rtW^TMUTKuITi f:t,5-: ,'.''-._ -;«^ OlornfU ICam ^rl|oal Etbrarg Digitized by Microsoft® °"Miiii1U.!,„?S"")f ^being Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Library, 2008. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® Cornell University Library The original of tliis book 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..prg/details/cu31 924021 65401 1 '^ DigitizeV by Microsoft® Digitized by Microsoft® OUTLINES OF EQUITY, A SERIES OF ELEMENTARY LECTURES ON EQUITY JURISDICTION, DELIVERED AT THE KEQ17EST OF THE INCOEPOEATED LAW SOCIETY; Suppletnentatg ILectuws on Olertatn Boctetnes of iBquifg, OBSERVATIONS ON THE DEFENCE OF PURCHASE FOR VALUABLE CONSIDERATION WITHOUT NOTICE. FEEEMAN OLIVER HAYNES, OP Lincoln's inn, earristek-at'C^w, FORMERLY FELLOW OF CAIUS COLLEGE, CAMBRIDGE. FIFTH EDITION. LONDON : WILLIAM MAXWELL & SON, 29, FLEET STREET, E.C., MEREDITH, RAY, & LITTLER, MANCHESTER; HODGES, FOSTER, & CO., AND E. PONSONBY, DUBLIN ; C. F. MAXWELL, MELBOURNE AND SYDNEY. 1880. Digitized by Microsoft® ^J&^^d BBADEUEY, AGNEW, & CO., PBINTEKS, WHITEFBIAKS. Digitized by Microsoft® THE KIGHl' H0N0I7BABLB JOHN LORD ROMILLY &o. &c. &c. WHO WHILE INHERITING A NAME ALKBADT ILLUSTKTOTJS IN OUR LEGAL ANNALS HAS HIMSELF ASSOCIATED THAT NAME WITH THE ANCIENT DIGNITY OF MASTER OP THE ROLLS THE FOLLOWING OUTLINES OF EQUITY ORIGINALLY SKETCHED FOB THE INSTRUCTION OF ASPIRANTS TO A PROFESSION OVER WHICH HIS HIGH OFFICE GIVES HIM A SPECIAL SUPERVISION ARE WITH PERMISSION MOST RESPECTFULLY INSCRIBED. Digitized by Microsoft® Digitized by Microsoft® PEEFACE. The Fourth Edition (3000 copies) of these Outlines being now exhausted, a New Edition is offered to the Public. The principal alterations made consist in expunging those portions of the former contents which related to the old practice of the Court of Chancery, and in adding a sketch in which an attempt is made to eluci- date the principles by which the defence of purchase for valuable consideration without notice is governed. The notes have been carefully revised and references to the more recent decisions added. F. 0. HAYNES. Lincoln's Inn, April 7, 1880. Digitized by Microsoft® Digitized by Microsoft® PKEFACE TO THE FIRST EDITION. The following pages are little more than the repro- duction in print of a Course of Elementary Lectures on Equity, recently delivered at the request of the Incorporated Law Society. It has been represented to me by friends of my own profession, who have read my Lectures, that the publi- cation of them is likely to be useful ; that while a voluminous treatise alarms a beginner, a condensed manual, containing often in a single sentence the abstract result of a mass of decision, is beyond his strength ; and that the following sketches are well suited to convey elementary knowledge in Equity, both to gentlemen reading in Barristers' Chambers, and to students such as those to whom my oral teaching was addressed. •It has been further suggested to me, that some outlines of our Equity system may be useful to University undergraduates who have selected law as Digitized by Microsoft® VIU PEEPACE TO THE FIRST EDITION. part of their curriculum, and interesting to educated laymen of maturer years. Finally, should my friends have formed a mistaken estimate of the general utility of my performance, it is, perhaps, not too much to presume, that at least those individual gentlemen to whom my Lectures were delivered may derive advantage from refreshing their memory by a perusal of them. Lincoln's Inn, 1858. Digitized by Microsoft® PEEFACE TO THE SECOND EDITION. The anticipations expressed by the Author in his Preface to the former Edition of these Lectures have in some respects been surpassed, his work having been thought of sufficient merit to warrant its adoption as a class-book for Bar Students. He has, in consequence, while preparing a second edition, now called for, ventured to assume that there is a real need on the part of students beginning their law reading for accu- rate information respecting Equity, conveyed in a less condensed form than is commonly adopted by elemen- tary treatises ; and, so assuming, he has included in this Edition four Lectm-es (part of a second course) on the equity doctrines of " Election," " Satisfaction," and " Conversion." No attempt has been made to alter or re-write any portion of the Lectm-es, so as to adapt them (in the few cases needful) to the subsequent alterations in the law, the Author finding it distasteful to write, in Digitized by Microsoft® X PREFACE TO THE SECOND EDITION. the style suited for oral delivery, matter not in fact intended to be used orally ; but notes, with references to subsequent cases, have been added for the assistance of students. But probably, to the student class of readers, the most valuable addition now made wiU be found to be Mr. Barber's statement on Equity Practice and Pro- cediire, which is reprinted from the Parliamentary Papers, and to which the Author of the Lectures has appended some notes and references. As part of the endeavour to improve the book for educational purposes, a Table of Cases has been prefixed. 13, New Sqxjaee, Lincoln's Inn, Fehnmrij 3, 1865. Digitized by Microsoft® PEEFACE TO THE THIRD EDITION. A New Edition of these Lectures having been called for, my first care was to ascertain whether, notwith- standing the legal decisions and statutory enactments of the last seven years, they could still be considered useful to those for whose information they were originally published. The result of a careful reperusal of them was to satisfy me that, except in respect of the alterations introduced by the Married Women's Property Act, 1870, and those infused into the practice of the Court of Chancery by the 25th & 26th Vict., cap. 42 (Rolfs Act), the text might be treated as little affected by the lapse of time ; and the Lectures have, therefore, been reprinted with notes explaining the effect of subsequent legislation and referriag to the recent decisions applicable to the questions discussed. An Elementary Lecture on the subject of " Fusion," Digitized by Microsoft® Xll PREFACE TO THE THIRD EDITION. delivered while the present Edition was passing through the press, has been added. I have to thank my son, Mr. Edmund C. Haynes, Fellow of Queen's College, Cambridge, for assistance in correcting the press, and for useful hints as respects the notes. F. O. HAYNES. 15, Old Buildings, Lincoln's Inn, January 1, 1873. Digitized by Microsoft® PREFACE TO THE FOURTH EDITION. The shortness of the period which has elapsed since the puhlication of the Thii'd Edition of these Lectures would, but for the intermediate passing of the Supreme Court of Judicature Act, 1873, have caused the present edition to be little more than a reprint, with additional references to a few cases decided during the interval. Looking, however, to that Act, which, though not yet in force, will doubtless become so towards the end of the year 1875, I have added notes calling attention to such of its provisions as seemed more particularly to bear upon the subjects discussed. The lectm'e on "Fusion" has been expunged, as possessing no longer sufficient interest to warrant retaining it. F. 0. HAYNES. Lincoln's Inn, Seiitemher 11, 1874. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CASES. AbERNETnT V. HoTOHINSOJJ, 244 Ackroyd v. Smithson, 348 Adams v. Gamble, 186 V. Lloyd, 123 Aiusworth v. Walmsley, 245 Albert, Prince, v. Strange, 244 Allison V. Herring, 207 Andrews, Be, 72 Angell V. Angell, 134, 135 Anonymous Case, 88 , 125 Appletou V. Eowley, 182 Ashby V. Palmer, 368 Ashwoith V. Outram, 57 Astel V. Canston, 225 Attomey-General v. Brunning, 345 V. Forbes, 250 V. Lomas, 345 V. Wilkins, 389, 404, 407, 435 Bacon v. Jones, 236 Baggett V. Meux, 184 Bagshaw v. Winter, 60 Banks v. Goodfellow, 153 V. Scott, 362 Barrack v. StcCuUocli, 180 BarroT? v. Barrow, 61, 287 Barry v. Stevens, 205 Barton v. Kock, 114 Bassett v. Nosworthy, 393, 402, 405, 450 Bates V. Johnson, 419 Bath, Earl of, v. Sherwin, 142 Bayspoole v. CoUins, 450 Bax, Ex parte, 198 Bayley v. Bishop, 366 Baylis v. Legros, 254 Beardmore v. Treadwell, 251 BecWnall v. Ai-nold, 403 Belchier v. Butler, 405, 450 Bell V. Cundall, 441 Bennet v. Davis, 165 Bennett v. Houldsworth, 313 Benson v. PauU, 255 Berkeley Peerage Case, 127 Besoh V. Frolich, 88 Best V. Hill, 256 Bilbie v. Lumley, 81 Bindon's, Viscountess, Case, 159i Binford v. Bawden, 369 Bird V. Peagrum, 183 Birmingham v. Kirwan, 271 Bishop V. Wall, 179 Blandy v. Widmore, 318 Bold Buccleugh, The, 454 Bolden v. Mcolay, 175 Boughton V. Boughton, 279 Bourne v. Bourne, 341 Bousfield V. Lawford, 110 Bowen v. Evans, 389, 406, 439 Bowles V. Orr, 206 Bowra v. Wright, 103 Bowyer v. Woodman, 372, 373 Boyse v. Kossborough, 149 Brace v. Duchess of Marlborongh 418, 430 Bray 1J. Finch, 122- Briggs V. Chamberlain, 372 British Empire Shipping Company V. Somes, 126 Brodie v. Barry, 281, 283 Brooke v. Brooke, 180 Brown v. Brown, 272 -0. Wales, 126 Browne v. Pocock, 169 Bullock V. Menzies, 61 Bullpin V. Clarke, 173 Digitized by Microsoft® XVI TABLE OP CASES. Burgess v. Burgess, 246 V. Hills, 246 Burlace v. Cook, 404 Butler V. Cumpston, 180 Butler's Trust, 63 Caldwell v. Vahvlissewgek, 239 Campbell v. Campbell, 300 Caxdell v. Hawke, 51 Came v. Erice, 180 Carter v. Carter, 427, 429 Cavendish v. Geaves, 110 Chichester v. Coventry, 303, 311 Chubb V. Stretch, 27 Chui-chill V. Churchill, 289 V. Dibben, 185 Clark v. Cort, 110 Clarke v. Clayton, 103 V. Franklin, 337, 362 Clinton v. Willes, 176 Cobbett 1). Ludlam, 226 Cogan V. Stevens, 350 Cole V. WiUard, 315 CoUingwood v. Eow, 343 Collins V. Archer, 391, 403, 406, 412, 432, 434, 459 Collins Company v. Brown, 246 Colyer v. Finch, 434, 437 Cook v. HaU, 134 Cooke, Sx parte, 322 V. Dealey, 363 Cookson V. Cookson, 383, 385 Cooper V. Cooper, 263, 287 ■!>. Phibbs, 84 Couch V. Stratton, 324 Coventry v. Chichester, 303 Cowles V. Gale, 92 Cowper V. Cowper, 28 Crabtree v. Bramble, 383 Crawshay v. Thornton, 245 Croskey v. European, &c. , Shipping Company, 212 Croughton's Trusts, 168 Crump V. Lambert, 251 Curling v. May, 329 Curson v. African Company, 109 Curteis*. Wormald, 350 Curtis V. Curtis, 96 Custance v. Bradshaw, 345 Cutler, Me, 64 Datiiisok, Be, 384 Davies v. Ashford, 384 Davies v. Thorny croft, 171 Dawson v. Dawson, 300, 303, 313 Dewar v. ]%itland, 283 Dillon V. Coppin, 102 ■;;. Parker, 264, 289 Dinwiddle v. Bailey, 211 Ditton, Ex parte, 25 Dixon V, Enoch, 118 V. Fawcus, 246 Doe V. Louch, 67 Donaldson v. Beckett, 233 Douglas V. Douglas, 289 Downshire, Marquis of, v. Lady Sandys, 253 Drinkwater v. Eadcliffe, 103 Dummer v. Pitcher, 274 Duncan v. Cashin, 165 Duncombe v. Greenacre, 61 Dunkley?). Dunkley, 60, 61 Dunn V. Coates, 125 Durham, Lord, v. Wharton, 300 Dursley v. Fitzhardinge Berkeley, 127 Dyer v. Dyer, 363 Eaden v. Fikth, 241 Eaglesfield v. Marquis of London- derry, 84 Earlom v. Saunders, 333, 345 Eaton V. Watts, 41 Edwards v. Meyrick, 76 V. West, 343 Bdyall v. Hunston, 225 Elibank, Lady, v. Montolieu, 61 EUice V. Koupell (No. 1), 136 (No. 2), 134, 136 EUis' Trusts, 168 Europa, Tlie, 454 Evans v. Louis, 123 Faieek v. Paek, 316 Fairthome v. Weston, 89 Farina v. Silverlock, 248 Fenton v. Hughes, 118 Fettiplace v. Gorges, 179 Finch V. Shaw, 404, 408, 434 Fitzsimons v. Fitzsimons, 277 Flamank, Ex parte, 360 Fleshward v. Jackson, 159 Fletcher v. Ashburner, 325, 378 Fluker v. Taylor, 210 Foley V. Hill, 206 Forbes v. Steven, 345 Digitized by Microsoft® TABLE OF CASES. XVll Ford V. Batley, 366 Foster v. Foster, 360 Fox V. Fox, 41 Foxwell V. Webster, 139 Frank v. Frank, 288 Franks v. BoUans, 372 Fraser v. Kershaw, 100 Frederick v. Aynsoombe, 344 Freeman v. Lomas, 109 Fuller V. Bennett, 451 Gaffee's Settlememi, 168 Gardner v. Marshall, 60 ■Garrard v. Tuck, 97 Gee V. Pritchard, 243 Gilbert v. Smith, 104 Gillies V. Longlands, 345, 379 Glascott I. Copper Miners' Com- pany, 118 V. Lang, 228 Goldsmid v. Goldsmid, 324 Goldsworthy, In re, 71 Golebome v. Alcock, 402 Gomm V. Parrott, 97, 411, 416, 457 Gordon, Me, 383 Gore V. Knight, 162, 180 Gorges v. Chancie, 159, 179 Graham r. Londonderry, 159 /;. Maxwell, 228 Greatley v. Noble, 176 Greedy v. Larender, 61 Green v. Farmer, 106 V. Green, 272 Gretton v. Haward, 263, 271, 286 Griffith V. Kicketts, 336 Griggs V. Gibson, 288 Guidot V. Guidot, 329 Gurney v. Gumey, 71 Hail v. Baekows, 245 V. HaU, 89 1). HiU, 310 V. Waterhouse, 184, 187 Hance v. Trawhitt, 286 Hancocks v. Lablache, 59 Harcourt v. Seymour, 382, 385 Harding v. Hardrett, 450 Harris v. CottereU, 136, 148 V. Mott, 185 Harrop's Estate, Be, 361 Harvey v. Harvey, 165 Harvey's Estate, In re, 177 Hatch V. Hatch, 76 Hawkes v. Hubback, 168 Hawkins, Ex parte, 360 V. Hawkins, 181 Haynes v. Haynes, 360 Heard v. Stamford, 26 Heath v. Crealock, 400, 437 Heatley v. Thomas, 173 Hemings v. Pugh, 205 Henderson v. Eason, 98 Herz V. Union Bank of London, 251 Hewett V. Webb, 122 Hewitt V. Wright, 338 Highway v. Banner, 281 Hill V. Turner, 228 Hindson v. Weatherill, 76 Hitchen v. Birks, 114 Hoare v. Osborne, 186 V. Parker, 456 Holloway v. Kadcliffe, 375 Holmes v. Holmes, 300 Hookham v. Pottage, 246 Homcastle v. Charlesworth, 102 Horrell v. Waldrup, 54 Howard v. Bank of England, 57 V. Digby, 178 Hulme V. Tenant, 173 Humphery v. Eichards, 180 Hunt V. Hewitt, 121 Huntington v. Greenville, 421 Huskisson i). Bridge, 41 Inohbald v. Eobinson, 241, 251 Isenberg v. East India House Estate Company, 251 Iveson V. Moore, 249 Jaoksos v. Ogs, 207 V. Kowe, 450 Jefferys v. Boosey, 234 Jermy v. Preston, 365 Jerrard v. Saunders, 389, 393 Jessel V. Chaplin, 254 Jessopp V. Watson, 349 Johnson v. Gallagher, 177 V. Telford, 283 V. Wyatt, 251 Jones V. Davies, 341 V. Geddes, 228 V. Gregory, 150 V. Harris, 166 V. Powles, 424 Digitized by Microsoft® XVUl TABLE OF CASES. Jones !>. Salter, 169 Jope 11. Morshead, 102 Joyce V. De Moleyns, 397, 407 Judd V. Pratt, 283 EeLIAND v. FtTLPOBD, 360 Kemble v. Farren, 68 Kemp V. Pryor, 125 Kincaid, Be, 64 Kirk V. Eddowes, 310 Kirkman •». Miles, 3S3 KitcMn V. Hawkins, 81 Knott, Ex parte, 427 Iansdowne v. Lansbowne, 83 Lawes v. Bennet, 342 leaf V. Coles, 88 Leather Cloth Company f. American Leather Cloth Company, 245 Lechmere v. Brotheridge, 186 V. Earl of CarUsIe, 320, 326 V. Lechmere, 319, 353 Lench v. Lench, 323 Lister v. Smith, 151 London Chartered Bank of Australia 1). Lempriere, 173, 174, 177 Longman v. East, 194 Love V. Baker, 228 Lovett V. Lovett, 150 Low V. Kentledge, 239 Lowther v. Carleton, 405 Macbbtde v. Weekes, 92 Mackenzie v. Johnston, 204- Mackliu v. Richardson, 244 Macnab v. Whitbread, 40 Makepeace v. Eogers, 204 Maiden v. Menill, 441 Marr v. Littlewood, 114 Marsh v. Lee, 417 Massey v. Parker, 170 Mathews v. Mathews, 315 Matsou V. Swift, 345, 346 Matthewman, Be, 175 Mawman v. Tegg, 241 Maxwell v. Maxwell, 283, 284 May V. Eoper, 370 Mayd v. Field, 173, 304 Mayhew v. Herrick, 100 McAndrew v. Basset, 245 McCarogher v. Whieldon, 3C4 McHenry v. Davies, 173, 175 Meek v. Devenish, 379 Meinertzhagen v. Walters, 304 Mellor's Policy Trasts, 57 Messenger v. Clarke, 180 Metropolitan Board of Works v. Sant, 241 JEcklethwait i>. Micklethwait, 253 Milbum V. the London and South Western Railway Company, 226 Mildmay v. Quicke, 360 Millington v. Fox, 246 Minnehaha, The, 123 Mole V. Mansfield, 101 Molony v. Kennedy, 183 Monopolies, Case of, 231, 232 Montefiore v. Guedalla, 304 Moore v. Morris, 168 Moxon V. Bright, 205 Murray v. Barlee, 174 V. EUiston, 243 Mutlow V. Bigg, 383 Neave v. Avert, 144, 256 Newall V. Wilson, 238 Neweomen v. Hassard, 184 Newlands v. Paynter, 165 Newman, Be, 68 Newton v. Newton, 397, 398 O'Connor v. Spaioht, 211, 218 Oldham v. Hughes, 369 Ormond, Lady, v. Hutchinson, 192 OrreU v. Orrell, 284 Owens V. Dickenson, 174, 176 Oxford, Eari of, v. Sir J. Tyrell, 127 Pabburt v. Clarke, 277 Padwick v. Stanley, 205, 207 Palmer v. Newell, 310 Parker v. Dee, 201 II. Sowerby, 277 Parkin r. Seddons, 114 V. Thorold, 93 Parsons v. Baker, 40 Pascoe V. Swan, 98 Peacock v. Burt, 419 v. Monk, 185 Pemberton v. Barnes, 104 Penny v. Watts, 441, 450 Peters v. Soame, 109 Phillips V. Jones, 90 V. PhiUips, 203 Digitized by Microsoft® TABLE OF CASES. XIX PhilKps i\ Phillips, 391, 401, 408, 432, 433 Picard e. Hine, 175 Pickersgill v. Rodger, 271 Piggott 1!. Parson, 53 Pilcher v. Kawlins, 425, 430 Pinohin v. Simms, 315 Plunkett v. Lewis, 317 Policy V. Seymour, 329 PoUock V. Lester, 251 Pope v. Curl, 243 Portarlington, Lord, v. Soulby, ■22S Porter v. Lopes, 104 Pott v. Clegg, 207 Powjs V. Mansfield, 296 Preston v. Dania, 23 Pride v. Bubb, 187 Pridgeon v. Pridgeon, 161 Proudley v. Fielder, 182 Pulteney v. Darlington, 353 Purdew v. Jackson, 62 Pusey V. Pusey, 91, 456 Pybus r. Smith, 166 Pye, Ux parte, 293 Pym V. Lockyer, 305 ■QcEEs V. Carnatio Eauwat Coii- PANY, 57 ■Queensberry, Duke of, v, Shob- beare, 242 Rasolipfk r. Parktns, 277 Ravenscroft v. Jones, 300 Reade v. Conquest, 243 V. Lacy, 243 RendaU v. Rendall, 114 Reynolds v. Godlee, 350 Rich i: Whitfield, 329 Richards v. Attorney-General of Jamaica, 358 Ridley, la re, 169 Roberts v. Berry, 93 Robertson v. Lockie, 88 Robinson's Estate, 64 Robinson r. Wheelwright, 288 Rogers v. Jones, 271 V. Seale, 404 Rooke's Case, 29 Rooper v. JHarrison, 431 RoskeU V. Whitworth, 241, 251 Routledge v. Low, 234, 246 Rowe V. Gray, 104 Eumbold V. Rumbold, 281 Rusden v. Pope, 165 Rushout V. Rushout, 289 Russell i: St. Aubyn, 302 Ryle r. Haggle, 202 Saliseukt v. Salisbukt, 324 Sanky v. Goulding, 158 Saunders v. Dehew, 421, 428 V. Smith, 235 Schroder v. Schroder, 286 Scott V. Corporation of Liverpool, 211 r. Spashett, 61 Scudamore v. Scudamore, 327 Seeley v. Jago, 367, 376 Seymore v. Tresilian, 159 Sharp V. St. Sauveur, 384 Sharrod v. Loudon and North- Western Railway Company, 9 Shattook V. Shattock, 174, 177 Sheddon v. Goodrich, 279 Shepherd v. Churchill, 103 Shuttleworth r. Greaves, 274 Sisson V. Giles, 372, 379 Slade V. Barlow, 241 Smith V. Attorney-General, 129 v. Claxton, 349 V. Leveaux, 207 V. Tebbitt, 153 Soltau V. De Held, 248, 249, 251 Somerset, Duke of, ■v. Cookson, 9], 456 Southampton Dock Company v. Southampton Harbour and Pier Board, 217 South-Eastern Railway Comijany v. Brogden, 217 V. Martin, 214, 218 Speke V. Walrond, 101 Spencer v. London and Birmingham Railway Company, 251 Spencer, Karl, v. Peek, 136 Stackhouse v. Countess of Jersey, 399 Standering I!. Hall, 369 Stanhope v. Earl Verney, 389 Stanley v. Stanley, 288 Stead V. Nelson, 184 V. Preece, 365 Stocken v. Stocken, 316 Streatfield v. Streatfleld, 289 Strode V. Blackburne, 389, 397 Digitized by Microsoft® XX TABLE OF CASES. Stuart V. Kirkwall, 176 Sutton V. South -Eastern Kailway Company, 254 Swarin v. Fonnereau, 329 Sweetapple v. Bindon, 344 Taff Vale Eailwat Company e. Nixon, 212, 215 Taunton v. Morris, 61 Taylor, In re, 72 Taylor v. Meads, 186, 187 V. Plumer, 322 Thomas v. Thomas, 98 Thompson v. Burra, 277 • V. Robson, 122 V. Stanhope, 243 Thompson's Trusts, Ee, 346 Thynne, Lady Edward, v. Earl and Countess of Glengall, 302 Tichbome v. Tichborne, 114 Tidd V. Lister, 61 Tinsley v. Lacy, 243 Tolson V. Collins, 316 Toole V. Young, 243 Townend v. Toker, 450 Townley v. BedweU, 342 Townsh^nd Peerage Case, 130 Trench v. Harrison, 322 Trimmer v. Bayne, 315 Triquet v. Thornton, 378 Tuer V. Turner, 373 Tugman v. Hopkins, 180 TuUett V. Armstrong, 167, 171 Tiissaud's Estate, 302, 303, 309, 311 Underwood, He, 341 Unity, &c,. Association v. King, 110 Usticke V. Peters, 277 Vane v. Lord Barnard, 253 Vaughan v. Buck, 60 V. Fitzgerald, 135 V. Vanderstegen, 178 Veret v. Duprez, 114 Wainwkioht v. Hardistt, 184 Waldy V. Gray, 400 Walker v. Brewster, 237, 251 V. Smith, 76 Wall V. Wall, 288 Wallwyn v. Lee, 389, 395 Walrond v. Eosslyn, 380 Walsh V. Wason, 60 Walt«r V. Selfe, 251 Ward v. Arch, 334 Watkins v. Brent, 114 Watson V. Watson,, 300 Weall V. Eice, 310 Welch V. Knott, 245 Wellesley ii. Duke of Beaufort, 71 V. Wellesley, 72 Wells t!. Maxwell, 93 Wharton, Me, 360, 367 Wheeler v. Home, 199 Wheldale v. Partridge, 338 Whistler v. Webster, 264 Whitaker v. Kush, 108 Whittle V. Henning, 62 Whitworth v. Whyddon, 114 Wilcocks D.^Wilcocks, 318 Williams v. Archer, 90 Williams v. Lambe, 391, 403, 408, 432, 434, 459 Willoughby v. Willoughby, 423, 426, 431 Wintour v. Clifton, 277 Witham v. Waterhouse, 179 Withy V. Cottle, 92 Wodehouse v. Farebrother, 256 Wood V. Sutcliffe, 251 Woodmeston v. Walker, 169 Woodward v. Dowse, 97 Woolley V. Pole, 122 Worthington v. Wiginton, 289 Wortley v. Birkhead, 419 Wright V. Chard, 177 ■ V. Lord Maidstone, 80 V. Eoso, 339 i/. Tatham, 134 Yelverton v. Newport, 53 York, Mayor of, v. Pilkiagton, 138 Digitized by Microsoft® CONTENTS. LECTUEE I. PAGE General satdee and estext of Equity Jurisprudence. — Classification of the various heads of Equity . 1 LECTUEE IV. (a) Brief eevibtv of the principal heads op Equity Juris- prudence WHERE THE COURTS EXERCISE AN EXCLUSIVE Jurisdiction 35 LECTUEE V. Brief review of the principal heads of Equity Juris- prudence WHERE the Courts exercise a Concur- rent Jurisdiction 73 LECTUEE VI. Brief review op the principal heads of Equity Juris- prudence WHERE THE CoURTS EXERCISE AN AUXILIARY Jdrisdiction 112 (a) See note at page 35. Digitized by Microsoft® XXU CONTENTS. LECTUEE VII. PAGE The Wife's separate Estate considered as a par- ticular HEAD OP Exclusive Jurisdiction . . 155 LECTUEE VIII. Account considered as a head op Concurrent Juris- diction . . 188 LECTUEE IX. Injunction in cases where the Court exercises an Auxiliary Jurisdiction . .... 221 SUPPLEMENTARY LECTURES ON CERTAIN EQUITY DOCTRINES. Election .... . . . 259 Satispaction .291 Conversion (1st Lecture) . . 325 Conversion (2nd Lecture) 354 ON PURCHASE FOR VALUABLE CONSIDERATION WITHOUT NOTICE. Chapter I . . . ^„ - II ■.■.■.'.: 417 - m . . . . ,3, ^^ • .444 ~ T . . . . . ,53 Digitized by Microsoft® CONTENTS. XXlll APPENDICES. PAOE Appendix A. Appilgarth v. Sergeantson . . . 461 — B. HoiGGES V. Harry . ... 462 — C. DoDD V. Browing ' 464 — D. Form op Assignment of Dower by an Heir . 465 Digitized by Microsoft® Digitized by Microsoft® OUTLINES OF EQUITY. LECTURE I. Gentlemex, — 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 lectm-es of one hour each, and the vast range of the subject-matter, render condensation and selection alilie 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 dealing with particular heads of equity jurisdiction specially selected for consideration, the absence of a previous exposition of other heads closely connected with them must, I fear, occasionally lead to imperfect results. Nor is the general question, How to lecture usefully ? of easy solution (a). That lectures may be made an (a) The following otservations on the subject of oral teaching have lost their significance now that the voice has assumed the literal form ; but they are retained becauee it would be difficult to expunge them without breaking the thread of the discourse ; and possibly the reader may find them not altogether uninteresting. B ^ V Digitized by Microsoft® Vi LECTURE I. efficient auxiliary in legal training can hardly be 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 firmly riveted results in impressions firmly fixed. After reading text-books, which, however useful, commonly leave but faint reminiscences, the full re- port of a single case, with all its incidents, may fix itself, with the 'principle involved, indelibly on the memory. So after theoretical studj', in all its varieties, the perusal of a particular set of papers in practice, and the actual handling of the matter, will, for the fii'st 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. Again, 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, cceteris paribus, in proportion to its novelty, a greater prospect of fixing in our treacherous memories those principles which so readily 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 tJjan sound legal knowledge is required. The habit of rejecting Digitized by Microsoft® LECTURK I. 3 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 knowledge must be made the means and not the end, — the handmaid and not the mistress. Manj' 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 immediatelj' suggest various heads of legal dif&culty. You will then, perhaps, resort prematurelj' to your books, sift the law thoroughlj'^, and sitting down again, discover, to your mortification, some trifling fact which renders nugatory (so far at least as respects the matter in hand) j-our 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 Ithink " lectures " valuable. For, as compared with other means of instruction, it is obvious that they labour under some degree of disadvantage. Socrates, in the "Phaedrus," is represented as inge- niously showing the imperfection of instruction con- veyed by books, as compared with the oral instruction of the ancient philosophers. n 2 Digitized by Microsoft® i LECTURE I. He says : — " Writing is something like painting. ' The creatures of the latter art look very like living ' beings ; but if you ask them a question, they pre- ' serve 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 interrogate 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. " Plmdr.