also the right, as soon as, if required to answer, he has put in a full answer to the plaintiff' 's bill, of applying against the plaintiff for production of documents, in precisely the same way as already explained with respect to applications of this kind by the plaintiff against the defendant (6). (3). Dismissal of hill for want of prosecution. — Where a defendant finds that the plaintiff, either through want of confidence in his own case or for other reasons, fails to proceed with diligence, he may by motion to dismiss the bill for want of prosecution compel the plaintiff either to go on or to put an end to the suit altogether (c). The prac- tice of the Court is so framed as to give a defendant a right in the event of unreasonable delay on the part of the plain- tiff to move to dismiss at a certain time after each step in the cause. It seems unnecessary to specify in detail aU the various circumstances under which a defendant acquires this right to move to dismiss ; the principal are, — (a) Where the plaintiff does not within four weeks after (a) 15 & 16 Vict. c. 86, s. 19. tion y. Whitham, L.K. 3 Eq. 89. It has been held that where a cor- But see Republic of Liberia v. Im- poration is plaintiff, the defendant perial Bank, L.U. 16 Eq. 180. cannot under this section file inter- (6) 15 & 16 Yict. c. 86, s. 20. rogatories for the examination of (c) Consol. order xxxiii, rules its ofiSoers when they are not 10 — 13. parties ; Imperial Credit A ssocia- PEOCEDUEE DOWN TO DECEEE. XXvii the answer or the last of the answers is deemed sufficient, or after traversing note filed, either file replication, or set down cause on biU and answer, — or serve notice of motion for a decree, or proceed to amend (a). (0) Where a plaintiff does not set down the cause to be heard, and serve subpmna to hear judgment within four weeks after the evidence is closed (6). (y) A defendant from whom no answer has been required may move to dismiss at the expiration of three months after appearance, unless the cause has been set down to be heard either on motion for decree or after replication (c). Upon the hearing of a motion to dismiss, the Court generally declines entering upon any inquiry into the merits of the bill or of the defence (d). The points to be considered are simply : First, Is the defendant entitled in point of time to move to dismiss ? Secondly, What excuse, if any. can the plaintiff give for his delay 1 In the most frequent case, namely that of a motion to dismiss made before replication filed, the common result of the motion is that the plaintiff is ordered to file a replication within a week, and to pay the defendant the costs of the motion. In default of filing a replication within the week the order proceeds to dismiss the biU with costs, to be paid by the plaintifil If the plaintiff desires it, he wiU in most cases be allowed the same time to set down the cause on bill and answer, or to give a notice of motion for a decree instead of filing- replication. Exceptions for scandal. — Another proceeding, open alike (a) Consol. order xxxiii, rule 10. ' decretal order shall have been (6) Ibidem, rule 10. ' served in the meantime, or the (c) Ibidem, rule 13. The rule ' cause shall have been set down to as altered by order of Nov. 22, 'be heard. ' 1866, runs as follows: 'Unless a {d) Star/g v. Knowles, 3 Hare, ' notice of motion for a decree, or 241. xxviii APPENDIX (me. bakbee's statement). to a plaintiff as to a defendant, viz., exceptions for scandal, by means of which portions of the pleadings or of the evi- dence may be expunged and removed from the consideration of the Court, may be here mentioned. Scandal may be said generally to consist in the allegation of facts in un- becoming language, or in the allegation against a party, or even a stranger to the cause, of some crime or misdemeanor irrelevant to the matter in dispute. The proper mode to be adopted by the person aggrieved in order to procure the removal of such allegation from the bill, answer, affidavit, or deposition in which it may occur, is by exceptions in writing, signed by counsel, describing the particular passages alleged to be scandalous, which excep- tions must be filed with the Clerk of Records and Writs (a). Such exceptions are heard by the Judge to whose branch of the Court the cause is attached, in like manner as exceptions to an answer for insufficiency (5). Impertinence. — The practice of excepting for impertinence, that is, the introduction of irrelevant matter into any written proceedings, has been abolished, but at the hearing of the cause, application may be made to the Court that any party introducing impertinent matter into the proceedings may pay the costs occasioned thereby (c). Hearing. — The order of the hearing may be generally statedj|thus : — First the leading counsel for the plaintiff states the case. Then the plaintiff's evidence is heard and his documentary evidence put in, the junior counsel for the plaintiff is heard ; the statement of the leading counsel for the defendant, the defendant's evidence, and the argument of the defendant's junior counsel follow next ; and if there are various sets of defendants, their counsel and evidence are heard and put in, in the order in which the defendants' names appear on the (a) Consol. order xvi, rule 2. (i) 13 tice a guardian is, in all cases, 618. appointed. (c) See Consol. order xli, rules (Jb) Re Royston Qi-aminar ScJiod, 10 — 13. 9 Law J. (N.S.) Chanc. 