—Whui is it ? " Soc. — That which is written scientificallj'^ upon the " learner's mind. This is capable of defending itself, " and it can speak itself, or be silent, as it sees fit. " Phcedr. ^-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 fair- ness 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 (a) For a later translation of high authority, see Jowett's "Dialogues of Plato," vol. i. p. 611. Digitized by Microsoft® LECTUEE I. 5 may reqmre ; wliile the orally taught pn.pil, after he has retii'ed from the presence of his 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 lectm'er 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 ad- vantage is denied to him by the veiy nature of his calling ; the latter, in the case of public lecturers at least, by the number of his audience. The question still remains, "What can be usefully accomphshed by public lectures ? I should answer : that the first principles of any science may be intro- duced to the minds of the hearers more readily than by books merely ; that general conceptions of the subject- matter in hand may 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 quasi-'po'pula.v handling of the subject, the interest of the hearers may be awakened to search for themselves whether these things are so. In my own case I shall be perfectly satisfied if, by hearing my lectures, 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 (&). They will at once perceive how (a) The Equitable Jurisdiction of the Court of Chancery. (b) Story's Equity Jurisprudence, and Lewin on Trusts. Digitized by Microsoft® 6 LECTUEE I. largely I have entered into the labours of those who have gone before me ; but not, I can assure them, ■without labouring myself. Indeed, it is of the essence of legal study to take nothing for granted — to trace out laboriously to their original sources 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 capacitj^ 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 sj'stem itself; (2.) the functionaries by whom it is administered ; and (3.) the procedure by which they administer it. Without some general information on eacJi of these heads, it would obviously be impossible to pass to the more particular consideration of anj^ 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. WeU, then, the subject of my present lecture 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 {a) See "Table of Contents," wMcIi, as to the first nine Lectures was copied from the "Prospectus.'' Digitized by Microsoft® LECTUEE I. 7 of the word ? Not, of course, the equity referred to in Sacred Writ, as " equity and every good path." That is not to be ho])ed 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 grossty 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. | Equitj', in the technical sense, is therefore at the i utmost but a portion of equity or natural justice in the | larger sense. There aipe many duties, many obligations (imperfect they are commonly called), which no civi- lised coimtry attempts to enforce judicially. Between these and obligations which may be so enforced, there is a line of demarcation varying not verj"- 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 t he wh ole 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^f_law. Equity, techni- cally speaking, is that portion of equity in the larger sense, or natural justice, which, though of such a nature as to admit properly of its being judicially Digitized by Microsoft® b LECTURE I. enforced, was omitted to be enforced hj our common law courts — an omission which was su^Dplied 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 certain remedies, which the courts of law might have equally recognised and applied, but did not (a). 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, everj"- 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 Ivnow it still 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 (a) The Court of Chancery is by the Judicature Act, 1873, now merged into the Supreme Court, and though it is partially revived in the form of the Chancei-y Division of the High Court, all the other Divisions of the High Court are now bound to recognise equitable rights, and, subject to the arrangements for the distribution of business, made by the 34th section the Act, may equally apply equitable remedies. Digitized by Microsoft® LECTURE I. y had first to determine •wi.thin what class of wrong his case fell, and then applj"^ for the appropriate writ. The evil effects of this system of procedure were mainly two. First. Even where the facts were such as to bring the case of wrong within some one of the classes , already recognised as remediable at common law, the injured suitor was exposed to the risk of selecting an hngr^er writ, and failing in his action on that account. This, indeed, was a fertile source of injustice in com- mon law proceedings, even within the last few years ; ia fact, until the Common Law Procedure Act of 1852, which enacted " that it should not be necessary to men- " tion a ny 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- Wester 7i Raihcay 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 in (a) 15 & 16 Vict. cap. 76, s. 3. (i) 4 Exchequer R. 580. Digitized by Microsoft® 10 LECTURE I. 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 railwaj-, the remedy was by an action on the case fof causing the engine to be driven in such a way as to interfere with that right ; that if the cattle were altogether wrong-doers, there was no neglect or miscondnct for which the company were responsible ; but that if the cattle escaped through defect of fences which the company should have kept I up, their damage was consequent on that wrong, and I recoverable in an action on the case against the com- ! pany, for letting their fences be incomplete, or out of I 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 costty expedient of a second action. 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 akeady devoted too much time to the con- sideration of an evil attaching to the old common law i^rocedm'e, which, after all, is only indirectly Digitized by Microsoft® LECTUEE I. 11 connected with the subject of my present lecture, viz., Equity (a). 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 by writ, in the instances of those civil wrongs wliich did not fall distinctly within any ascertained common law class. After selecting his form of action, the plaintiff 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 I equally failed, had he sued in any other form. And j 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 (a) Rule 2 of the Schedule to the Judicature Act, 1S73, 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," would have revived, though 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 Rides of the Supreme Court, 1875, have neutralized this objectionable requirement by providing that in the indorsement " it shall "not be essential to set forth the precise ground of complaint or the pre- ' ' cise remedy or relief, " and by conferring a power to amend the indorse- ment, " so aa to extend it to any other cause of action, or any additional ' ' remedy or relief, " see Order III. rule 2. Digitized by Microsoft® 12 LECTURE I. thirteenth year 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- , eery ; though at a later date the common law courts I contrived practically to dispense with the necessity for I suing out these original writs. The drawing up of i these writs was part of the business of the clerks (better known afterwards as the MastCTS^m_Chanceiy. An attempt was made to mitigate the latter of the 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 " shaU. agree m 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 Parhament, 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. Tlie 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- (a) 13 Edward I. stat. 1, cap. 24. Digitized by Microsoft® LECTURE I. 13 ragement to them to make any attempt to frame new writs, since the common law com'ts 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 c^mmonjaw judges, and have been treated as invalid. The Act, therefore, remained, to a considerable extent, a dead letter ; and, but for some interposition, 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 fallmg short in the administration of justice, those who suffered wrongs for which the common law afforded no redress appHed 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 framing 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 (a) Bl. Com. vol. iii. 183, 184. Digitized by Microsoft® 14 LECTURE I. any concise general definition. To convey an accurate notion of the nature and extent of equityjurisprudence, 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 will observe wide differ- ences of opinion amongst the most eminent jurists respecting the prineijjles upon which equity interposes — differences which can be accounted for only by ad- 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 j •' Fonblanque on Equity," and the earlier theoretical ; writers, attributing to the equity jurisdiction far larger I and more uncontrolled powers than later writers have ; been willing or able to recognise. Lord Bacon, for instance, in his "De Augmentis Scientiarum," liber 8, aphorism 35, 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 " prffitorife potestatem tam subveniendi contra rigorem " legis quam__supplendi defectuviiegis." And there can, I think, be no doubt that the early foundations of our equity system were laid by chancellors who assumed 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 into something like shape and proportion, have denied the existence of those larger principles of jurisdiction. Sir William Black- Digitized by Microsoft® LECTUEE I. 15 stone observes, — " In the first place it is said, that it i " 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 creatio n of the equity system, principles of jurisdic- tion as extensive as those enunciated by Lord Bacon were absolutely necessarj^ ; for the mere development of it, more moderate powers Avere 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 merety in developmg heads of equity already founded, but in pruning the luxuriance of the earlier jurisdiction (&). (a) Bl. Com. vol. iii. 430. (S) At the time of the passing of the Judicature Act, 1873, it was argued, not without force, that the tendency of the fusion effected by that Act must be to arrest the fair natural development of Equity Rules and Doctrines, by committing the exposition and application of them to Judges unfamiliar with them. The apprehension on this head has not as yet been realised, but the limited time which has elapsed since the Act came into operation, and the fact that the distribution of business under it is liable at any time to modification, seem to make any positive expression of opinion on the subject premature. The danger, however (if any), must, it is conceived, lessen every year. Digitized by Microsoft® 16 LECTURE I. In illustration of this position, let me turn to the book which I now take up, and which contains the most authentic information we possess respecting the early proceedings in Chancery. It is the first volume, " Calendars in Chancery of Queen EHzabeth," printed by order of the Eeeord 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 obtaia redress, in consequence of the maintenance and protection afforded to his adversary by some powerful baron, or by the sheriff, or by some officer 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 eqtiitable 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 id). (a) The following cases -were then read : — Istly, p. XX. — "Kymburley v. (Jolclsmlth. A common case of action for non-delivery of woad. " Digitized by Microsoft® LECTUEE I. 17 But, in truth, vre find considerable inaccuracy of opinion, respecting the true functions of equity, pre- TaiHng at a much later date than that of these prece- dents. Thus, the celebrated confidential adviser of Henry the Seventh, Ai-chbishop Morton (a), appears, according to a report in the Year-Books, to have de- nied even the distinction between " te chnical ej [uity " and " equity in the sense of natural justice." The report of the case, which is noticed by both Mr. Spence and Lord Campbell, is rather cm-ious. 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 against 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 pointing out accurately the distinctions 2clly, p. xli. — "Appilgarth, widow, v. Sergeantson. Bill complaining that defendant, having obtained 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 by plaintiff, an attorney, to restrain the defendant, u priest, from practising witchcraft against him." See this case. Appendix B. The two first cases obviously present no ground for equitable inter- position. The third, viewing witchcraft as a reality, was in substance a biU for protection against a criminal outrage, a species of suit wholly inadmissible at the present day. (a) Bacon, in his Essay on Counsel, says that Henry the Seventh, in his greatest business, imparted himself to none except Morton and Fox. Digitized by Microsoft® 18 n^ECTUKE I. between law, equity, and reKgion. But the Chancellor retorts : " Sir, I know that every law is, or ought to " be, according to the law of God " (ignoring thus altogether any distinction 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 in hell." And then the Chan- cellor proceeds to lay down some rather unsoimd 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 jurisdiction of the Com't of Chancery (b). 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. (a) Year Book, i Henry VII. fo. 5. (6) Spence's Equitable Jurisdiction, to], i. p, 684. Digitized by Microsoft® LECTUKE I. 19 But some faint general notion of the functions and limits of equity may perhaps be conveyed by enunciat- ing, 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 mthout a remedy. This is the chief root of our equity jurisdiction. You have akeady seen the over-luxuriance of the earlier shoots which sprang fi-om it. The only limit, indeed, to its creative power, is the barrier interposed between itself and that portion of natural justice which, as already indicated, falls within the province of morals and religion only. To this maxim, for instance, we owe our vast system of uses and trusts. Yoa are probably aware that, 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 grownup (under circumstances which time does not permit me to detail) of the legal owners of lands conveying them^tHrd_parties, who undertook to hold them for certain uses. The common law courts steadfastly refused to recognise in any way the engagements entered into by those (feoffees to uses, as they were called) to whom the land (a) The Calendars of Proceedings, vol. i. ' c 2 Digitized by Microsoft® 20 LECTUEE I. had been so conveyed [a). The chancellors, on the [ other hand, held that these engagements were binding i on the consciences of the feoffees to uses, and that they j (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 entkety of equity jurisdiction. Tliis 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 (a) This is well illustrated by the general immunity of trustees from criminal liahility at common law in respect of breaches of trust, whether fraudulent or quasi-felonious. Until quite recently (1857) an ordinary trustee of (say) 30, 0001. 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, &c. 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 yoxir 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 ? " "Yes, 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 ? " " No, sir," answered the Justice, " a breach of trust is no crime in our aw, unless it be in a servant ; and then the Act of Parliament requires the goods taken to be of the value of forty shillings," Digitized by Microsoft® LECTURE I. 21 date. Let me read to you from the volume before me one of the earliest pubhshed instances of a resort to equitj"^ 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 amomit 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 : — " Tarry a little ; — there is something else. — This bond doth give thee here no jot of blood ; The words expressly are, a pound of flesh: Take then thy bond, take thou thy pound of flesh ; But, in the cutting 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- (a) The case of Dodd v. Browing, Appendix C, was then read. Digitized by Microsoft® 22 LECTUEE I. 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 jiiice, 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 1 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 the Third J and Anne,whentheLegislature 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 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 bill iu 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 J the spirit, not the letter ; that in substance the bond I was intended as a security merely ; that the precise day j of payment was immaterial. To the same maxim also is to be refeiTed the equity (a) See 8 & 9 Will. III. cap. 11, s. 8 ; 4 & 5 Anne, cap. 16, ss. 12, 13. Digitized by Microsoft® LECTURE I. 23 jurisdiction in allowing the redemption of mortgaged lands after the day stipulated by the contract. You are aware, dovibtless, 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 reconveyed 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- cery, on the other hand, looking to the spirit of the transaction, held that the land was, in substance, a pledge mer ely, 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 principal and iaterest 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 ordinaiy money bond, for example, must, in its earliest use, have been meant to represent the true contract between the parties, and, if deliberately entered iuto, no valid ground for interference seems to exist (a). (a) In Preston v. Dania, L. K. 8 Erch. 19, Bramwell, B. , thus expresses Digitized by Microsoft® 24 LECTURE I. 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 1 parties) came to be used merely as a convenient form I 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 originallj' from the interposition of ( the court in cases where accident in allowing the day : of payment to pass by, or some other circumstance of I hardship, induced the equity judge to mitigate the 1 literal rigour of the contract (a). 8. 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 compen sation." The aim of the equity com-ts was to make the defaulter do what was right. The thing to be 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 himself on this point : ' ' Look for a moment at the history of these bonds. " Originally the penal sum mentioned in them was recoverable. Then the "Courts of Equity, unfortunately as I think, established a practice of "relieTing the obligor from payment of the penalty — of relieving him, "that is to say, from the obligation of doing what he had contracted to "do." {a) See ^pence's Equitable Jurisd. vol. i. p. 623 — 630. Digitized by Microsoft® LECTURE I. 25 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 specificallj', as we [ say — and justice was satisfied. Hence, again, proceeded the vast jurisdiction by injunction («), assumed, and after many a struggle suc- cessfully maintained, by equity — a jurisdiction which practically conferred on the equity courts the power of modifying the efiect 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 Com't of Equitj% 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 Equity Court, if it agreed in this view, simply ordered the plaintiffajthiwjiot to sue, and put him in prison if he persisted. Hence, again, the equity jurisdiction, even where the property in 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 Htigant ; the Court saying to the executor, or other person bound to distribute the property, — " You {a) Now atolislied ; see Judicature Act, 1873, sect. 21, sub-sect. 5; though the statutory power of the Court of Bankruptcy and of the County Courts sitting in bankruptcy to restrain proceedings in other Courts, is unaffected by tlie Act ; see Ex parte Ditton, 1 Ch. D. 657. Digitized by Microsoft® 26 LECTURE I. " ought to distribute according to the true equitable I " rights, and we ivill order you to do so. Meanwhile, ! " until the rights are ascertained, you shaU pay the " money into the bank for safe keeping." 4. To pass to the last maxim mentioned, " Equity follows the Law " (a). 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 — c onforming _toJ.ts general rules and policy, whether contained in the common or in the statute law. Perhaps one of the best instances of the apphcation of the maxim in this first sense is afforded by the decision of Lord Talbot, in the case oi Heard v. Stamford (b). You are aware that, if a man marry a woman who is indebted, he thereby makes himself liable at law for all her debts. He may be sued immediately after marriage (c). But this liability {a) The Judicature Act, 1873, sect. 24, subsect. 11, proTidea that in case of conflict or variance hetween the rules of Equity, and the rules of the Common Law, with reference to the same matter, the rules of Equity- shall prevail ; but this provision, it is conceived, does not affect the opera- tion of the maxim discussed in the text. (6) Cases Temp. Talbot, 173. (c) As to women married after August 9th, 1870, the law was altered by the Married Women's Property Act (33 & 34 Vict. c. 93), the 12th section of which enacts as follows : — "A husband shall not, by reason of any ' ' marriage which shall 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 Digitized by Microsoft® LECTUEE I. 27 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 marriage brought a large fortune to her husband, and then died. It was contended that the husband, having received her fortune, was hable, in equity (though not at law), to pay her debts contracted before coverture. But the Lord Chancellor held otherwise, saying, " There are instances, indeed, in which a com-t of Act, of V.-C. Malins (Chubb v. Stretcli, L. R. 9 Kq. 555), 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 provisions 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 I 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 Vict. u. 50) was 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, j the husband will be liable to the extent of the various descriptions of 1 property specified in the Act as being assets, being in substance the pro- j party derived by him through his wife, or transferred by her in contempla- 1 tion 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. Digitized by Microsoft® 28 LECTURE I. " equity gives a remedy, where the law gives none ; " but where a particular remedy is .given by the law, ^ " and that 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 applying to equitable estates and interests the same rules by which at common law legal estates and in- terests of a similar kmd are governed. Thus, Equity having first, by the exercise of its creative power, called into existence the system 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 quality of the corresponding legal estates. Thus a use infee de- scended according to the same rule, the husband was entitled to curtesy under the same circumstances, and so on, as in the case of the legal fee. There was an anomaly iir 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 Co;ivpcr \._Cqwper (a), in which case he decided (most 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 {a) 2 Peere Williams, 720. The particular passage extracted will be found at p. 752. Digitized by Microsoft® LECTUEE I. 29 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 follow * " it in their judgments concerning titles to equitable i " estates ; otherwise great uncertainty and confusion i " would ensue ; and though proceedings in equity are " said to be secundum discretionem honi viri (b), yet " when it is asked, vir bonus est quis ? the answer is, " qui consulta patntm 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 relieves against the abuse, or allays " 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 " nor any other court, not even the highest, acting in " a judicial capacity, is by the constitution entrusted " with." Having now pointed out to you what I consider to have been the origin of our equity jurisprudence — (a) For the modem alteration in the law respecting descent to the half- Mood, see 3 & 4 W. lY. cap. 106, o. 9. (J) See Bacon, "De Augmentis," lib. viii. aph. 32, where, speaking of the curiae praetorise, he says, " Quas statunnt ex arbitrio boni viri." Digitized by Microsoft® 30 LECTURE I. having shown, as I conceive, the impossibility of defining I 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 equity — 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 " Eemedial Equity," "Executive Equity," "Adjustive Equity," " Protective Equity," and "'Auxiliary Equity." This arrangement of the subject is, however, so purely scien- 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 Digitized by Microsoft® LECTUEE I. 31 concurrent with that of the common law courts ; under the thii'd, 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 in 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 relief. Within the second? — then the relief in equity was probably more perfect, more convenient. Within 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. 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 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 (a). For my own part, without wishing (a) The practical question now is whether the action is one which should he brought in the Chancery Division of the High Court, or whether the suitor has an option. The 34th section of the Judicature Act, 1873, while assigning to the Chancery Diyision of the High Court all matters in which the Court of Chancery had exclusive jurisdiction by statute, makes no similar assignment to that division of matters in which the Court of Chancery had exclusive jurisdiction otherwise than by statute. It assigns to the Chancery Division various specially mentioned heads of non-statu- tory jurisdiction ; and as to matters not so mentioned, the suitor, by Digitized by Microsoft® 32 LECTURE I. 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 in 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 administratiYe, 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 frequently overlooked, and in some cases, I fear, wil- fully put out of sight. section 35, repealed by the Judicature Act, 1875, but , re-enacted in sub- stance by section 11 of that Act, may select either the Chancery Diyision or one of the Common Law Divisions, Digitized by Microsoft® LECTUEE I. 33 Chancery suits for the administration of property beqvieathed 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 well-known, talented author the notion that Chancery martyrs still exist, and that Chancery is not a mere ordinary Circumlocution Office (to adopt the author's phrase), but circumlo- 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 different 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. I regret it extremely. The importance of studying the jurisprudence of equity historically, has, I think, hardly been appreciated. I spoke at the outset of the advan- tage of varying your modes of learning ; let me recom- D Digitized by Microsoft® 34 LECTURE I. mend, as a mode of acquiring a knowledge of equity, one whicli I believe you will find both interesting and profitable. 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 information 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 com- bination of history, biography, and equity impart a new zest to your studies. Digitized by Microsoft® LECTUEE IV. (a) The task to be performed, or at least attempted, by me in this lecture, is to give a "brief review of those heads of equity jurisprudence, in which the court exer- cises an exclusive jurisdiction." These words are, perhaps, not altogether free from ambiguity, and seem to need some slight elucidation at the outset. "Whenever courts of equity deal with equitable rights whoUy unrecognised by courts of law, then, without doubt, the jurisdiction is exclusive. But there are cases in which, though the right is recognised equally by the court of law and' by the court of equity, the latter court alone affords an adequate remedy ; while the class of cases being frequently de- scribed by the name of the particular equitable remedy, it might seem at first sight to constitute a head of exclusive equitable jurisdiction. (a) Lecture II. containing an account of the general history and con- stitution of the Courts by which Equity jurisprudence was administered at the time when the Lectures were delivered, and Lecture III. containing a general outline of a suit in Equity, are omitted, as not possessing sufficient interest to warrant their retention since the alterations introduced by the Judicature Acts, 1873 and 1875. D 2 Digitized by Microsoft® 36 LECTUEE rv. Thus, take " s pecific performanc e." To enforce the performance "in specie " of certain classes of contracts belongs to courts of equity only. Specific performance, therefore, might appear to be a head of exclusive jiiris- diction m equity. On the other hand, however, it is perfectly clear, that where a contract has been entered into of a class conferring a right to specific performance in equity, the courts of law recognise the mere right to a performance of a contract, just as much as the court of equity. The real difference consists in the remedy appHed. The court of law, upon the right being with- held, merely says : "The contract has been broken, and " we will give the injured party damages." The court of equity says : " The injured party has a right, if he so " prefer, to treat the contract as subsisting, and to insist " on its being actually performed." So far, therefore, as respects rights under the contract, the court of equity has concurrent jurisdiction only. What it does is, to afford a remedy peculiarly and ekclusively its own ; which, in certain cases, is the only satisfac- tory one. Assume as an illustration, the ordinary instance of a contract for sale of land and deposit paid by the pur- chaser. Either the purchaser or the vendor may sue, cither in equity for specific performance, or at law for breach of the contract. To the purchaser who wants the land, an action at law would be useless ; while the remedy in equity is all-sufficient. The vendor, on the other hand, should there be a clause forfeiting the deposit in the events which have happened, may find it to be for his interest to treat the contract as a broken Digitized by Microsoft® LECTUEE IV. 37 and not a subsisting contract, retaining the deposit as forfeited, and suing at law, if need be, for any damages whicb he may have sustained by reason of its breach. Thus the jurisdiction, in reference to the contract and to the rights of the parties thereunder, is really con- current only. It is, perhaps, of no very great importance whether we treat specific performance and analogous heads of equity jurisdiction as falling within the exclusive or the concurrent jurisdiction of the court, provided our conceptions respecting them be really accurate; but I would state, for the sake of clearness, that I pro- pose including them under the division of concurrent jurisdiction. I would add further, that partition being historically, though not in fact now, a head of concur- rent jurisdiction, it wUl be treated of under that title. Excluding, then, the heads of jmisdiction adverted to, the instances in which courts of equity exercise an exclusive jurisdiction strictly speaking, will be found to fall generally within one of the two foUowing branches : — First — where the courts of equity recognise some jight wholly ignored by the common law, such as the rights of parties claiming under deeds or instruments of trust. , Secondly — (and I may observe that this division is far less extensive in its range than the former) — where a special exclusive and quasi paternal jurisdiction is exercised for the protection of persons under disability, such as infants and lunatics. Digitized by Microsoft® 38 LECTURE IV. Under the first of these branches, we may range the following four subdivisions (a) : — 1. Trusts generally. 2. Administration of estates of testators and rates- tates. 3. The equitable jurisdiction in reference to the pro- perty of married women. 4. The equitable jurisdiction in reference to mort- gages, penalties, and forfeitures. To avoid misconception, let me say that I exclude purposely the jurisdiction of the Court of Chancery ia reference to charities, for want of time at least, if not for other reasons. The first of these four divisions, viz., " Trusts," constitutes by itself by far the largest and most impor- tant head of equity jurisdiction. Indeed, either to this subdivision or to the second, viz., "Administration of estates of testators and intestates," may be referred almost the entirety of the vast administrative business of the Court of Chancery, the distinction between which and the litigious business has been abeady pointed out or alluded to. But besides being the most important head of equity, it is one of the most ancient ; and, acting on the con- victions expressed in my first lecture, respecting the (a) Section Si of the Judicature Act, 1873, assigns to the Cihancery Division of the High Court {inter alia), "The execution of trusts, chari- table or private " [same as siih-division 1]. ' ' The administration of the estates of deceased persons " [savic as sub- division 2]. '•' The redemption or foreclosure of mortgages " [nearly corresponding to sub-division 4]. Digitized by Microsoft® LECTUEE IV. 39 importance of a historical treatment of equity juris- prudence, I propose giving a short account of the origin and rise of trusts. Now, the notion of a use or trust is one with which you are probably so familiar that but little explanation is needed. It involves the supposition of land or other property being legally vested in a feoffee to uses, or trustee, upon confidence that he wiH deal with it according to the directions of some other person who is beneficially entitled, the cestui que use or cestui que trust. In the period preceding the statute of uses, the modus operandi, in reference to land, was to execute a feoffment to some five or six persons, commonly called feoffees to uses. More frequently than not, so far as can be judged from the old cases, there was no written evidence of the uses upon which the feoffees were to hold the lands ; indeed, there can be no doubt whatever that, in the early origin of uses and trusts, the convey- ing party did not suppose he was imposing anything more than a merely honourable obligation upon those whom he trusted with his property. This honourable obligation our early ecclesiastical chancellors, blending doubtless to some extent their functions as spiritual guides and directors of the community with their powers as high State of&ciais, converted, as has been explained, into what is now a recognised equitable liability. At the present day, when the word " trust " has become a term of art, it is difficult to recognise in its now technical meaning the more popular sense Digitized by Microsoft® 40 LECTUEE IV. in which the •word was originally used. We shall find, however, the clearest evidence that a mere con- fidence in the honour and good faith of the trustee was, and still is, sufficient to create a trust, if we turn to the class of authorities in which words amounting to no more have been held adequate for that purpose. The caseK on this point, which are legion, are well collected in Mr. Lewin's work on the Law of Trusts (a), but two instances will be sufficient for illustration. Thus, in Parsons v. Baker (h), a devise to a nephew in fee, " not doubting, in case he should have no child, but " that he will dispose and give my said real estate, &c.," was held to create a technical trust. And in Macnah V. Wliithread (c), where the gift was to a person, in the full assurance and confdent hope that he would make a particular disposition, the present Master of the Rolls expressed his opinion that the words used would have been sufficient to constitute a trust, though for ether reasons no trust was established. In fact, if the subject- matter, the property, be clearly defined, and the objects of bounty clearly pointed out, almost any words of intention are sufficient to create a trust. They may be words which, as in the cases just referred to, leave no doubt whatever on the reader's mind, that the matter was to be left to the honour of the persons to whom the property is given ; and yet there will be a trust. (a) Third edition, pages 167, 168. Fourth edition, pages 100, 101. Fifth edition, pages 104, 105. Sixth edition, pages 115, 116. (b) 18 Vesey, 476. (c) 17 Beav. 299. Digitized by Microsoft® LECTURE IV. 41 In truth, to exclude tlie creation of a trust, where sub- ject and objects are alilve certain, it is ahnost necessary that the donor should say, in so many words, that he intends to leave the matter to the honour or discretion merely of the donee of the property, and not to impose any legal or equitable obligation {cl). In reference to the first causes of the introduction of uses and trusts, you are probably aware that the origin of uses is commonly ascribed to the endeavours of the ecclesiastics to evade the statutes of mortmain. It is said that the statutes of Edward I. having forbidden the grant of land to rehgious houses directly, it was con- ceived that the law could be evaded by grants to feoffees for the benefit of those houses ; and probably the com- monly received opinion is correct. The Statute Book, at aU events, contains clear evidence that feofEtaents to uses were, in point of fact, adopted for the purpose of evading the law in this respect. Thus, by the 15th Eic. II. c. 5, all those who were possessed, by feoff- ment or by other manner, to the use of rehgious people, of lands, were directed to amortise the said lands {i.e. to convey them in mortmain), with the licence of the {d) The case of Huskisson v. Bridge, 4 De Gex & Smale, 245 (in which a testator, after bequeathing his residuary estate to his wife, and express- ing clearly and distinctly his wishes respecting the disposition thereof, con- cluded by saying that it was not his intention to deprive her of the exercise of the entire right over the property), wiU be found to afiford an apt illus- tration of the exclusion of a trust, by words evincing an intention not to create one. And see Fox v. Fox, 27 Beavan, 301, Eaton, v. Watts, L. K. 4 Eq. 151. The statement in the text may perhaps be considered too strong. It is sufficient if, upon a fair consideration of the words used, the intention appears to be to leave the matter to the discretion of the donee. Digitized by Microsoft® 42 LECTUEE IV. king, and of the lords of the fee, within a given time, or to convey them away to some other use ; and similar purchases to uses were made void for the future. But although the origin of uses may have heen the desire to evade the statutes of mortmain, we must (since by the statute just cited the desire was so early frustrated) seek for other causes to account for the perpetuation of the system of uses. And these may be said to have been mainly four, viz. : — First. By a feoffment to uses, the cestui que use acquired a power of devising his lands by will, and of dealing generally with the equitable ownership more easily and more arbitrarily than he could have done with the legal. Secondly. In the event of his attainder the land was not forfeited, nor did it escheat. Thirdly. The cestui que use escaped the oppressive incidents of feudal tenure. Fourthly. The use was not liable to be extended on an execution. As to the first cause, you must recollect that, pre- viously to the time of Henry VIII. (a), the legal interest in land could not, except as regarded terms of years, be devised by will. There was in some b oroug hs a special power of devising by custom, as was also the case with the lands in Kent ; but the quantity of land so devisable was insignificant as compared with the total extent of the kingdom, and may be laid out of account. Hence a man might have large property, far more than enough (a) See 32jHenry VIII. cap. 1 ; and 34 Henry YIII. cap. 5. Digitized by Microsoft® LECTURE IV. 43 to provide for two sons, or his eldest son might be a spendthrift, or -worse ; still, so long as the legal interest remained in himself, he had no means of preventing his property from passing at his death to his natural heir. But the com-t of equity held that, where the legal estate had been conveyed to feoffees, the use was devisable ; and thus, by putting the land in use, an absolute power of testamentary disposition was acquired. Again, at the period of which we are now speaking, the legal interest in the land could be conveyed only in a formal notorious manner by livery of seisin ; that is to say, in the ordinary case the conveying party executed a deed of feoffment, and then openly, on the land itself, delivered seisin to the feoffee, by handing to him a clod, a piece of turf, or a twig, with words showing that the delivery so made was symboKcal of the dehvery of the whole property. But where the land had been conveyed to uses, the cestui que use might deal with the beneficial interest by an entirely secret deed or instrument, without any livery. Again, the nature of the interests which the common law allowed to be carved out of the legal estate was limited and restricted. Thus a fee could not be mounted upon a fee, nor could an estate of freehold be made to commence at a future time. The owner of the use was subject to no such restrictions in deal- ing with it. The inducements, therefore, to put lands in " use," in order to obtain larger powers of disposition, were immense. Secondly, the use was not, until the reign of Digitized by Microsoft® 44 LECTURE IV. Hemy VIII., forfeitable for the offence of a cestui que use, nor did it escheat in the event of the attainder, though the land itself was liable to be forfeited, or to escheat in the event of the attainder of the feoffee to uses. The natural result was, that in troublous times, Hke those of the last Edward and Henry VII., men who took an active part in political movements vested their lands in feoffees of their own selection, known from their character to be httle likely to expose the property to forfeiture or escheat. Thirdly, by putting the land in use, the burdens of the feudal law were evaded. You will find a most able exposition of the nature and character of these burdens in Sir W. Blackstone's Commentaries (a). It wiU be sufficient for my purpose if I remind you merely of tvardship and marriage. The former feudal incident entitled the lord, where a tenant holding by knight's service died leaving an infant heir, to enter upon the possession of the heir's lands ; and, subject to his main- tenance, to take the whole rents and profits dm"ing minority. The latter incident allowed the lord to sell the right of marrying his ward, subject to the only restriction that the marriage was not to be a disparag- ing one ; and if the ward refused to accept the marriage offered, he was heavily mulcted. Desire of escape from the hardships of feudal tenm-e would seem almost alone to have been a sufiicient reason for resorting to the practices of uses. Fourthly, where a debtor was legally entitled, the (a) Book II., chapter t. Digitized by Microsoft® LECTURE IV. 45 creditor was able to extend, under an elegit, a moiety of the land, and take the rents and profits in satisfaction of his debt. He had no such power in regard to the use. There was, therefore, the strongest temptation to every fraudulently disposed debtor — a class whom it is too much the fashion to consider as of purely recent origin — to put his land in use. In the process of explaining to you the principal causes which led to the establishment of the system of uses, I have already pointed out most of the incidents and features of the use. Some few remarks may, how- ever, be added. It has already been mentioned that the use was trans- ferable ; and you will have inferred, as of course, that in the absence of any disposition it descended as the legal interest would have done, though it was not held liable to curtesy or dower. Whether the rights of the cestui que use were enforceable against th e ori ginal feoifee only, or also against those deriving legal title under him, was a point upon which different views were held at different periods of the history of uses, there being a gradual tendency in advancing ages towards more liberal doctrines on this head in favour of the cestui que use. In the reign of Edward IV., for instance, it was con- sidered, that if the feoifee to uses died or aliened, the cestui que use had no remedy against the heir or the alienee. Thus, in a case reported in the Year Book, 8 Edward IV., folio 6, after a considerable discussion, whether a subpoena would lie against one only of several executors separately (the court held it would not), the case proceeds thus : — " Et fuit move si Digitized by Microsoft® 46 LECTURE IV. 1 " subpoena gist vers executor ou en vers un heir. Et I " Choke dit que il sua auterfoits subpoena vers le heir " de son feoifee et le mater fuit longmt debate. Et ' " I'opinion de la Chancerie et les justices que il ne gist " pas envs le heire, per que il sua un bill al Parlia- " ment," &c. And then Fairfax (one of the justices) says, with characteristic legal relish, " C'est matter " est hon store ;pur disputer apres qioant les auters " veignt" (a). It is stated in Bacon's Abridgment (b), that the sub- poena against the heir was first allowed in Henry VI.'s time ; the law on this point being changed by Fortescue, C. J., but no reported case is referred to. "We find, however, traces of more liberal doctrines in Keilway's Reports, in the reign of Henry VII. (c), and in a great case in the Year Book, M. T. 14th Henry VIII. (d), although the judges differed in opinion upon other points, they seem to have agreed that, as a general rule, subpoena lay against both the heir and the alienee of the feoffee (e). (a) See tlie same views treated still more clearly as sound law, in a case in the Year Book, 22 Edward IV. fol. 6. (6) Vol. viii. p. 176 ; Uses and Trusts (B), 1. (c) 42 pi. 6, 46 pi. 2. (d) pi. 5. (e) Part of the reasoning of Fitzherbert for holding the alienee of the feoifee to be bound is so well put and so quaintly illustrated, that I am induced to transcribe it. It is as follows : — "Car si jeo infeffe B. a aTer " a lui et ses heirs et assigns ; or mon trust et confidence est in lui in ' ' ses heirs et assigns ; et ceo est prove bien, car les heirs serout liez de " performer 1' volonte le feoffer si bien come son pere, et issint le second "feffee si bien come le premier, si ne soit consideration, et issint est si " les feffees souffrent un recovere sans consideration : car sera entend par " Ley en tant or que sans considei-ation il departe ove Vterre in que Ufuit Digitized by Microsoft® LECTURE rv. 47 The use being then such as it has been described to you, and the inducements to put land in use such as have been pointed out, the result was a large and graduallj^ increasing quantity of land held in use : and the effects of the system have been thus graphically described in an oft-quoted passage of Lord Bacon : " A " man that had cause to sue for his land, knew not " against whom to bring his action, nor who was the " owner of it. The wife was defrauded of her thirds ; " the husband of being tenant by courtesy, the lord of " his wardship, relief, heriot, and escheat ; the cre- "ditor of his extent for debt ; the poor tenant of his "lease "(a). It was not to be expected that this state of things should be quietly submitted to. Accordingly, on refer- ence to the Statute Book, we find a continual struggle going on against the system, or rather against its injurious results, which have just 'been mentioned. The efforts of the Crown and Legislature appear, in' the first instance, to have been directed towards fixing the cestui que use with all the liabilities of the legal ownership. Thus, various statutes were passed in the reigns of Edw. III., Richard II., and Henry VII. (h), " seisi aV use, qu'il dtparte ore ceo in le plus due forme il peut, s. come il ' ' ceo avoit adevant. Car ou wn act rest in entendment et indifferent la " Ley adjuffera le mieux: car sijeo voy «» Prestre et une feme insemhlc " suspeceoneuaement, uncore si longement que ilest in douht que Ufait Ken " ou mal, covient entender le mdieur.'' (a) The Use of the Law, Bacon's Works. Edition by B. Montagu, toI. xui. p. 240. (J) 50 Edward III. cap. 6; 2 Richard II. stat. 2. cap. 3; 19 Henry VII. cap. 15. (All repealed by the Statute Law Revision Act, 1863, as having become obsolete or unnecessary. ) Digitized by Microsoft® 48 LECTUEE IV. rendering the use liable to be extended ; and in the first year of the reign of Pdchard III. the cestui que use was empowered to alien the land as against his feoffee {a). In Henry VII.'s reign, the right of ward- ship was given to the lord over the heir of cestui que use, leaving, however, the right of testamentary disposition untouched {h) ; and by an act of the reign of Henry VIII. the use was made forfeitable for treason (c). But these efforts, though, as the event proved, they were made in the right direction, were insufficient to satisfy the Crown ; and towards the latter part of his reign, a new and great attempt was made by Henry VIII. to abolish uses altogether ; and this, by proceeding upon an entirely different plan, viz. by turning the equitable uses into legal estates at law. This was the " modus operandi," or rather the intended " modus operandi," of the famous Statute of Uses (d). You know how it failed. The courts held, that if a man enfeoffed A and his heirs, to the use of B and his heirs, in trust for C (a) 1 Eiichaxd III. cap. 1. (Repealed by the Statute Law Eevision Act, 1863.) (h) Tiie epitome of this statute, 4 Henry Til. cap. 17, given in Euff- head's edition, contains no allusion to this reservation of the testamentary right. In the Edition of Statutes published by the Record Commission, the Act is given at length, and the right of wardship is conferred only in the ease of "no will by him declared nor made in his lyfe touckinff the premisses or any of theym. " (The statute was repealed by the Statute Law Revision Act, 1863.) (c) 26 Henry YIII. cap. 13, s. 5. (Now repealed by the Statute Law Eevision Act, 1863, leaving, however, the 33 Henry YIII. cap. 20, s. 3, in force.) (d) 27 Henry Vm. cap. 10. Digitized by Microsoft® LECTUEE IV. 49 and his heii-s ; the statute turned the first use, viz. that in favour of B, into a legal estate, leaving B a trustee for C. Thus, two unexpected results flowed from the statute, viz. : — 1. Facilities were afforded for creating through the medium of it a variety of legal estates iinknown to the common law. 2. The system of uses revived, with a new and more healthful vigour, under the name of trusts. I say revived with new and more healthful vigour, because, although it was held that the various statutes enacted respecting the use anterior to the Statute of Uses itself did not apply to the trust ; yet, partly by judicial deci- sion and partly by statutory enactment, the trust was gradually, though not without a struggle, by the end of the reign of Charles II. placed upon a similar, though more liberal and more satisfactory footing than the old use. Thus the trust descended like the legal interest, and was alienable, though, by a wise provision of the Statute of Frauds (a), not without writing. The heir or alienee might sue for its performance. It was subject to curtesy; and, by the Statute of Frauds, was made liable to execution (b). The trustee and his heir or alienee (except an alienee without notice of the trust) were alike subject to be sued in equity ; and even the widow of the trustee, who be- came legally entitled to dower, and the husband of the female trustee, in respect of his legal estate h} the curtesy, were held bound to perform the trust.; (a) 29 Car. II. cap. 3, ». 