250 ; (c?) 23 & 24 Vict. cap. 33, o. 9. SITMJIAEY STATUTORY JURISDICTION. Ixix 6. Defence ^c<.— Under the Defence Act, 1860 (23 & 24 Vict. 0. 112), the applications relating to monies paid into ■Court, which in the case of other compulsory taking of lands ai-e made by petition, are made by summons. 7. Special cases under orders of Court. — By one of the general orders of the Court (a) the summary jurisdiction of the Court, which under certain Statutes would but for that ■order have been exercised upon petition in open Court, is made exercisable at Chambers, in respect to the following matters, that is to say : — (a) Applications under the 36 Geo. 3, c. 52, s. 32, in all cases where the sum paid into the Bank or the stock transferred into the name of the Accountant-General under such section does not exceed 300Z.~ cash or 300^. stock, as the case may be. (^) Applications under the Trustee Belief Acts, in all cases where the trust fund does not exceed 300?. cash or 300?. stock, as the case may be. (y) Applications under "The Trustee Act, 1850," and the Extension Act of 1852, in all cases where any decree or order has been made by the Court for the sale or conveyance of any real estate. (8) Applications on behalf of infants under the Statute 1 Will. 4, c. 65, ss. 12, 16, and 17, in aU cases where the infant is a ward of the Court, or the adminis- tration of the estate of the infant, or the maintenance of the infant, is under the direction of the Court. lAst of Statutes conferring a summary Jurisdiction on the Court of Cluincery. Act for the Discovery of the Death of Tenants for Life and other Persons having limited Interests (6 Anne, c. 18). {a) Consol. order xxxT, rule 1 . Ixx APPENDIX (me. BABBEr's STATEMENT). Legacy Duty Act (Infants' Legacies) 36 Geo. 3, c. 52, s. 32. Charities— Sir S. Eomilly's Act (52 Geo. 3, c. 101). Unclaimed Stock (56 Geo. 3, c. 60 ; 8 cfc 9 Vict. c. 62). Property belonging beneficially to infants and femes covert (1 W. 4, 0. 65). Act for abolition of fines and recoveries (3 & 4 W. 4, c. 74, ss. 33, 48). Custody of Infants {a) (Talfourd's Act) 2 & 3 Vict. c. 54. Defence Acts, 1842 and 1860 (5 & 6 Vict. o. 94 ; 23 & 24 Vict. c. 112). Attornies and Solicitors' Act (6 & 7 Vict. c. 73). Lands Clauses Consolidation Act (8 Vict. c. 18). Trustee Belief Acts (10 & 11 Vict. c. 96 j 12 & 13 Vict. c. 74). Trustee Acts (13 & 14 Vict. c. 60 ; 15 & 16 Vict. c. 55). Charitable Trusts Acts, 1853 and 1855 (16 & 17 Vict. c. 137; 18&19 Vict. c. 124). Act authorizing infants to make settlements on marriage (18 & 19 Vict. c. 43). Leases and sales of settled estates (6) (19 & 20 Vict. c. 120 ; 21 & 22 Vict. c. 77). Lord St. Leonards' Act (22 & 23 Vict. c. 35, s. 30). (Signed) C. Chapman Barber. (a) Repealed and, in effect, ex- jirevious Settled Estates Acts in a tended by 36 Vict. cap. 12. most important particular, and so (J) The Act of last Session (37 as largely to extend their opera- & 38 Vict., cap. 33), amends the tion. APPENDIX A.— {See p. 16.) Margaret Appilgaeth, widow, v. Thomas Sergbantson. Bill complaining that tJie Defendant having obtained a sum of money of Plaintiff under a promise of marriage, has married another woman and refuses to return if. To the right reverent Fadre in God the Bisshop of Bathe, Chaimceller of England. Besecheth mekely Margaret Appilgarth of York wydewe, that where Thomas Sergeantson of the same, at diverse tymes spak to yo' saide besecher ful sadly and hertly in hir conceit, and sought upon hir to have hir to wyfe, desiring to have of hir certaine golde to the some of xxxvj. li for costes to bee made of their mariage, & to emploie in marchandise to his encrese & profit as to hir husbande. Wheruppon she havyng ful byleve & trust in his trouthe & langage, nor desiring of him eeny contract of matrymoyne, delivered him the saide some at diverse tymes : aftre the which liveree furthwith he nat willing to relivere the saide some to yo'' said bisechere hathe taken to wyfe an othre woman, in grete deceit, hurt, & uttre undooyng of hir, witliout, yo'^ gracieux help & soco' in this partie. Please it to yo'' good grace to considre the premisses, and that yo' saide besechere no remedy hathe by the comone lawe to get ayeine the said some ; and ther upon to graunte a writ ayeins the saide Thomas to appere afore yow at a certaine (Jay upon a certain peyne by you to bee lymit, to bee examined upon the premisses ; and ther upon make him to Ixxii APPENDIX B. doo as good feithe & cousciens wol in this partie. — And she shall pray God for yow. INDORSED ON THE BILL. Memorand' quod quinto die Mareij Anno regni Eegis Henrici sexti decimo septimo Thomas Wytham de com' Lincoln' gentilman & Robertus Danby de com Ebor' gentil- man coram eodem domino Rege in Cancellaria sua persona- liter constituti manuoeperunt videlicet uterque eorum pro prefata Margareta quod ipsa in casu quo materiam in hac supplicatione specificatam veram probare non poterit tunc prefato Thome dampna & expensa que ipse ea occasione sustinebit satisfaciet juxta formam statuti (a) in hac parte editi & provisi. — Calendars of Proceedings in Clmncery, vol. i. p. xli. APPENDIX B.—{See p. 16.) Henry Hoigges v. John Habrt. Bill praying the Chancellor to restrain the Defendant hy oath from tising the arts of witchcraft, dec, hy which he luxs injured Plaintiff, on account of his liaving heen attorney in a suit against the prior of Bodmin, in whose service the Defendant is employed. To the ryght worthy and reverent Holyfader