9. (b) Ibidem, a. 10. Digitized by Microsoft® 50 LECTURE IV. The only anomaly of importance was the exception lately removed (a), viz. : — that the eqiiitable estate conferred no right of dower on the wife of the equitable owner. I proceed now to the second subdivision under my first head, viz.: — "Administration of estates of " testators and intestates." It is by no means clear that the jurisdiction of equity courts under this head might not properly be ranged imder the general head of Trust, so far at least as it is really exclusive ; but it is more convenient to treat it separately. Administration suits may be said to be of three kinds : — First. Creditors' suits. Secondly. Legatees' suits. Thirdly. Suits by parties interested in the residuarj"- real and personal estate. Now, the first class of suits cannot be said to be necessarily, and to all intents, suits for administration. The creditor has merely a right to be paid his debt. He may sue, according to the nature of his claim, the executor, heir or devisee, at law ; and, upon his esta- blishing his debt, recover against them to the extent of the assets with which they are chargeable. Except ' in reference to certain kinds of property, which coui'ts of equity held to be assets, but courts of law did not ; i and except when the creditor comes to the court of i equity to the footing of a cestui que trust, his rights in {a) i.c. by the Dower Act of 1833, 3 & 4 'Will. IV. cap. 105. Digitized by Microsoft® LECTUEE IV. 51 equity are no higher than at law. The frame of his ' bill is for pajTnent of his debt, if the defendant, the , executor or trustee, admits assets ; if not, then_for an i account, and for payment of his debt in due course of ' administration. If the executor or trustee choose to admit assets, or to submit to a decree for immediate payment of the debt, the creditor gets what he is entitled to, and no administration takes place. Practi- cally, however, this is a case of rare occurrence. The executor does not admit assets. The creditor esta- blishes his debt at the hearing (a), the accounts are taken, and, if the assets be sufficient, the creditors are paid in full : if insufficient, they are paid rateably, having regard to their priorities (/;). The surplus, iff any, is administered according to the rights of the j parties who come next after the creditors ; and thus, practically, the creditor's suit is a suit for adminis- tration. It is not easy to trace when the right of the creditor to file a bill in equity was first clearly established. The earliest cases were doubtless those, in which from the nature of the property to be administered, or from other circumstances, no relief could be had at law. One of the earliest reported cases is to be found in the Introduction to the " Proceedings in Chancery," already frequently referred to. The plaintiffs were (a) The proof at the hearing does not conclusively establish the right of the plaintiff as creditor. A new case may be made in Chambers disputing the debt. See CardeU v. Hawke, L. R. 6 Eq. 464. (5) By 32 & 33 Vict. cap. 46, specialty and simple contract debts of persons dying after January 1st, 1870, stand in equal degree, £ 2 Digitized by Microsofi® 52 LECTUEE IV. the executors of one Vavasour; the defendants, the executors of the Bishop of Lincoln. The hUl alleges that the testator, without any writiug or speciality, of [very trust, lent a thousand marks to the Bishop of j Lincoln ; and that the plaintififs had no remedy hy the I common law (a). Another early case, though of far more recent date, is to he found in Carey's reports (&). There the testator mortgaged his copyhold, and then devised the equity of redemption to he sold for payment of debts. The hill was, in substance, a suit by a creditor against the mortgagee and the heir for redemption and payment out of the proceeds of sale of the copyhold. At a later time, though when it is difficult exactly to determine, the right of the creditor to file his bill in equity (even though the assets to be administered might be legal assets only, and the right to sue at law clear) became firmly established, and so remains at the present day. We proceed to the second kind of administration suits, viz.. Legatees' suits. So late as the end of Queen Elizabeth's reign, it appears to have been at least doubtful, whether the only remedy of a legatee, seeking payment of his legacy from an executor, was not in the EcclesiasticalCoijrt. Thus, in the little book by Tothill, caUecT" Trans- actions of the High Court of Chancery," consisting, for the most part, of brief notes of decided cases, we find the following decision noted. " Piggott contra (a) See Calendars of Proceedings in Chancery, vol. i. xciii. (5) Page 9, edition 1820. Digitized by Microsoft® LECTURE IV. 53 " Parson : (44 Eliz.) Because the ground of the " bill is for a legacy thought fit to be dismissed" (a). On the other hand, in the same book, under the head ^ " Legacj%" various cases are referred to, in which the ; jurisdiction appears to have been exercised, and one of j them (b) of eight years' earlier date than the decision ', just cited. The growth of the Chancery jurisdiction in respect of legacies is clearly traceable to the imperfections of the jurisdiction of the Ecclesiastical Courts. The latter, being a mere jurisdiction to decree paj'ment of the legacy, was in a large number of cases unable to do justice. When the testator's assets were clearly sufficient, no difficulty arose ; but when the debts were considerable, or there was reason to apprehend the existence of undiscovered liabilities, the arm of the Ecclesiastical Coui-t was, for all useful purposes, paralysed. It had no power to make provision for the payment of debts : and if it decreed payment of ! the legacy simply, the executor might subsequently, \ upon the assets proving insufficient for payment of ' both debts and legacies, have to make good out of his own means that portion of the assets which he had, in obedience to the decree of the Ecclesiastical Court, applied in payment of the legacy. Probably the earliest cases in which the legatee came to the Court of Chancery seeking payment of i his legacy, were those in which he did so strictly in the character of cestui que trust, as where real {a) Tothill, p. 19. (5) Yelverton contra Newport, 36 Eliz. Digitized by Microsoft® f 54 LECTUEE IV. estate had been devised for payment of debts and legacies. Subsequently, we find cases in which the executor, being sued in the Ecclesiastical Court, filed his bill in the Court of Chancery, asking to be indemnified against payment. Horrell v. Waldrivp, decided iu 1681, was a case of this kind (a). But the moment the Court of Chancery allowed the executor to insist upon the payment to the legatee being made under its own protection, it was matter of course that it should allow to the legatee the reciprocal benefit of suing the executor. Thus, suits by legatees became part of the established jurisdiction of the court, and so they remain at the present day. The legatee, like the creditor, merely asks by his suit payment, of what is due to him ; and if the exe- cutor should choose to admit moneys in his hands applicable for payment, the suit may .be at an end without more. But practically, a legatee's suit is, except in rare instances, a suit for administration. The executor is, from particular circumstances, imable (a) The following is the material portion of the Keport : " The plaintiff ' ' was sued in the Ecclesiastical Court for legacies, and preferred his bill " here to be indemnified in the payment of them ; and the defendant " demurred, because the conusance of legacies belongs to the Ecclesiastical " Court, and they wiU take care to indemnify the party in payment of " them. ' ' But the demurrer was overruled, because this court hath the "proper conusance of ^legacies, and in some cases, this court wiU take " care for indemnifying the executor or administrator, where the Ecclesias- " tical Court cannot, and will make a legatee refund, if debts appear after- ' ' wards, if the legacy be decreed by this court ; and this court wUl give " interest for a legacy, which that coui-t doth not, and the plaintiff hath " an election to sue here or there." (See 2 Freeman, 83.) Digitized by Microsoft® liECTUEF. IV. 55 or unwilling to admit assets. The legatee, of course, cannot be paid without prior payment of debts. Hence, the accounts have to be taken and the debts to be paid ; and when the cause has reached that stage at which the pecuniarj'' legatee is entitled to payment, the distribution, under the direction of the court, of the net residue amongst the persons entitled thereto, follows as of course. Thus, what is primarily a mere bill for a pecixniary demand, is in substance a bill drawing with it a general administration. The third kind of administration suit, viz., that in which the plaintiff is a party interested in the resi- duary real or personal estate, demands but little explanation. Here, the party seeking relief of the court comes really in the character of cestui que trust, asking to have the accounts taken, the estate cleared by payment of the testator's debts and legacies, the net residue ascertained, and the plaintiff's share paid to him, or if the plaintiff be imder disability (say an infant), secured for his benefit. Finally, I would observe, that in each of these three kinds of suits, the jurisdiction exercised, so far as it amounts to administration, is really exclusive. It is in a court of equity alone that the executor's accounts can betaken, the claims on the estate satisfied, and the net surplus ascertained and handed over to the proper parties ; and, though the classification may not be in all points perfect, "Administration of Estates of Testators and Intestates " properly falls under the division of exclusive jurisdiction. Digitized by Microsoft® 56 LECTUKE IV. To proceed to inj^ third subdivision, viz., " Equitable " Doctrines in reference to the Property of Married " Women." Upon the question whether the Court of Chancery- can be said to exercise any protective jurisdiction over married women in the same way that it does over infants, I shall say a few words presently, when I reach my second main branch of exclusive jurisdic- tion. For the present, I limit myself exclusively to the question ot property. Consider first the position of a married woman at law in reference to property. The husband upon ' marriage becomes absolutely entitled to all his wife's personal estate, and to an estate during the joint lives ol himself and his wife in her freehold property. This last estate becomes enlarged into an estate for his own life (the estate by the curtesy) immediately upon the birth of issue of the marriage. The laiv (a) annexes, in reference to the husband's title to the wife's personal ,estate, one qualification for the benefit of the latter, viz., that if the husband does not reduce the personalty into possession during the coverture, and the wife sur- vives, the wife retains, by right of survivorship, so much of her personal estate as has not been so re- duced into possession. The law also, in its result, enforces one disabihty for the benefit of the wife, viz., that she shall not alien her real estate except upon the terms of her being separately examined, and (after the effect of the intended alienation has been explained to (a) i.e. law as distinguished from equity. Digitized by Microsoft® LECTURE IV. 57 her) giving her personal assurance that the alienation is of her own free will. Thus stands the matter at law (a). In equity the privilege and protective dis- ahilities of the wife are more extended. They are mainly three : — {a) The legal position of married women has been materially modified by the "Mamed Women's Property Act, 1870," 33 & 34 Vict. cap. 93, of which the following is an abstract : — § 1. The earnings of married women are to be deemed property held to their separate use. See Ashworth v. Ontram, 5 Ch. D. 923. § 2. The same as respects deposits in savings banks. § 3. Married women may hold public stock in their own names as if settled to their separate use, and deal with the same as if they were unmarried. See Howard v. Bank of England, L. R. 19 Eq. 295. § 4. The same as to shares, debentures, or stock in joint stock companies, to the holding of which no liability attaches. See Queen v. Carnatic EaUway Company, L. R. 8 Q. B. D. 299. § 5. The same as to interests in friendly, benefit, and other similar societies. § 7. Personal property coming to a woman married after tlie passiny of this Act, daring her marriage, as next of kin, and any sum not exceeding 2,001. coming to any such woman during marriage under a deed or will, to belong to her for her separate use, and her receipts alone to be good discharges. § 8. The same as to rents and profits of freehold, copyhold, or customary hold property, which shall descend upon a woman so married. § 9. Contains special provisions for the decision of questions of ownership as between husband and wife. § 10. Enables a married woman to effect policies of assurance on her own or her husband's life for her separate use, and contains other provisions as to policies. See Mellor's Policy Trusts, 6 Ch. D. 127 ; 7 Ch. D. 200. Digitized by Microsoft® 58 LECTUEE IV. 1. The capacity of the wife to hold property as a feme sole ; to have a s eparate estate, n^Jafit. 2. The wife's equity to a settlement out of equitable interests. 3. The wife's disability in reference to her right of survivorship in equitable interests. § 1], is as follows : " A married woman may maintain an action. " in her own name for the recoTery of any wages, " earnings, money, and property by this Act declared, "to he her separate property, or of any property " belonging to her before marriage, and which her hus- " band shall by writing under his hand have agreed " with her shall belong to her after marriage as her " separate property, and she shall have in her own " name the same remedies, both civil and criminal, " against all persons whomsoever for the protection and " security of such wages, earnings, money, and property, " and of any chattels or other property purchased or " obtained by means thereof for her own use, as if " such wages, earnings, money, chattels, and property " belonged to her as an unmarried woman, and in any " indictment or other proceeding it shall be sufficient ' ' to allege such wages, earnings, money, chattels, and " property to be her property." § 12, is as foUows : "A husband shall not by reason of any " marriage which shall 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 contimied unmarried." § 13. A married woman having separate property is made liable to the parish for the maintenance of her husband. § 14. The same as respects her children. Of the foregoing provisions, the 7th, 8th, and 12th sections apply only to women married after the 9th August, 1870; the rest are general. The Digitized by Microsoft® LECTURE IV. 59 The first of these three heads, viz., the wife's separate estate, has been selected for particular con- sideration in my seventh lecture. For the present, therefore, I shall only say that in a court of equity a married woman may, in reference to property, be placed in the position of a/eme sole. I pass, then, to the wife's equity to a settlement. Where a husband becomes entitled, in right of his wife, in possession, to property which he is unable to recover at law (say a legacy left to his wife by the will of a testator, or a share of personalty to which his wife has become entitled under a settlement), although prima facie the husband is entitled to receive the pro- perty, so that, upon the executor or trustee paying him the wife's legacy or share of personalty, the husband's receipt would be a good discharge (a) ; yet, if the intervention of a court of equit}' be in any way called into action, the court allows the husband to receive the property, subject only to w^hat is called the wife's right or equity to a settlement ; that is to say, unless the wife expressly waives this right or equity, the court will inquire into all the circumstances con- 12tli section has, as explained at page 27 supra, been repealed as to husbands and wires married after the 30th Jidy, 1874. The chief novelty is to be found in the 11th section, -which gives the wife, so far as respects her statutory separate estate, a right of action at law in her own name, and of suit in equity withont a next friend. But where a married woman is sued, her husband must still be joined as defendant ; Hancocks v. Lablache, 3 C. P. D. 197. (ffl) The law is now (by section 7 of the Act of 1870) altered as to women married after August 9, 1870, except where property exceeding 200Z. is acquired under a deed or will. Where the property so acquired exceeds 2001., or the marriage is of earlier date, the law remains unchanged. Digitized by Microsoft® 60 LECTURE IV. nected with the marriage {e.g., whether the hushand has made a settlement on his wife; how much of her property he has abeady received: what is his pecu- niary position; whether the hushand and wife are living together or apart), and will, upon a considera- tion of all the material facts, decide how much of the property (if any) shall he paid to the husband, or those claiming under him, and how much (if any) shall be settled on the wife (a). There can be little doubt, I think, from the name given to this privilege, and from the earliest notices of it which occm-, that it originated in those cases where the executor or trustee, decliningjto_pa^jto_the_hiis- band, the latter filed his biU in Chancery. Thereupon the court said, " You, the husband, who seek equity, " mxist do equity ; and we will not decree payment of " any part to you except upon the terms of your " settling upon your wife and her children (h), if she " so desire, a fair share of the property acquired by *' you through her " (c). (a) The cases are too numerous for detailed reference. Amongst the more instructive are Gardner v. Marshall, 14 Simons, 575 ; Vanghan v. Buck, 1 Simons, N.S. 284 ; Bagshaw v. Winter, 5 De Gex & Smale, 466 ; Dunkley v. Dunkley, 2 De Gex, Macn. & Gor. 390. (6) The common form of settlement, in the ahsence of special cases, is upon trust, to pay the income to the wife during her life for her separate use, with restraint on anticipation ; and after her death upon trusts for her children, and in default of children for the hushand absolutely. The principle upon which the settlement is so framed is that the husband and those claiming under him are entitled to the fund, except so far as it may be necessary to make a provision for the wife and children. See Walsh r. Wason, L. E. 8 Ch. 482, and cases there cited. (c) The rights of the wife are in general the same, whether the Equity is sought to be enforced against the husband himself, or against his Digitized by Microsoft® LECTURE TV. 61 It is, however, certain that the wife's right is, at the present day, far more extensive than the suggested historical origin would logically warrant. Thus, it may extend to the tvhole fimd (a), and therefore could not now be regarded as the price paid by the husband for the court's interference in his favour ; not to men- tion that it is now clearly settled that the equity is one which the wife may herself assert actively either by bUl (b), or by petition (c). Next, as regards the^wife^^ight of survivorahig in equitable interests. Here, in the main, equity follows the law. If the husband can contrive to reduce the assignee in in solTency, qr^trustee in bankruptcy, or his particular assignee for value, subject, of course, to a due consideration of the special circum- stances arising from the fact of insolvency, bankruptcy, or assignment. There is, howerer, an exception as to life interests of the wife. As to these, so long as the husband lives with the wife, and maintains her pro- perly, or offers so to do (Bullock ■!'. Menzies, 4 Vesey, 798), no Equity exists, as against him. Upon his failing to maintain his wife properly, or, which in effect is the same thing, upon his being separated from her by his own fault (Barrow v. Barrow, 5 De Gex, Macn. & &or. 782), or becoming by insolvency or bankruptcy (Taunton r. Morris, 8 Ch. D. 453), unable to maintain her, the Equity is enforceable against the- life interest. By a process of reasoning, more subtle than satisfactory, it has been held, that if the husband, while duly maintaining the wife, assigns for value her life interest, and then deserts her, she has no Equity to a settlement (Tidd ■;■. Lister, 10 Hare, 140, 3 De Gex, Macn. & (Jor. 857, and cases there cited). But, of course, in such a case, the assignment of the husband does not affect the wife's right by survivorship. (a) Dunkley v. Dunkley, 2 De Gex, Macn. & Gor. 390 ; and numerous other cases collected in Lewin on Trusts, 4th edition, p. 482, note (e), 5th edition, p. 530, note (A), 6th edition, p. 614, note [b). (5) See Lady Elibank v. 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. 599. Digitized by Microsoft® 62 LECTURE IV. equitable interest into possession, the wife's right by survivorship is gone : if otherwise, it remains. The result, subject to the enactments of the Act of last session (a), to which I wiU presently allude, is, that when the wife becomes entitled to an equitable rever- sionary interest in personalty, her right by survivorship cannot, so long as the interest remains reversionarj-, be barred. In other words, the wife's reversionary equitable interest is, save where the statute applies, inalienable as against her right by survivorship. The husband can confer a title only as against himself in the event of his surviving. So soon as the doctrines of equity on this point were settled, which it may be said they were finaUj' by the gi-eat case of Purdeiv j . Jackson (b), 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 life estate, procured an assignment of it to the wife, and then sought to treat the wife's interest as immediate, and capable, therefore, of being reduced into iDossession. It may be said, briefly, that all devices of this description received their deathblow by the decision in Whittle v. Helming (c). Whether the inconvenience created bj^ the joint operation of Purdew v. Jackson, and of this decision, in rendering certain descriptions of property practically inahenable, did or did not outweigh the advantage of securing to the wife one species, at least, of possession (a) The Session of 1857. (6) 1 Russell, 1. (c) 2 PhiUips, 731. Digitized by Microsoft® LECTURE IV. 63 wliicli the husband, to adopt an expressive phrase, could not even beat out of her, has been much de- bated. The Legishiture has, however, lately decided in favour of freeing this description of property from the fetters thus imposed upon its alienation. In the ) last session of Parliament an Act (a) was passed I enabling married women to dispose of their rever- 1 sionary interests in personal estate. The provisions of this Act are shortly as follows : — By section 1, married women may by deed dispose of reversionary interests in personal estate acquired under any instrument made after the 31st day of December, 1857 (b). By section 2, it is provided that the deed to be executed bj' the married woman shall be acknowledged by her in the anode prescribed by the Act for the Abo- lition of Fines and Recoveries, 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, (a) 20 & 21 Vict. cap. 57 ; kno-wn as Malins' Act. (6) See Butler's Trust, Irish Rep. 3 Eq. 138. Digitized by Microsoft® 64 LECTURE IV. 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 eqidty to a settlement arises only when the fund is ready to be reduced into possession (a). 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 m 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, " takes he r consent " (b). If the wife cannot attend in court, her consent may be taken by commission ; and I may observe, that in reference to interests acquired (a) This statement needs qualification. Eecently, in an administration action, a married woman, who was absolutely entitled to a share of a fund in court representing the residuary estate of the testator, after judgment but before further consideration, presented a petition to enforce her equity to it settlement, and it was held that she was entitled to an immediate order for a settlement, although the fund would not be distributable until after further consideration, and the amount of her share had not yet been ascertained (In re Robinson's Estate, 12 Ch. D. 188). (5) When the fund to be dealt with is under 200Z. , the court was in the habit of paying the fund to the husband, without requiring the consent of the wife to be evidenced in this formal manner. The selection of 200Z. as the limit within which the operation of Section 7 of the Act of 1870 is (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 stiU 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 Cutler, 14 Beavan, 220 ; Re Kincaid, 1 Drewry, 326. Digitized by Microsoft® LECTURE IV. 65 under instruments made after tlie 31st of December, 1857, the wife may, by deed acknowledged, release her equity to a settlement. On the other hand, the right hy 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 device by the husband for the purpose of accelerating the period of possession is, as i we have seen, treated by the court as a fraud on the wife's rights, and wholly ineffectual. 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 (a), and that the jurisdiction of equity in this respect is strictly a head of exclusive jurisdiction. My fourth subdivision, 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 {h). 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 (a) See now the Married Women's Property Act, 1870, of which a summary is given at pages 57, 58, ante, (h) Pp. 23, 24, supra. F Digitized by Microsoft® 66 LECTURE IV. 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 bni, 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 dif&culty of justifying logically the exercise of this head of jurisdiction, iu its origin (a). The tendency of later times, however, has been to incorporate into the common law, either by statute or decision, the equit- able doctiines on these subjects. Thus, as respects mortgages. No one thing can be more purely the creature 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. (6), made a subject of common law juris- diction. By this Act, when an action by mortgagee agaiust 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) Page 23, supra. (6) 7 Geo. II. cap. 20. Digitized by Microsoft® LECTURE IV. 67 a re-convej'ance ; 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 he done but to compute the prin- cipal and interest due. I have, however, in practice known one instance of its being resorted to (a). Again, as respects penalties, the statute 8 & 9 Wniiam III. c. 11, providing, in the case of honds 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 weU known. So is the provision in the 4th & 5th Anne, c. 16 (6), which allowed the obligor in a 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 absolutely 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 extremety remarkable. I refer to the class of decisions establishing the distinction between penalty an d liquidated damages, (a) See, asto the kind of notice requisite tooustthestatutoryjurisdiction, 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. (6) Sect. 13. F 2 Digitized by Microsoft® 68 LECTUEE IV. of which Kemhle 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 f 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 i plaintiff may, in respect of the breach, recover only the damages actually sustained bj' 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, 1,000L, 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 (h). It only remains that I should observe, that the 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 substan- tial objection to including "mortgages, penalties, and forfeitures " amongst the heads of " exclusive jurisdiction." My first main branch of exclusive jurisdiction is now ended ; and I proceed to the second, which embraces (a) 6 Bingtam, 141. (J>) The -whole law on the point will be found well collected in Chitty on Contracts not under Seal, chapter vi, ; and see Ee Newman, 4 Ch. D. 724. Digitized by Microsoft® LECTURE IV. G9 those cases in whicli a ^M^^si-paternal 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 xvrit 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 exliibit- 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 'dnj 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 the Divorce and Marriage Act of last session (a) coming into operation, he in the " Court for Divorce and Matrimoigal Causes." Respecting lunatics, I abstain from saying anything now, as the jurisdiction in lunacy is of a special nature, and wiU receive a separate consideration (6). (a) 20 & 21 Vict. cap. 85. (6) The course embraced one lectm'e on lunacy, which is excluded from this series, for reasons of little interest to the reader. — The Judicature Digitized by Microsoft® \ 70 LECTURE rv. 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-lmown note to Coke Littleton (a), 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 (&)," refers the general super- intendence and protective jurisdiction of the court in the case of infants, to a delegation of the duty of the Crown as " parensj^atrice." The controversy (c) is, how- Act, 1873, section 17, amongst excepted jurisdictions not transferred to the Higli Court, mentions the following : — " Any jurisdiction usually rested 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." And by the 7th section of the Judicature Act, 1875, this excepted juris- diction is to be exercised by such judge or judges of the High Court of Justice or Court of Appeal as may be entrusted by the sign manual of Her Majesty with the care and commitment of the custody of such persons and estates. (a) 88 b. note 70. (5) Book II. part ii. ch. ii. ». 1, note (a). (c) The fusion of jurisdictions effected by the Judicature Act, 1873, has rendered this controversy more than ever unimportant ; and the Act, by sccUon 34, assigns to the Chancery Division all causes and matters for " The wardship of infants and the care of infants' estates.'' It must be borne in mind, however, that a special statutory jurisdic- tion was by 20 & 21 Vict. cap. 85, sect. 35, and 22 & 23 Vict. cap. 61, sect. 4, conferred on the Divorce Court in respect, to the custody, main- tenance, and education of the children of those whose marriage is the subject of proceedings in that Court, and that this jurisdiction is nowassigned to the Probate, Divorce, and Admiralty Division of the High Court. And the old jurisdiction by Habeas Corpus is still exercisable by the Queen's Digitized by Microsoft® LECTURE rv. 71 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 propertj', 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), reported at the original hearing before him, should be read with the greatest care. Secondly, where the property was small, the court i was in the habit of exercising its jurisdiction to ap- point a guardian, and direct maintenance upon peti- tion, 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 desii'able for the best interests of the infant that that step should Bencli Divisioii as respects infants. But in its exercise the rules of Equity must be followed, In re Goldsworthy, 2 Q. B. D. 75. (a) Wellesley v. Duke of Beaufort, 2 Eussell, 1 ; see pp. 20, 21. It is a common practice, wlien it is desired to make an infant a ward of court, to rest some small sum, say 1002., in a trustee for the benefit of the infant, and then to file a bill in the name of the infant against the trustee. See the practice noticed in Grurney v. Gumey, 1 Hemming & MiUer, 419, 420. Digitized by Microsoft® 72 LECTUEE IV. be taken. This was the great point decided in the case of Mr. Long Wellesley's children. The observa- tions of Lord Eedesdale in this case, when on appeal before the House of Lords, cannot be too carefully studied (a). Fourthly, the power of the coui't being paramount to even that of the father, a fortiori it is so to that of all guardians, including testamentary guardians, appointed by the father's will under the statute of Charles II. (&). 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. Wellesley, 2 Bligh, N.S. Subject only to the power of the court, that of the father -was at the time of this decision absolute even 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 uj) 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. For an exposition of the principles which guide the Court in cases arising under the Act, see In re Taylor, 4 Ch. D. 157. (6) i.e, 12 Car. II. cap. 24, s. 8. Digitized by Microsoft® LECTUEE V. In reviewing the concurrent jurisdiction of the Court of Chancer}', I propose adopting the following arrangement : — 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 concm-rent juiisdiction of the court; and — Secondly, I shall touch, seriatim, upon the more important heads of concurrent equity jurisdiction, which, while subsisting independently altogether of the general sources just referred to, will be found, in most cases, to owe their origin and vitalitj' to the superig j; 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 onty. In Digitized by Microsoft® 74 LECTURE V. the former case, however, the jurisdiction in equitj^ being abeady established on distinct grounds, the pre- cise influence of the particular ingredient of "fraud," "accident," or "mistake," in attracting the intei-po- 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 court of conscience : Covin, accident, and breach of confidence." The last of these three, breach of confidence, we have already, as you know, considered under the head of " trusts," the modern equivalent for the word " covin " is "fraud." And fraud we 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 (a) See 4 Inst. p. Si. Digitized by Microsoft® LECTURE V. 75 discussing "fraud " under the head of concurrent 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, according to which a_special disability 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 Roman law, the tutor (or guardian) was prohibited from purchasing the property of his pupil (or ward), and a similar rule was applied to those standing in a similar fiduciaiy 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 com-t, in saying that it is almost impossible, in " the course of the connection of guardian and ward, (a) Tutor rem pupilli emere non potest, idemqae porrigendum est ad similiii : id est, ad curatores, procuratores, et qui aliena negotia gerunt. — Digest xviii. tit. 1, 1. 34, s. 7. (I) Code Civil, § 450. See also § 907, incapacitating the tutor from taking ty will or gift inter vivos until after his accounts have been rendered and passed, and, § 909, invalidating dispositions by will or gift inter vivos made during a last illness in favour of medical attendants. Digitized by Microsoft® 76 LECTURE V. " attorney and client, trustee and cestui que trust, " that a transaction shall stand, pui-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 ordinary sense of imposition or circum- vention ; cases, iu fact, falling within the old legal term " covin," and which, in the modem text-books, such as " Story's Equity Jurisprudence," you will find ranged under the head of actual fraud (b). Now, in these cases of actual fraud, the jurisdiction of equity was, in the main, strictly concurrent. The comt 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 obtaiuing it was a good defence. The equity jurisdiction, however, possessed many advantages over the legal. Thus, in most instances of actual fraud, equity possessed the means of com- (a) Hatch v. Hatch, 9 Yesey, 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-Chancellor 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 Hindson v. WeatherUl, 5 De Gex. Macn. & Gor. 301 ; Walker v. Smith, 29 Beavan, 394. The distinction applies d fortiori to the relations of gnardian and ward, and trustee and cestui que trust. (6) Story, Eq. Jur. vol. i. chapter vi. Digitized by Microsoft® LECTUEE V. 77 pelling the defendant to answer, upon oath, detailed interrogatories^ respecting all the alleged facts and 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 the plaintiff be heard as 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 (&). 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 will be found in the circumstance, that the Equity Court is able in conformity with its la) See this more fully treated in the next lecture, under Discovery, (b) Pp. 24, 25, supra. Digitized by Microsoft® 78 LECTUEE V. habitual mode of action, while setting aside and undo- ' ing the fraudulent transaction, to qualify the annulling operation of its own decree in such 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 will 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 rights 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 maj^, 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 daj% 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, by pure accident, Digitized by Microsoft® LECTURE V. 79 without any default of mine (say, by a fire originating by lightning), destroyed, and that, so shortly before the time fixed for completion that it is impossible to replace the materials, yet this constitutes no case oi accident relievable in equity. — I contracted simply to build by the time, and must abide by my contract. In the early liistory of our equity jurisprudence, a dififerent view, doubtless, prevailed. Lord Coke illus- 1 trates " accident " thus : " Accident, as when a servant i " of an obligor, mortgagor, &c., is sent to pay the ' " money on the day, and he is robbed, remedy is to be j " had in this court against the forfeiture " (a). "We find, in the Introduction to the Calendars of Proceedings in Chancery (b), an instance in which the jurisdiction of the court appears to have been invoked on grounds of this kind. The plaintiff having 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 liim 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. (a) i Inst. p. 8i. This passage confirms tlie view put foirward in the first lecture, p. 24, 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. Digitized by Microsoft® 80 LECTUEE V. The final result of the suit does not appear ; but the bin probably reflects accurately the views of the day respecting equity. However, as we stated above, no accident of a similar description would, at the present day, aiford ground for relief; and if we lay out of consideration the original influence of the ingredient accident, in cases of penalties and forfeitures, the only two classes of cases in the equity jurisprudence of the present 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 ofvowers — 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 , (a) Consider the jurisdiction -whicli was given to the common law courts, ! in cases of this kind, by 17 & 18 Vict. cap. 125, s. 87. As to the dis- ', tinction, in reference to the jurisdiction in equity, between the ' ' loss " I and the " destraction " of a negotiable instrument, see Wright ■«. Lord I Maidstone, 1 Kay & Johnson, 701. (6) Sugden on Powers, 8th edition, chapter xi. Digitized by Microsoft® LECTURE V. 81 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 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 Roman law. It is this, — that while mistake as to law affords no ground for reHef, inistake_as_to_fect„does. Thus in the Digest, under the title " De juris et facti ignorantia," we find the law thus laid down : " Regula est, juris quidem ignorantiam " cuique nocere, facti vero ignorantiam non nocere " (a). And the first 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 consequent rights" (6). Of the existence of the rule, as part of our common law jurisprudence, the case of Bilhie 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 polic}' of marine insurance which he had underwritten, but in ignorance of the legal (a) Digest xxii. tit. vi. I. 9. (b) The words of the original are as follows : — " Nam si quis neseiat ' ' decessisse eum, cujus bonorum i^ossessio def ertur ; non cedit ei tempus. " Sed si sciat quidem defunctum esse cognatum, neseiat autem proximitatis " nomine, bonorum possessionem sihi deferri : aut si, &c. : cedit ei " tempus, quia injure errat." (c) 2 East, 469. See also Kitchin v. Hawkins, L. R. 2 0. P. 22. G Digitized by Microsoft® 82 LECTURE V. rights resulting from that fact, paid the amount which he had assured ; and subsequently brought an action to recover the monej^ back. The Court of King's Bench held the action would not lie. 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 full knowledge of aU the facts of the case, he could recover it back again on account of his ignorance of the laic. No answer was given ; and his lordship subsequent^ 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 Eoman or by the common law. This has occurred more particu- Digitized by Microsoft® LECTUEE V. 83 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 apparently rested its judgment more or less on the mistake or ignorance of law. The oft-mentioned case of Lansdown e v. L ansdowne (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 younger 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 " Eemembrancer," 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 . .1 the younger brother was entitled. Therefore, it was i agreed that the son of the elder brother and the younger ', broBier, 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 bill to be relieved ; and Lord King, Chan- cellor, decreed that the bond and conveyances had been obtained b y mistake and misrepresentation of the law, ' and o rdered th em .to be- given up to be cancelled. Lord , King is reported to have said, in dehvering judg- ; ment(&), that "That maxim of law, Ignorantia juris " non excusat, was in regard to the Public, that Ignor- (a) 2 Jacob & Walker, 205 ; s. c. Moseley's Reports, 364. (6) Moseley's Keports, -365. G 2 Digitized by Microsofi® 84 LECTURE V. " 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 (a). The form of the decree in Lansdowne v. Lansdoivne, viz., that the deeds should be delivered up, leads me naturally to the consideration of the superior efficacy of the equity jurisdiction in cases 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 vainly 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 (a) The high authority of Lord Westbury, has, however, been added to that of Lord King since the lectures were delivered. In Cooper v. Phibbs, Law Kep. 2 H. L., 149, Lord 'Westbury expressed himself (p. 170) thus: — "It is said, ' Ignorantia juris Imud excrisat,' 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 maybe the result also *' of matter of law ; but if parties contract under a mutual mistake and 1 ' ' 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. 81, supra, and others of a similar character ; and the proposition that a common misconception by two contracting parties in reference to matter of law affords no ground for impeaching the contract is substantiated by the recent decision of Eagles- iield V. Marguis of Londonderry, i Ch. D. 693 ; see observations of Lord Justice James at page 709. Digitized by Microsoft® LECTUKE V. 85 in cases of " mistake ;" so, on the other hand, the power to qualify, mould, and alter, instead of simply- 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 circumstances, 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 will, appoint ; and that, inadver- tently, the power of appointment was given to the husband 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 1, jurisdiction, derivable from the three heads of fraud, | accident, and mistake, it would be difficult to name ' any portion which is more beneficial, or more judi- ciously 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 natm-e of the remedy, the most satisfactory approach to classification seems to me to be that (a) The Judicature Act, 1873, section 34, assigns to the Chancery Division of the Court causes and matters for, inter alia, "The rectification, or setting aside, or cancellation of deeds or other written instruments. " Digitized by Microsoft® 86 LECTURE V. whicli 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 (a). Secondly. — Cases in which the remedy at law was wholly inappropriate, including (b), — 1. Recovery of Specific Chattels. 2. Specific Performance. Thirdly. — Cases in which the remedj^ at law, though not positively inappropriate, was less easy and con- venient than m equity, including (c), — 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 jojTit merchants occupy their stocke goods and " merchandizes in common to their common profit, (a) The same Act assigns to the Chancery DiTisiou causes and matters for — ' ' The dissolution of partnerships or the taking of partnership or " other accounts. " (b) There is no special assignment by the Judicatvtre 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 for " The specific performance of contracts between vendors and purchasers of real estates, including contracts for leases." (c) As to account, see note (a) supra. The Act does not mention " Dower," but specially assigns to the Chancery Division causes or matters for " The partition or sale of real estates." Digitized by Microsoft® LECTUEE V. 87 " one of them naming liimselfe a merchant shall have " an account against the other naming him a mer- " chant, and shall charge him as, ' receptor denari- " ormn ipsius B ex qudcunque causa &■ contractu ad " commimem utilitatem ipsorum A & B proveniew " sicut per legem mercatoriam rationahiliter monstrare " poterit" (a). But the remedy by action of account has long since become practically obsolete (h) ; and if we except the right of a partner, where partnership articles have been entered into under seal, of bringing an action of cov enant 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 well be otherwise. Assume that one partner receives a sum of money, which primd facie he is bound to pay into the partnership account, or of which he ought to pay one-half to his feUow 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 fairly 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 liabilitiesj might j " appear to belong to himself." Where the partners ' have, upon a dissolution of partnership, met and ad- {«) Coke Litt. 172. (6) A short sketch of the common law action of a::count will be found in Lecture VIII. Digitized by Microsoft® 88 LECTURE V. justed an account (that is to say, actually taken tlieir 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 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. Secondl}'. — It will, at the instance of a partner, decree a dissolution_jof_j3artnership, 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). (o) As to dissolution in event of lunacy of a partner, see Besci v. I'rolich, 1 Phillips, 172 ; Anonymous case, 2 Kay & Johnson, 441 ; and Leaf V. Coles, 1 De Gex, Macn. & Gor. 171. If the dissolution is purely the act of the Court, founded on the permanent lunacy of the partner, it will take 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 will be declared to have been dissolved as from the date at which the dissolution was duly effected. See Robertson v. Lockie, 15 Simons, 285. Digitized by Microsoft® LECTUEE V. 89 Thirdly. — It will, 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 (a). Fourthly. — ^It will in certain cases direct accounts to be taken, even though a dissolution be not in con- templation (b). 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 article or chattel was wrongfully with- held from a man, his remedy was either by action of irojTer^ 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 i 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, {a) See Hall v. Hall, 3 Macn. & Gor. 79. (5) The authorities will be found collected and discussed in Fairthome ■II. Weston, 3 Hare, 387. Digitized by Microsoft® 90 LECTURE V. or paying the value (a). But what real redress could this aiford when the thing itself was wanted ? Take the case of a rare monument of antiquity, — the famous Pusey Horn, for instance, said to he the same under which the Pusey family in Berkshire held their lands of Canute the Dane. What damages could comiDensate 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 jou ; 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 still supply the very remedy required. They did so at an early though not very clearly (a) See the question as to the proper form of verdict learnedly discussed in Williams v. Archer, 5 Common Bench E. 318 : and in Phillips v. Jones, 15 Queen's Bench R. 859. The Common Law Procedure Act, 1854, 17 & 18 Vict. cap. 125, b. 78, conferred a new jurisdiction to compel specific delivery of the chattels ; but the power of compulsion was by djstejss only, and therefore less efficacious than that in equity. Now, by the operation of the Judicature Acts, 1873 and 1875, there is but one Court and one process, and : By Order xlii., rule 4, of the Rules of the Supreme Court, 1875, it is provided as follows : A judgment for the recovery of any property other than land or money may be enforced ; By writ for delivery of the property. By writ of attachment. By writ of sequestration. And, by Order xliv., rule 1, a writ of attachment shall have the same effect as a writ of attachment issued out of the Court of Chancery has heretofore had. Digitized by Microsoft® LECTURE V. 91 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 still 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 of the 9th Edward IV. (b), 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 oiPiisey v. Pusey (c), in which the subject-matter of litigation was the very Pusey Horn of which I spoke to you just now ; and later stUl, in the year 1735, a case oi Duke of Somerset v. Cookson {d),iB. which Lord Chancellor Talbot decided that a bill would lie by the plaintiff, lord of the manor, against defendant for dehvery 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 wholly inadequate. A man purchased a ]5iece 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 (a) P. cxiv. ' (6) PI. 41. — Mr. Spence mentions, Eq. Jur. vol. i. 643, note (i), instances of bills 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. (c) 1 Vernon, 263 ; anno 1684. {d) 3 Peere Williams R. 389. Digitized by Microsoft® 92 LECTURE V. the purchase-money ; yet, if before actual conveyance, diiferences 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 civilized jurisprudence could tolerate such a state of things. Accordingly, equity 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, while 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 erred rather in treating the time stipulated for performance of the contract as generally immaterial. Thus, as you are probably aware, if A sell 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 prima facie entitle the other to rescind the contract. To use the technical phrase, time is not deemed of the essence of the contract (6). It may be admitted perhaps that (ffi) 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 same preface "tEereis 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 v. Gale, Law Rep. 7 Ch. App. 12. Digitized by Microsoft® LECTURE V. \j6 tlie equity coui-ts have gone rather far in this respect, in interfering witli the contracts of parties. StUl, the error may well he 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, i who, whenever settling a stipulation in respect of which time is to be essential, add the words, " and in this " respect, time shall he deemed to he of the essence of the ' " contract " (a). I proceed to the third class of cases in which the remedy at law, though not positively inappropriate, was less easy and convenient than that in equity, em- bracing (I repeat the subdivisions) — 1. Account. 2. Dower. , 3. Partition. Account has been reserved for special and more (a) The late Lord Cranworth entertained strong oijinions that the equity courts had gone to the utmost allowable limits in their interference with the stipulations of contracts in regard to time : opinions Tvliich, in one case (Parkin v. Thorold, 2 Simons, N. S. 1, reported on the hearing at the Kolls, 16 Beavan, 69), led him to a decision practically at variance with doctrines of the court. But though the tendency of the modern decisions generally may have been to narrow the rule by means of exceptions such as those alluded to in the last previous note, it still remains firmly estab- lished. See Roberts v. Berry, 3 De Grex, Macn. i% Gor. 284, and the judgment of the Lords Justices Knight Bruce and Turner in Wells v. Maxwell, 33 Law Journal (N.S.) Chanc. 44. The Judicature Act, 1873, by section 25, sub-section 7, enacts as follows ; — "Stipulations in contracts, as to time or otherwise, which would " not before the passing of this Act have been deemed to be or to have ' ' become of the essence of such contracts in a court of equity, shall " receive in all courts the same construction and efiect as they would have " heretofore received in equity." Digitized by Microsoft® 94 LECTURE V. detailed consideration in my eighth lecture ; and I pass therefore at once to " Dower." You know of course what " Dower " was. It was the wife's right to have for her life, after her husband's I death, one third part of any lands and tenements of I which the husband was at his death, or had been at any time during their coverture, seised in fee simple or ■ in fee tail. The origin of this right of the widow has been the subject of much discussion. It was not originally derived from the feudal system, for its introduction into that system some time after it had formed part of the English law can be clearly traced (a). Blackstone assigns a Danish original to it {&). Our concern here, however, is not with the history and general incidents of dower, but merely with the widow's remedy for enforcing her right. The com-se pointed out by Magna Charta was that the widow should remain in her husband's capital mansion-house for forty days after his death, during which time her dower should be assigned to her. This assignment it was the dutj' of the heir, or, if the heir were under age, then of his guardian, to complete (c). After assignment, the widow had a right of entry, and, after entiy, held of the heir by a kind of sub-infeudation. But the heir or guardian might neglect to assign, and in this case the widow's remedy at law was by a writ of ■ dower. (a) 2 EI. Com. 129. " (h) Ibidem, (c) See at Appendix F, a precedent of assignment of dower by tlie heir, extracted from the "Perfect Conveyancer," printed in 1655. Digitized by Microsoft® LECTURE V. 95 Hitherto we have assumed that the husband died seised. But it must be recollected that the widow's title to dower applied as well to lands which the husband had conveyed away during the coverture, as to lands of which he died seised ; and probably upon investigation, \ a very large pi'oportion of the litigated cases of dower would be found to be those in which the husband had ( conveyed away the land. Here, too, the remedy at common law was by writ of dower. But the widow's remedy at law was very imperfect. Her chief difficulty in asserting her rights would obviously be her ignorance ' of the facts on whichjier right to dower dependeii. Without knowing the contents] of the deeds under which her husband derived title, she would neither know whether the estate taken by him was such as to entitle her to dower, nor with sufficient accuracy the precise lands. And in those cases in which the land had been conve3'ed away by the husband in his life- time, the widow was especially helpless from her ignor- ance. This ignorance the equity courts aided by the exercise of their powerful engine " Discovery," com- pelling the heir or ahenee to answer on oath detailed interrogatories, put to him for the purpose of ascer- taining the true facts respecting the title and situation of the lands. Discovery, indeed, may be said to have been the foundation of the equity jurisdiction in reference to dower. There were other causes, however, which tended to confirm the jurisdiction. Amongst them may be mentioned the circumstance that, upon the death either of the tenant or of the widow before assessment of Digitized by Microsoft® 96 LECTUEE V. damages for -withholding her dower, the right to the damages was at law lost ; whereas a court of equity would decree what was due upon the result of the ' account to be paid either hy the representative of the heir, or to the representative of the widow. This was the point decided by Lord Alvanley, in the celebrated case of Curtis v. Curtis (a), the judgment in, which ought to be read and re-read by every one who wishes to gain correct notions respecting the equitable juris- diction in cases of dower. Again, under the law as it existed previously to the recent Act for the extinguishment of sa tisfied terms_ (5), where the widow sued at law for dower against the heir or devisee, and there happened to be a satisfied term of years created antecedently to her title of dower accru- ing, all that the widow could obtain at law was a judg- ment with a stay of execution {cesset executio) during the continuance of the term — in substance a fruitless judgment. In these cases she came to a court of equity, and the term was removed out of her way. For these combined reasons the Court of Equity assumed and still exercises an independent concurrent jurisdiction in reference to dower. The case of dower is indeed a peculiarly apt instance of " concurrent jurisdiction ; " for you must bear in mind that until the late Dower Act, the wife was not dowable out of equitable estates, though the husband had his curtesy thereout ; so that, previously to that (a) 2 Ero-BTi's Chancery Cases, 620. (J) S & 9 Vict. cai). 112. Digitized by Microsoft® LECTUEE V. 97 Act, the wife necessarily came relying upon a purely legal title. One remaining observation respecting dower. The late Statute of Limitations (a), when sweeping away some forty forms or so of real action, whose uncouth names may be read in the thirty-sixth section, yet retained, together with " quare impedit," the writ of "dower," and writ of " right of doiver," the only three real actions now remaining (b). In practice, however, the common law action, though not obsolete, is very rarely resorted to (c). Partition alone remains. Partition may be said to be a legal remedy for the inconveniences of the most inconvenient of all species of ownership, viz., that in undivided shares. Of this class of ownership there are three kinds, viz. : — 1. Coparcenary, which arises where, upon the death of a person intestate leaving several co-heirs, the land descends to these co-heirs as co-parceners. 2. Joint tenancy, which occurs where property is limited to two or more persons without words of division. (o) 3 & 4 WiU. IV. cap. 27. (J) These actions were in effect, by 23 & 24 Vict, c 126, s. 26, abolished as real actions. (c) The only reported modem instances of resort to the common law jurisdiction are, so far as 1 am aware, Garrard v. Tuck, 8 Common Bench R. 231 (which appears to have resulted in a compromise), Gromm v. Parrott, 3 CommoD Bench Kep. N.S. 47, and Woodward v. Dowse, 10 Common Bench Hep. N.S. 722, which last case was subsequent to the 23 & 24 Vict. c. 126. H Digitized by Microsoft® 98 LECTURE V. 3. Tenancy in common, where property is limited to several, with words added, defining the aliquot shares in which they are to take. I intimated that the inconveniences of this class of ownership were great ; let me advert to a few. Each co-parcener, joint-tenant, or tenant in common, had and has a right to enter upon every part of the land. If there were a house, for instance, each would he entitled to enter upon and partake in the occupation of every room in it. Again, each owner might receive the whole rents and profits, and the only remedy which the law gave was by an action of account (a). It might, indeed, be said almost that, except in the case of an actual expulsion of one owner by the other or others, there was no remedy of any value short of partition. Thus Littleton (&), after having pointed out in the previous section that one tenant in common might have an action of ejectment against the other, if the other put him out of possession and occupation, proceeds to state that no action of trespass, " Quare clausum suwm (a) See Thomas v. Thomas, 5 Exchequer, 28, where it was held that an action for money had and received will not lie. And where one tenant in common merely occupies and enjoys the land, as by farming at his own risk, no action of account lies at law in favour of the co-tenant. See Henderson v. Eason, 17 Queen's Bench Rep. 701, in Exchequer Chamber, overruling the previous decision of the Queen's Bench. Nor is there any remedy in equity in such a case — Henderson v. Eason, 2 Phillips, 308 ; a result which, notwithstaading the observations in the judgment of Parke, B., in Exchequer Chamber, and Lord Cottenham's decision, .;an hardly be viewed as satisfactory. But where a tenant in common occupies in exclusion of an infant co-tenant, he is chargeable in equity with an occupation rent ; Pasooe v. Swan, 27 Beavan, 508. (i) Sect. 323. Digitized by Microsoft® LECTURE V. 99 " /regit et herbam siiam, cCx., coneulcavit," will lie by one against the other, for that each may enter and \ occupy in common the lands and tenements which they hold in common; that is to say, in substance, each might use or abuse the land " ad Ubitum." In the case of an undivided ownership of chattels personal, the legal results were and still are even more inconvenient (a). Thus, in the same section, Littleton contiuues in these words : " but if two be possessed of " ehattells personalis in common by divers titles, as of " an horse, an oxe, or a cowe, &c., if the one take the " whole to himselfe out of the possession of the other, " the other hath no other remedie but to take this from " him who hath done to him the wrong, to occupie in " common, &c., when he can see his time." The position of the parties sometimes was, and might even now still be, that which is ludicrously described in the American story, viz. : Two men are tenants in common of an elephant, and one declines either to pay anything to the other in the shape of profits of exhi- bition, or to buy his co-owner's share, and is at last brought to reason only by the threat of the injm'ed party to shoot his undivided moiety {b). (a) And for these inconveniences there is no remedy, equitable or legal. (6) Notwithstanding the humour of the story, it must be taken to be clear as a matter of law, that if the threat had been carried into execution, the shooter would have been liable in damages to the extent of one moiety of the difference in value between the live and the dead elephant. In fact, destruction of the chattel is, in reference to undivided ownership of chattels personal, the analogous case to actual expulsion in the case of land. Thus Lord Coke in his commentary on Littleton says : — "If two ' ' tenants in common be of a dove-house, and the one destroy the old " doves, whereby the flight is wholly lost, the tenant in common shall ir 2 Digitized by Microsoft® 100 LEOTURE V. You must, I think, by this time, be sufficiently satis- fied that some remedy was wanted against the incon- veniences of undivided ownership. The common law, however, afforded none, except in the case of copar- ceners, for whose benefit there lay a writ (lej^m;ti^timie faciendd. Joint tenants and tenants in common were oEE^edTuntil the reign of Henry VIII., to bear their fetters as they best could. No doubt good sense and agi-eement of the parties mitigated the defect of the law (a). The absence, however, of any power of com- pelling a partition in the case of joint-tenants, and tenants in common was by the time of Hemy VIII. felt to be an evil calling for legislative interference ; and accordingly by the 31st Henry VIII. cap. 1, joint- '■ have an action of trespasse, qtiare vi et armia columbare le plaintiff "/regit et ducentaa colmnlM pretii iOs. tnterfecit per quod volatum ' ' columbaris mi totaliter amisit, for the whole flight is destroyed, and "therefore he cannot in bar plead tenancie in common." Upon the question, how far a tenant in common, who does not actually destroy the common chattel, hut merely sells it, is liable to his co-owner, see Mayhew V. Herriok, 7 Common Bench R. 236. And see further, Fraser v. Kershaw, 2 Kay & Johnson, 496. (a) We find mentioned in Littleton a great yariety of different modes of partition by agreement. It may be not uninteresting to hear him tell one of them in his own words : — " Another partition or allotment is, as if there be four parceners, and ' ' after partition of the lands be made, every part of the land by itself is ' ' written in a little scrowle and is covered all in waxe in manner of a " little ball, so as none may see the scrowle, and then the four balls of " waxe are put in a hat to be kept in the hands of an indifferent man, " and then the eldest daughter shall first put her hand into the hat, and " take a ball of waxe with the scrowle within the same ball for her part, ' ' and then the second sister shall put her hand into the hat and take " another, the third sister the third ball, and the fourth sister the fourth " ball, &c., and in this case every one of them ought to stand to their " chance and allotment." — Littleton, sect. 246. Digitized by Microsoft® LECTURE V. 101 tenants and tenants in common of estates of inherit- ance were made compellable to partition ; and by the 32nd Henry vni. cap. 32, joint-tenants and tenants in common for life or for years were placed in the same position. Still the proceedings at law were deficient in power of adaptation to the circumstances of the different cases arising. The procedure was as follows : — The plaintiff sued out the writ of partition. There was a judgment that partition should be made ; and then a writ issued to the sheriff to summon a jury and make partition (a). But the sheriff had no power, however desirable it might be, to divide the land unequally, and award pay- ment by one owner to the other of money for equality of partition (&). And although so late as the reign of WiUiam III. we find an Act of Parliament passed ex- pressly for the purpose of regulating the common law procedui'e in partition cases, yet the equity jurisdiction, which would seem to have been first assumed towards the end of the reign of Queen Ehzabeth (c), gradually gained ground upon that at common law, until the common law writ of partition became rather a matter of antiquarian interest than of practical importance. Finally, in the year 1833 (d), the Legislature, when abolishing, with the three exceptions above adverted (a) See fonn of writ stated, Coke Litt. 167 (6). (b) And in equity, an express direction in the decree is necessary to authorise the commissioners to award sums for owelty of partition. See Mole V. Mansfield, 15 Simons, 41. (c) See Spake v. Walrond, Tothill, 155. id) See 3 & 4 "W. IV. cap. 27, s. 36. Digitized by Microsoft® 102 LECTURE V. to (a), all real actions, included amongst the abolished forms the writ of partition, and thus, by Act of Parlia- ment, gave to the Court of Equity exclusively a juris- diction which had long belonged practically to equity alone. Thus, the jurisdiction in partition might be now said to be exclusive ; but having regard to its history, it is properly, and more conveniently, included as a head of concurrent jurisdiction. One defect there was, indeed, to which the equitable jurisdiction in matters of partition was, until quite lately, equally with that at law, subject. It was this ; there was no power to decree a partition ofjcojg^hold land. Where a mixed inheritance of freeholds and copyholds was held in undivided shares, the court might decree a partition in a qualified sense by giving all the copyholds to one, and adjusting the rights by directing paj'ment of money for equality of partition (6). But where the ivliole of the property was copyhold, there were technical difficulties in reference to binding the rights of the lord of the manor; and the late Vice-Chan- cellor of England, in the case of Horncastle v. Charles- ivorth (c), expressly decided that a bill would not lie in equity for the partition of copyholds. This defect, or supposed defect, of jurisdiction was, however, remedied by the Copyhold Enfranchisement Act, passed in the year 1841 (d), by which it was enacted and declared, that it should be lawful for courts of equity (a) Page 97, supra. (5) See Dillon v. Coppin, 6 Beavan, 217, note (a). (c) 11 Simons, 315 ; see, too, Jope v. Morshead, 6 Beavan, 213. (d) 4 & 5 Vict. cap. 35, s. 85. Digitized by Microsoft® LECTUEE V. 103 to make the like decree for ascertaining the rights of I the parties, and issuing a commission to make parti- tion, as hy the practice of the court might he made with resi^ect to lands of freehold tenure. The equity procedure in partition suits differed little, if at aU, during the growth of this head of jurisdiction, from what it is at the present day. It is now as fol- lows : — The plaintiff seeking a partition files his bill, bringing before the court the owners of the other un- divided shares. Upon the right to a partition being estabhshed at the hearing, the form of decree is, that a commission do issue (a) to commissioners to divide the estate, and that the parties do execute mutual con- veyances. The commission issues. The commissioners divide the estate and make their return to the commis- sion, setting forth the division made by them ; and upon the return coming in, mutual conveyances {h) are executed in conformity with the division made by the commissioners (c). (a) Under the more recent practice the decree declared the right, and proceeded to direct that proposals for a partition he laid before the Judge at Chambers ; see Clarke v. Clayton, 2 Qilfard, 333. (6) By means of the 30th section of the Trustee Act, 1850 (13 & 14 Vict. cap. 60), a statutory conveyance may now be obtained, even where parties under disability are interested, Bowra v. Wright, 4 De Gtex & Smale, 265. And see Shepherd v. Churchill, 25 Beavan, 21. (c) The remedies of co-owners have received a large, and, on the whole, beneficial extension by the Partition Act, 1868 (31 & 32 Vict. cap. 40), which, in effect : first (by sect. 3) authorises the Court of Chancery (upon the request of any person interested, notwithstanding dissent or disability of the others) to d ecree a sal&J n the event of special circumstances render- ing a sale more beneficial than partition ; Driukwater v. Radclifie, L. R_ 20 Eq. 528 ; secondly (by sect. 4), directs the Court, upon the request of Digitized by Microsoft® 101 LECTURE V. My classified heads of equity are now exhausted ; but there remains yet one subject of equity jurispru- dence which it is impossible to range accurately within any one of the other classes mentioned, and which nevertheless demands some notice. I mean, Sjt-offia). By the civil law, if A was indebted to B, and before he discharged his liability B became indebted to him, what was called " compensation " took place ; that is to say, A's liability to B became "ipso facto" extinguished, partially or wholly, according to the amount of B's liability to him. This doctrine of compensation was founded on a principle of natural equity or good sense, which forbids that a man should be compelled to pay one moment what he wiU be entitled to recover back the next ; or, to use the words of the civil law, " Ideo " compensatio necessaria est, quia interest nostra potius " non solvere, quam solutum repetere" (&). The same persons beneficially interested to the extent of a moiety, so to decree, unless it sees good reason to the contrary ; Pemberton v. Barnes, L. K. 6 Ch. 685 ; Eowe v. Gray, 5 Ch. D. 263 ; Porter o. Lopes, 7 Ch. D. 358 ; and thirdly (by sect. 5), authorises the Court to decree a sale upon the reijuest of any person interested, unless the other persons interested undertake to purchase the share of the person requesting ; see Gilbert V. Smith, 8 Ch. D. 548 ; 11 Ch. D. 78. The first of these enactments is, it is beliered, only in accordance with the codes of most foreign countries. The corresponding provision of the Code Civil, Art. 827, is as follows : " Si les immeubles ne peuvent pas se "partaker commodement U doit itre procedi d la vente par licitation " devanl le tribunal." (a) The portion of the Lecture as to "set-off" has ceased now to have any practical legal importance, but it is retained on account of its historical interest, {Ij Dig. xvi. tit. ii. 1. 3. Digitized by Microsoft® LECTURE V. 105 doctrine exists in those sj'stems of jurisprudence which are grounded on the Roman law (a). Now, the common law utterly refused to recognise this principle of justice. If B owed A money, and A owed B money, A was entitled to recover from B, although the amount of his own debt was greater, and although he might himself be in insolvent circumstances ; and thus, by being first in the race, he might obtain judgment and payment of the amount recovered, leaving B to sue subsequently for his own debt, and recover a judgment of his own, bearing no fruits. Nay, even if A had actually become bankrupt, so that his assignees had become entitled to what was owing from B, the law allowed A's assignees to recover from B the whole amount, leaving B to go in under the bankruptcy and prove against A's estate, and recover a dividend only. The glaring injustice of this result in cases of bank- , ruptcy, led to the first legislative mitigation, viz., that effected in Anne's reign (b), of allowing a set-off in cases j of mutual credit and mutual debts between the bank- [ rupt and any person (c). About a quarter of a century later, by a short and (a) See, for instance, the section on "Compensation,'' beginning Art. 1289 of the French " Code CivU." (b) This statute is commonly referred to as 4 Anne, cap. 17, according to the order in which it appears in BufThead's Edition, where nothing beyond the title is given. In the edition of statutes published by the Eecord Commission, where the statute is given at length, it appears as 4 & 5 Anne, cap. 4. It was repealed by the Statute Law Eevision Act, 1867. (c) The 39th section of the " Bankruptcy Act, 1869" (32 & 33 Vict, cap. 71), may be said to be the legitimate descendant of this first enact- ment in mitigation of the common law doctrines. Digitized by Microsoft® 106 LECTURE V. unobtrusive section, in an Act which is entitled " An " Act for the Eelief of Debtors, with respect to the " imprisonment of their persons" {a), a most important alteration was effected in the law, by enacting, that, ia I cases " of mutual debts between the plaintiff' and de- " fendant, or if either party sue or be sued as executor " or administrator, where there are mutual debts be- " tween the testator and intestate and either party, one " debt may be set off against the other." And it is under this enactment, as made perpetual and extended by a subsequent Act (5), that the right of set-off still exists at law (c). Such is the short history of the right of " set-off" at common law. To perform what is more particularly my duty, viz., to give a short account of Set-off, as a head of equitable jurisdiction, is by no means so easy. Indeed, the views which have been judicially expressed respecting set-off in equity, by judges of considerable authority, would deprive it altogether of its posi- tion as a distinct head of concurrent equity juris- prudence. Lord Mansfield, ra a passage which has been often quoted, thus expresses his views on the sub- ject {cl) :— " Natural Equity says, that cross demands should " compensate each other, by deducting the less sum (a) 2 Greo. II. cap. 22, s. 13. (5) 8 Geo. II. cap. 24, ss. 4, 5. (c) See now note (e) at page 110, infra. {(1) Green r. Fanner, 4 Burrow, 2214 ; see page 2220. Digitized by Microsoft® LECTURE y. 107 ' from the gi-eater ; and that the difference is the only ' sum which can he justly due. " But positive law, [for the sake of the forms of ' proceeding and convenience of trial, has said that ' each must sue and recover, — separately, in separate ' actions. " It may give light to this case and the authorities ' cited, if I trace the law relative to the doing complete ' justice in the same suit, or turning the defendant ' round to another suit, which under various circum- ' stances may he of no avail. Where the nature of ' the employment, transaction, or dealings necessarily ' constitutes an account consisting of receipts and pay- ' ments, dehts and credits, it is certain that only the ' balance can he the deht ; and hy the proper forms ' of proceeding in courts of law or equity, the balance ' only can be recovered. "After a judgment, or decree 'to account,' both ' parties are equally actors. "Where there were mutual debts unconnected, the ' laiu said they should not be set-off; but each ' must sue. And courts of equity followed the ' same rule, because it was the law; for, had they ' done otherwise, they would have stopped the course ' of law, in all cases where there was a mutual ' demand. " The natural sense of mankind was first shocked at ' this, in the case of bankrupts : and it was provided for ' by 4 Anne, cap. 17, s. 11 ; and 5 Geo. II., cap. 30, ' s. 30. This clause must have, everjTvhere, the same ' construction and effect, whether the question arises Digitized by Microsoft® 108 LECTURE V. " upon a summary petition, or a formal bill, or an " action at law. There can be but one right con- " struction : and therefore if courts differ, one must " be -wrong. " Where there was no bankruptcy, the injustice of " not setting-off (especially after the death of either " partj') was so glaring, that Parliament interposed, " by 2 Geo. II., cap. 22 ; and 8 Geo. II., cap. 24, s. 5. " But the provision does not go to g oods or other " ^l^i^S things wrongfullx detaiped ; and therefore " neither courts of law nor equity can make the plain- " tiff who sues for such goods pay first what is due to "the defendant; except so far as the goods can be " construed a pledge ; and then the right of the " plamtiff is only to redeem." In reference to the particular passage in which Lord Mansfield observes, equity followed the same rule, be- cause it ivas the law, we must of 'course bear in mind his Lordship's anxiety on all occasions to assimilate, nay, almost to fuse, "law and equity." However, some eight years or so before the judg- ment of Lord Mansfield, which has just been quoted, we find Sir Thomas Clarke, Master of the Eolls, who was well acquainted with the doctrine^ of equity, re- ferring the] equitable doctrines to the Roman law (a) . In this case, which is verj^ iU reported, after adverting to the Roman law, and then to the English statute law, in a mode calculated to throw some doubt upon the (a) See Wliit^ker v. Rush, Amtler, 407. Digitized by Microsoft® LECTUEE V. 109 meaning of the passage which we proceed to quote, the Master of the Eolls continues thus :— " Equity took it (a) up, but with limitations and j " restrictions ; and required, that there should be a : " connexion between the demands." And, on a late occasion (b), Lord Justice (then Vice- ChanceUor) Turner, after referring to two cases (e), in which questions as to set-off (or rather stoppage, to adopt the precise word used) came in question pre- viously to the earliest statutory enactment respecting set-off, expresses himself thus : " It is clear, there- " fore, that the rights of debtors and creditors, in " cases of cross demands between them, as their " rights subsisted in equity, were not derived from or \ " dependent upon any statutory right of set-off; and, \ " on the other hand, it seems not to be improbable " that the statutory rights were derived from the " equitable rule." With such an expression from so high an authority, it was of course impossible to omit all notice of " set- off" from a general review of the concurrent equity jurisdiction ; but there will be little inaccuracy in saying that, in reference to cross demands of a purely legal nature, no jurisdiction is practically exercised in equity. (a) i.e. as I understand the udgment, "the rule as to set-ofiF," originally existing in the Roman law, and partially introduced into the English law by statute. (6) Freeman v. Lomas, 9 Hare, 112. Lord Justice Turner, in his judg- ment in this case (see p. 113), intimates his opinion that the report of Whitaker v. Hush is erroneous. (c) Curson v. African Company, 1 Vernon, 121 ; Peters v. Soame, 2 Vernon, 428. Digitized by Microsoft® 110 LECTUEE V. Important questions of set-off do undoubtedly come before the equity courts for decision where one or both of the cross demands is purely equitable ; as, where A being indebted to B, B assigns the debt (which, as a chose in action, is not assignable at law (a) to C ; and then, subsequently, A sues C upon a legal debt owing to him from C. Here, A is creditor of C at law, and C is creditor of A in equity. At law C would have no right of set-off ; but he files his bill in equity, and obtains it. The case of Clark v. CoH (6) is a good sample of the exercise of the equitable jurisdiction in instances of this kind (c) ; and that of Cavendish t. Geaves (d) wiU be found to contain some important priaciples, laid down by the present Master of the EoUs, in reference to equitable set-off. With this exceptionally circumstanced head of equity, my notice of the concurrent jurisdiction of the court must end(e). (a) See now Supreme Court of Judicature Act, 1873, sect. 25, sub-sect. (6), -whereby, subject to compliance with certain provisions as to notice, a debt is assignable at law. (6) Craig & Phillips, 154. (c) See also Unity, &c. , Association v. King, 25 Beavan, 72 ; and as to setting-off a debt due to a testator against a share of residue bequeathed to the debtor, see Bousfield v. Lawford, 33 Law Journal (N.S.) Chano. 26. {d} 24 Beavan, 163. (e) The Judicature Acts, 1873 & 1875, have now conferred on defendants far more extensive rights in respect to set-off and counter claims than were enjoyed in equity. By Order xix., rule 3, of the Rules of the Supreme Court, which is a repetition of rule 20 of the Schedule to the Act of 1873, and which should be read in connection with sub-sections 3 and 5 of section 24 of that Act, it is provided as follows : — " A defendant in an action may set off or set up by way of counter-claim " against the claims of the plaintiff any right or claim, whether such set-off Digitized by Microsoft® J LECTURE V. Ill " or counter-claim sound in damages or not, and such set-off or counter- " claim shall have the same effect as a statement of claim_^in a, etoss " action , so as to enable the Court to pronounce a final iudgment 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 conveuiently disposed " of in the pending action, or ought not to be allowed, refuse permission " to the defendant to avail himself thereof." Digitized by Microsoft® LECTUEE VI. The division of equity jurisprudence reserved for this evening's lecture is one which, 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 diminishing, and may probably, ere long, under the amending hand of the Legislature, vanish altogether (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 bring it within some head of concurrent juris- diction ; but so soon as this difficulty has been sm'- (a) Upwards of seventeen years were needed for the fulfilment of this expectation, which was accomplished by the Judicature Act, 1873, which came into operation in November, 1875. The Lecture, though no longer of much practical importance, possesses, it has been considered, suGScient interest to warrant its republication. Digitized by Microsoft® LECTURE VI. 113 mounted, the equity court takes entire cognisancce of tlie matter. Sometimes, no doubt, the suitor may make a wrong selection of tribunal, and be turned round to law. But this is merely 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 certain amount of equity ; and one may say, with per'fect impartiality, that neither impai'ts a relish to the other. While then, as a member of the Chancery bar, I might be pardoned some lurking feelings of regret at witnessing the decline of any head of equity juris- diction, honesty and good sense call upon me to hail the change as one decidedlj'' 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 in perfecting your theoretical notions respecting equity, but also practi- cally useful. Now the cases in which equity merely assisted the law without assuming entire jm'isdiction over the matter, may be conveniently classed as follows : — Firstly. Cases in which equity aided the infirmity of the law in regard to evidence, comprising — I Digitized by Microsoft® 114 LECTURE VI. (1.) Discovery. (2.) Perpetuation of Testimony. (3.) Examination of Witnesses de heiie ess e (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 /onw?i, as in the case of bills to establish wills (b). (a) This phrase is intended to include the examination of witnesses who are abroad. (b) The old head of juvisdiction 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 piuctice under this head of jurisdiction may 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 v. Eendall, 1 Hare, 152 ; Whitworth v. Whyddon, 2 Macn. & Gor. 52 ; Barton v. Rock, 22 Beavan, 81. But under the Act 20 & 21 Vict. cap. 77, the Court of Probate had 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 of Chancery to appoint a receiver was not put an end to, a stronger case for the appointment was needed to be made than before the Act ; Hitchen v. Birks, L. K. 10 Eq. 471. And when an administrator pendente lite had been appointed by the Court of Probate, after bill filed for a receiver, the Court of Chancery refused to appoint a receiver ; Veret •1. Duprez, L. R. 6 Eq. 329. On the other hand, the Court of Probate v.-ould appoint an administrator pendente lite, if it was just and proper so to do, although a receiver might have been already appointed by the Court of Chancery. Tichbome v. Tiehbome, L. K. 1 P. & D. 730. The 'occa- sions, for resort to the jurisdiction of the Court of Chancery under this head became, therefore, after the passing of the Act, very rare. There must, however, be a suit pending in the Court of Probate to found the jurisdiction of that Court, and if there were no suit pending there, the Court of Chancery exercised its old jurisdiction ; Parkin r. Seddons, L. E. 16 Eq. 34. Digitized by Microsoft® LECTURE VI. 115 Let us take the first subdivision of the first class, viz., Discovery. In order to appreciate accurately the necessity for the auxiliary jurisdiction of equity in affording discovery, we must cast a 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 litigation was disqualified from givmg evi- dence. Bentham, I believe, first pointed out that, as a rule, no witness ought to be disqualified on account ■ oiinterest only, and that the objection to the evidence ; of an interested person ought to be treated not as an I objection to the reception of his evidence, but merely j as detracting fi:om its tceicib^ 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), wliich 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 a) Ski WiU. IV. cap. 42, sg. 26, 27. (6) 6 & 7 Vict. cap. 85. (c) The lectures were read in 1857-58. I 2 Digitized by Microsoft® 116 LECTURE VI. then passed (a) rendered, vs'ith a few exceptions (h), even plaintiffs and defendants competent and compel- lable to give evidence. Now you will 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 bj' 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 htigant, but which, if given in evidence, would afford a good defence to the action. Let me put, as a possible case, that of a plaintiff suing for goods sold and delivered, the defendant having personally paid the price to the plaintiff in cash. At common law the defendant was (a) 14 & 15 Vict. cap. 99. (6) The exceptions, so far as relates to civil proceedings, have now dis- appeared. They were abolished, as to husbands and wives (except in proceedings for adultery), by 16 & 17 Vict. cap. 83, and after intermediate enactments (21 & 22 Vict. cap. 108, a. 11 ; and 22 & 23 Vict. cap. 61, ». 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. Digitized by Microsoft® LECTURE VI. 117 remediless. The plaintiff proved the delivery of the goods, and recovered the value. Equitj', however, allowed the defendant, under these circumstances, to file a bni 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 j perjure himself, was obliged by his answer to admit f| (though it might be with his own colouring) the sub- stantial facts of the case. This answer, although not evidence in the ordinary sense, might be given in evidence by the other party as an admission made by the plaintiff at law, just as any Ietter~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 will understand that a plaintiff at law had just as much right to file a bill for discoveiy in equity in aid of his action at law, as had a defendant at law against the plaintiff in aid of his defence. And you toII bear in mind that, in addition to the cases in which the object of the bill 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 borne in mind, howerer, that the more searching cha Digitized by Microsoft® J 118 LECTURE VI. By these means the shortcomings of the law in respect to evidence were in some measure remedied. I say in some measure, because th e 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 equitj', 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. But the discovery granted by the court of equity as the handmaid of the courts of law, was obtainable I racter of the equity procedure in reference to production of documents was not "per se " a suificient ground for a bill of discovery. Thus a bil' I for discovery would not lie against a mere witness, notwithstanding the ! inferior efficacy of a suipasna duces tecum ; Fenton v. Hughes, 7 Vesej', ' 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. K. 13 Eq. 394. (a) There vas 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 ; Grlasoott v. Copper Miners' Company, 11 Simons, 305. Digitized by Microsoft® LECTURE VI. 119 onlj'- on veiy 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 ultimately successful, either as plaintiff or as de- fendant in the action at law, had to bear the entire costs of his bill of discovery. Consequently, ex- cept where the amount in dispute was large, a bUl of discovery in equity was too costly a weapon for use. "When therefore we consider the onerous terms upon which onlj^ the equity courts gra,nted discovery in aid of actions or of defences to actions at law, we cannot but ^iew 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. Th e sixth section is in these words : " Whenever any " action or other legal proceeding shall henceforth be " 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, (a) 14 & 15 Vict. cap. 99. Digitized by Microsoft® 120 LECTURE VI. " or the Court 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 making the application to inspect aU " 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 irhicli previous to the "passing of this Act, a discovery might have been " obtained by fling 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 " court 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 therebj^ con- Digitized by Microsoft® I^ECTUEE VI. 121 ferred of calling the opposite i^arty as a witness, to be all that was reaUy needed. In reference to the jurisdiction to compel inspection thus conferred hy the Evidence Act, the common law courts decided shortly after it came into operation, that the party applying for inspection, must make out upon affidavit a prima facie case, stating with sufficient distinctness the nature 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 bill 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 (b), further and more elaborate provisions for compelling discovery were made. By the 50th 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 i order the opposite party to answer on affidavit what . documents he has in possession or poiver relating to , the matters in dispute ; and upon such affidavit being made, the court or judge may make such further order (o) See Hunt v. Hewitt, 7 Exchequer R. 236. (U) 17 & 18 Vict. cap. 125. Digitized by Microsoft® 122 LECTUEE VI. thereon as shall be just — i.e., order an inspection or not. The 61st section confers on either party a power of delivering written i nt errogatorie s to the opposite party, provided such party would be liable to be exa- mined as a witness upon such matter ; and the partj' interrogated must answer by affidavit, or, in default, a contempt of com't will be deemed to have been com- mitted. 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 confen-ed by this last Act, the following points appear worth noting : — 1. The jurisdiction under the 50th 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 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. 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 ivhich 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- (a) See Thompson v. Robson, 2 Hurlstoue & Norman, 412 ; adhered to in WooUey v. Pole, 14 Common Bench Rep. (N.S.) 538. (6) See Hewett v. Webb, 2 Jurist, N.S. 1189 ; Bray v. Finch, 1 Hurl- Digitized by Microsoft® LECTURE VI. 123 mon law jurisdiction under this section must occa- sionally fall short of the requirements of the party seeking discovery ; unless, indeed, the practice he uitro- ,, duced of first delivermg an interrogatory respecting ; documents under section 51, and then, after the requisite knowledge respecting documents las thus been gained, applying for inspection under section 50 (a). 2. In regard to discovery upon oath under the 51st section, it will 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- 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 j)articular 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- stone & Norman, 468 ; Evans v. Louis, L. E. 1 C. P. 656. The practice -in the Admiralty Court followed that in Chancery ; The Minnehaha, L. E. 3 A. & E. 148. (a) It is belicTed this practice was introduced to a considerable extent ; see Adams v. Lloyd, 3 Hurlstone & Norman, 351 ; though if the ratio decidendi in that case was generally adhered to in the Common Law Courts, the discovery obtainable must have fallen far short of what might have been gained in Equity. According to the Chancery practice the oath of the person interrogated was accepted as conclusive only upon the question whether the documents mentioned by him were all that he had relevant to \ the matter in question ; but he was bound to schedule or describe all he had, whether privileged from production or not, leaving the Court to decide whether they should, or not, be produced. Digitized by Microsoft® 124 LECTURE VI. 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 com-ts is to treat the af&davit 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 interrogating partj', 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 auxiliary jurisdiction of the courts of equity ? Practicalh', I believe a biU of discovery in equity is hardly ever now heard of. But circumstances might occur at the present day to render desii'able a resort to eqiiity for discovery ; say, for instance, a narrow construction by the common law courts of the powers of compelling inspection of documents. In such a case, if the stake were suffi- ciently large, a bill of discoveiy in equity might be desu-able. 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, (a) Also, in afioordaDce with the exception made by the 14 & 15 Vict, cap. 99, a. 4, 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. cap. 68, abolishing the exception. Digitized by Microsoft® LECTURE VI. 125 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. Pryor (b), where it was argued that in consequence of the greater latitude assumed by courts of law in modern times, the hill in that case should have been a bill for discovery merely, and not for discovery and rehef. 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 bill 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- " quently recovered in equity, which now could be " without difficulty recovered at law. * * * " I cannot hold that the jurisdiction is gone merely " because 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, (o) See Dunn v. Coates, 1 Atkyns' Kep. 288 ; and an Anonymous Case, 2 Vesey senior, 451. (J) 7 Vesey, 237. Digitized by Microsoft® 126 LECTUBE VI. the discussion was respecting instances in which the court had been in the hahit of affording relief in con- sequence of the inadequacy of the common law juris- 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 efiicacious 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 interested in disputing it ; and yet, in consequence of the future or reversionarj' 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 vihoj_^_?lv!&, would be able to give evidence in its support. In this state of things, it is competent to (a) The observations of Lord Hatherley (wlien 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. I Subsequently, 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 V. -C. Wickens ; Brown r. Wales, L. E. 15 Eq. 142. Digitized by Microsoft® LECTURE VI. 127 the party claiming such future interest to file a bill in equity against all those who are interested in disputing [ it, asking that witnesses may be examined respecting 1 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 Berkele}', the first plaintiff on the record (there called Lord Dursley, and then about fifteen) being the same person who in later life was well 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 bill stated that certain estates stood limited to the Earl for life, 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 perpetua- tion of testimony was sought, viz., an alleged marriage between the Earl and his countess in 1785. There ! (a) It would seem that originally the practice was to file a bill against the witnesses themselves. See Earl of Oxford v. Sir James Tyrell and Others, Calendars of Proceedings in Chancery, vol. i. p. cxx. (b) 6 Vesey, 251. (c) The case is, I believe, not reported, but the Minutes of the Evidence taken in 1799 and 1811 wiU be found amongst the House of Lords' printed papers. Digitized by Microsoft® 128 LECTUBE VI. 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 circmn- 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 ^ entail ; but " tTie~jucrgiSents of Lord Eldon (he de- livered two) are replete with valuable information, and will be found 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 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 bill for perpetuating testimony. This was the point upon which Lord Eldon's decision turned. He argued thence that, a fortiori, Admiral Berkeley and his infant son, (a) See now "The Legitimacy Declaration Act, 1858" (21 & 22 Vict, cap. 93.) Digitized by Microsoft® LECTURE VI. 129 though only remote remainder men, might, as having vested remainders, have sustained a bill against the infant plaintiffs to perpetuate testimony of their ille- flitimacy, and that therefore the plaintiffs were, e con- verso, entitled to file a bill against them. Secondly. — The court declines to pei-petuate testi- mony of a right which might ha, immediately barred by the defendant against whom perpetuation is sought, as in the case of a remainder man filing a biU against tenant in taU_in possession. Thirdly. — A mere expect ancy, or spes suceessionis, 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 relationsliip. 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; amoral 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 bill was filed at that " instant, the plaintiff could not qualify himself as "having an interest in the subject of the suit." We 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 pro perty was inYol ved. This (which I may observe, you will not find laid down in the case before Lord Eldon) was admitted in the (a) See Smith v. Attorney-General, Romilly's Notes of Cases, 54. K Digitized by Microsoft® 130 LECTURE VI, 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 marriage or bastardize the children. In 1841, the eldest of the children, then of full age and calling himself " 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 I House'of Commons to be as eldest son of a peer of the realm. (a) 10 Clark & Finnelly, 289. Digitized by Microsoft® LECTUEE VI. 131 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 hunself Earl of Leicester, and pray- ing that their lordships would provide such remedy and adopt such proceedings as to their lordships might seem meet (a). The result of this petition was the introduction by (a) The petition concluded thus : — ' ' That some of the witnesses by whom only many of the most important " facts can be proTed, 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 " adulteiy, 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 bUl in Chancery to perpetuate testimony ; " and he submits that it would be not merely an anomaly, but an in- " 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 " precedent, nevertheless 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^ " will provide such remedy and adopt such proceedings as to your lordships " may seem meet." Digitized by Microsoft® '^ - 132 LECTURE YI. Lord Cottenham into Parliament of a bill, 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 means 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 entitled upon the hapvenin g of anjj__f2i,ture even t 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, shoiild be entitled, from and after the passing of that Act, to file a bill in the High Cotirt of Chancery to perpetuate any testi- mony which might be material for establishing 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 Crownmight be interested. The chief extensions made by this Act were shortly iis follows : — First. — The right to perpetuate testimony was ex- tended to persons clmndng_title^ dignities, n 'c_ nffi nefi, 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 fut ure event, &c. &c., may now Digitized by Microsoft® LECTUBE VI. 133 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 Idn may equall,y 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, appUed 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 com-t in suits of this kind demand notice. 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 in the (a) An- elaborate protest against the passing of the Private Act was signed by Lord Cottenham and six other peers ; see 10 Clark & Finnelly, 314. Digitized by Microsoft® 134 LECTUEE VI. jurisdiction itself («). The witness, it has been ob- served, gives his testimony without being under the restraint of any of those penalties which the law im- poses U2on__perjury ; for during his life the evidence is not pubhshed, and after his death human tribunals can no longer reach him. The evU 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 examiaation in chief. But it has been decided that the alterations in equity procedm-e introduced iu 1852 in reference to taking evidence, apply to the case of examining witnesses de bene esse (b) ; and upon principle, therefore, witnesses in a suit to perpetuate testimony must either be examined vivd voce before an , examiner, the other side attending and giving evidence, or they must depose by af&davit, and there will then be the right of cross-examining upon the affidavit. 2. Bills to perpetuate testimony are never brought to a hearing (c) ; 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 (a) Angell v. Angell, 1 Simons & Stuart, 83, p. 89. (b) Cook V. Hall, 9 Hare, App. xx. (c) And a motion to dismiss a till of this kind for want of prosecution was irregular. The proper application was that the plaintiff do proceed within a given time, or pay the defendant his costs ; Wright v. Tatham, 2 Simons, 459. See further, EUice v. Koupell (No. 2) ; 32 Beavan, 315. Digitized by Microsoft® LECTUKE VI. 135 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 {a). 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 eitlier that at the time of trial important witnesses actually abroad might still 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; 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 exannnation of witnesses abroad, or of aged or infirm witnesses, lay only where litigation had actually commenced {b). And there were distinc- (a) Vaughan v. Fitzgerald, 1 Schoales ^ Lefroy, 816. (b) Angell v. Angell, 1 Simons & Stuart, 83. On the other hand, it Digitized by Microsoft® 136 LECTUEE VI. tions in reference to the circumstances under which publication of the evidence was permitted {a). But there would be little 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 ip), which provided for taking evidence in India in reference to actions and j suits of which cause arose in India. In 1830 (c), i power was given to the common law courts, to order an examination jy)on_interrogatories or otherwise, of any witnesses .within the jurisdiction, and to issue commissions for the examination of witnesses out of the jurisdiction ; and from this Act we may date the practical extinction of the head of auxiliary jurisdiction, which, in consequence, we have merely glanced at. Second^. — 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 was a fatal objection to a bill for perpetuation of testimony, if taken at the proper time, that the matters in dispute might be made the subject of immediate judicial investigation ; EUice v. Koupell (No. 1), 32 Beavan, 299 ; Earl Spencer v. Peek, L. K. 3 Eq. 415. And see further, as to the distinction between " perpetuating testimony " and " examination de bene esse," the judgment of the late Master of the KoUs in Ellice v. Eoupell (No. 2), 32 Beavan, 308. (a) Harris v. Cotterell, 3 Merivale, 680. (5) 13 Geo. III. cap. 63, =. 44. (c) By 1 Will. IT. cap. 22, b. 1. Digitized by Microsoft® LECTURE VI. 137 the proper /oriMii, as in tlie case of bills to establish wUls. Here the jurisdiction, 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 auxUiary jurisdiction in cases of the first class. In cases of the first class the jurisdiction 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, " Bills of Peace." It occasionally happens that many persons, possess- ing 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 tenants. Here the lord might, if he chose, litigate separately with 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 favourable 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 Digitized by Microsoft® 138 LECTUEE VI. 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 failures 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 liti- 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 o f York y. Pllkington (a) is especially iustruc- 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 first of opinion that the bill would not lie in the particular case, and subsequently that it would. The bUl 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 rights either as lords of manors, or occupiers of th e 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, (a) 1 Atkyns, 282. Digitized by Microsoft® LECTURE VI. 139 and parson on the other. And upon this ground he, iu 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 establish a modus. Occasions may, how- ever, even at the present day, occur, when a bill of peace would be a fitting step. You will find in " Van Heythusen's Equity Precedents " (6) a form of a bill, 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 corn at a particular mill. 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, (a) In a 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 validity 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. Digitized by Microsoft® 140 LECTUEE VI. there is another in which, although the parties litigant i be merely A on the one hand and B on the other, trial after trial may be had, subject only to the check im- i posed by the fear of having to pa^ costs. I allude to j p roceedings in ejectm ent. The action of ejectment was, if you 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, aftet entry, made a lease to Doe. Next, it was supposed, that while Doe was on the land, claiming under the lease ; Eoe, claiming title under Thompson, the person reaUy in possession, had come and turned Doe out. Eoe was calledjthe^^ual ejector. To seek redress for this imaginary wrong, an action was commenced in the name of Doe against Roe. Doe, on the demise of Jones — the real claimant — against Eoe (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- 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, entr i i, and ous ter. In its subsequent stages, the suit proceeded so as to try the real point between Jones and Thompson; and (a) Doe dem. Jones v. Koe. Digitized by Microsoft® OjEctuee VI. 141 ultimately 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 anomaUes 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 ejeptment — for the ejectment woiild 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 thirteenth volume of Meeson and Welsby's Reports, you will find a case of Doe dem. William IV. v. Roberts. Again — and it is with this anomalj"^ we are here concerned, since the plaintiff was Doe, Goodtitle, or some other imaginary person— ^f 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 ill 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 s um- marily a fresh ejectment UJiiiL the co§ts in the_ former 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. Digitized by Microsoft® 142 LECTURE VI. This branch of jurisdiction cannot be said to have been finally settled until the case of the Earl of Bath V. Sherwi n (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 bringing 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, by reason " of the multiplicity of suits at law ; the like in settling " boundaries, &c. : therefore this court will interpose " 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 fall under the general notion of a bill of " peace, this being only between A and B, and one man " is able to contend against another ; and if the courts " of law on new demises will not sufl'er 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 (a) Precedents in Chancery, 261. Digitized by Microsoft® LECTURE vr. 143 " law, wliicli 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 injunction (a). Now, with reference to biUs of this last class, the Common Law Procedure Act of 1852 (b), though con- signing Doe and Eoe 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, may be ordered to give security for costs. But subject to these restrictions the right to bring repeated actions still exists, and the auxiliary jurisdiction of equitj' to quiet titles against vexatious ejectments must therefore be regarded as still needful and in force (d). (a) i Brown's Parliamentary Cases, 373. (b) 15 & 16 Vict. cap. 76. (c) 17 & 18 Vict. cap. 125. (d) It is conceived that the 207th section of the Act of 1852 would not now apply to judgment obtained under the existing practice in an " Action for the Recovery of Land," and that the jurisdiction referred to is no longer needed. And although formerly a defence in equity could be made available only by bill, as there could be no equitable plea in an Digitized by Microsoft® 144 LECTDBE VI. Of the heads of auxiliary jurisdiction mentioned by me at the outset, " Bills to Establish WiUs " 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 (6). When, upon the death of a person, a document is produced purporting to be his will, two questions obviously arise. First, is the document I'eally and legally his will? — that is, was it really executed by him when of sound imderstanding, 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 juris- diction was altogether until the late Act (c), and indeed still remains to a considerable extent, different accord- action of ejectment, Neare v. Avery, 16 Common Bencli Reports, 328 ; now, under the Bules of the Supreme Court regulating "Actions for the EecoTery of Land," a defendant who is in possession need not plead his title unless his defence depends on an equitable estate or riglit, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff — in which excepted cases he must plead his defence. See Order xix. rule 15. (a) i.e., 20 & 21 Vict. cap. 77, passed in the session previous to the delivery of the Lectures. {b) 20 & 21 Vict. cap. 77. Digitized by Microsoft® LECTURE VI. 145 ing as the property affected by the will was or is real or personal estate. We will take Personal Estate first. 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 Eis personal estate ; and apply the same for the spiritual benefit of the soul of the departed, and the temporal advantage, of Holy Church (rt) . Hence, where a deceased person had made a will, it was natural that it should be produced to the " ordinai-y. " 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 (a) The charter of King John of 1215 contained a clause intended tt remedy this abuse, and expressed as follows ; — " S'i aliquis liber Jiomo intestatus deceaserit bona sua per m anus proximorum parentum suorum et amicorum, etper visum eccleHip_ distribuer>,tur, salvia unicuique debitis quo: defuTictxis ei debebat. " In the re-issue of the charter hy Henry III. after the death of John this provision and many others, such as those relating to scutages and aids, debts to the Jews, &c., are not contained. The charter of Henry III. contains a respiting clause which, after refer- ( ring to various omissions, reserves them for further consideration ; but the distribution of the goods of intestates is not amongst the matters mentioned to have been omitted, and was doubtless advisedly not so mentioned, the non-mention being p robably part o f the grice of the c oncurrence of ^walo, i the P apal Lega te, whose name appears at the head of those by whose counsel | t'Ee'charter of Henry III. was issued. The provision does not appear in I the subsequent charters of Henry, which have no respiting clause. If the foregoing abortive attempt be laid out of account, the statute of the 13th Edward I. stat. i. cap. 19, first compelled the ordinary to pay the deceased's debts. The 31st Edward III. cap. 11, first took the ad- ministration from the ordinary, and gave it to the next of kin. L Digitized by Microsoft® 146 LECTUEE VI. 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 will, except so far as might he necessary for determining to whom probate, or administration with the will annexed, should be granted. The function of construing wills, so far as I related to personal estate, devolved on the equity courts, '; and still i;emains with them as part iaf their jurisdiction ( in reference to the administration of the estates of tes- ' tators and intestates ; a head of exclusive jurisdiction which was touched upon in my fourth lectiu-e. Secondly. — As to Real Estate. Here, subject only to the qualified interposition of the equity courts, which wiU be presently explained, the coxmaionJ^s^jiQmi, and the jury, each acting within its fitting province, ) were alone the judges both of factum and construction. The question of will or no will was tried before a jury at Nisi Prius. Questions of construction were decided by the court in Banc. With the question of factum, the Ecclesiastical Court had here no concern. No investigation in that court, however elaborate in re- ference to the factum of the will, 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 Wills Act of 1837 (a), because the Statute of Frauds (6) had imposed special formalities (a) 1 Tict. cap. 26. (6) 29 Car. II. cap. 3, s. 5. Digitized by Microsoft® LECTURE VI. 147 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 P^erogative^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 will. 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. But when Lord Langdale's Act had subjected wills, both of personal and real estate, to the same forms of execution and a ttestatio n, the divided jurisdiction shocked common sense more strongly. That first a learned judge of the Prerogative Court, and afterwards, on apiDeal, the Judicial Committee of the Privy Council, should solemnly determine a will 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 (a) i.e., 20 & 21 Vict. cap. 77. L 2 Digitized by Microsoft® 148 LECTURE VI. out the nature of the Chancery jurisdiction, in regard to " establishing wills," — the head of auxiliary equity tmder consideration. Under the state of law which we have ahove 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 vahdity of the wlU 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 re- siduary legatee, and say, " decide upon the factum of this will." '' Under these circimistances. Chancer}- lent its aid ; and the devisee might obtain its assistance in two different ways. First. — He might file a bUl against the heir in the nature of a bill for j)erpetuating the evidence of the testator's soundness of mind, and of his execution of the will ; — a kind of bill which, in technical language, was commonly called a bill to prove the will per testes. The witnesses to the will were examined as to the testator's sanitj', and the fact of execution ; and the cause, like other causes for the perpetuation of testimony, was never brought to a hearing ; though, unlike ordinary causes of this description, the wit- nesses' depositions were published at once (a). This (o) This ■was expressly so stated by Graham, B. , in the case of Harris v. Digitized by Microsoft® LECTUEE VI. 149 process was commonly called proving a will in Chancery. Secondly. — The devisee might file a bill against the heir seeking to have the wiU esta blished, 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 " - Dgi^'^san^ vel non." In this case the Court of Equity retained the bill until the question of its validity had been determined in 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 invalidity either 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 ]^o]isey. 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 Cotterell, 3 Merivale, 680, where the practice as to publication was care- fully considered. Vice-Chancellor 'Wood, in his elaborate judgment in Boyset). Rossborough, 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 bills to perpetuate testimony. (a) Kay, 71 ; on appeal, 3 De Gex, Macn. & Gror. 817. There was an appeal to the House of Lords, but the judgment of the Court of Appeal was submitted to without argument, 3 Jurist (N.S.), 373. Digitized by Microsoft® 150 LECTURE VI. of the legal estate against the heir, although the latter had hrought no ejectment. It was argued strenuously that some circumstance, either of tru st 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 established against the heir (a). You will find in the Vice-Chancellor's judgment such a complete review of the whole question, that I am the less concerned at the meagreness of my statements here. Let us now consider the effect of the Act of last session (b), which has just come into operation. By that Act a new court, called the Court of Prob ate, is established, to which aU 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 already granted, all persons interested in the I (o) And a devisee was equally entitled to have the -vrill under wHcli he ; claimed established in equity, not only against the heir, but against al persons setting up acKerse rights ; as, for instance, persons claiming under ' — E!??"" ^"' ^^ disputing the validity of the latter one ; Lovett v. Lovett, ! 3 Kay & Johnson, 1. But the heir had no correlative right to file a bill Nj I 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. (5) 20 & 21 Vict. cap. 77. Digitized by Microsoft® LECTURE VI. 151 I'eal estate affected by the will, such as heirs, devisees, &c., shall be cited (a). The latter provides that where the will is proved in^^gfilemn form, or its validity other- wise established in the Com-t of Probate, and when probate is refused or revoked, or the invalidity of the i win is otherwise declared, the decree of the court shall j be binding on the persons interested in the real estate (b). 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 respecting the factum of testamentary instruments win, 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 Court of Probate ; and the heir almiebeing interested in dis- puting its validity, the validity may be first questioned in an action of ejectment (c). (a) See Lister u. Smith, 3 Swabey & Tristram, 53. The 35th section confers on an heir-at-law an absolute right to demand a jniy. (ft) 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 aifect heirs or other persons, unless cited or deriving title under or through a person cited. (c) Thus, for instance, a testator dies, having by his will, the validity of which is doubtful, devised his real and personal estate (the former of which descended to him ex parte paternd), upon trust to sell and convert and pay the net proceeds, in unequal shares, amongst his half-brothers and sisters ex parte maternd, who are his next of kin. Here assuming the real estate to be large in proportion to the personal estate, it may be Digitized by Microsoft® 152 LECTURE VI. We may, indeed, have the following events occur- ring :— First. — Probate in common form. Secondly. — Litigation in ejectment, calling in question the testator's sanity, or the genuineness or valid execution of the alleged will. Thirdly. — The question of sanity, genuineness, or validity of execution, litigated a second time iu 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, a,s between the heir and person claiming as devisee, can have no effect in the Probate Court as between those claim- ing the personal estate under the will and the next of kin (a). The prospect of a different finol result, in respept 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 the interest of all the next of iln, including those who take the smaller shares, to support the will ; which therefore may very likely he proved iu 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 will 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 iu the Probate Court. Again, at first, the personal estate may be thought trifling, and after litigation at law valuable personalty may be discovered. (a) Nor can the solemn decision of the Probate Court affect a devisee who may happen not to have been cited ; e.g., a remainder-man not in esse at the time of the litigation in that Court, and therefore not cited. Digitized by Microsoft® LECTURE VI. 158 by the late Act (a) 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 tribunals 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 (b). As respects the head of equity now under consider- ation, " Establishing Wills," that must, to a great extent, still prevail. When the will has been merely proved in common form, the devisee wiU have no power under the Act of provoking the exercise of the contentious jurisdiction of the Court of Probate, and he wiU remain in the same position as he was under the old state of law. If harassed by the heir, a bill to establish the will will obviously be his simplest course ; if in quiet possession, but wishing to establish his title while the (a) 20 & 21 Vict. cap. 77, ». 39. (5) 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 Banks V. Goodtellow, 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- " tary disposition, is sufficient to deprire a person of the power of disposing " of his property," affords an illustration of the inconvenience adverted to in the text. Digitized by Microsoft® 154 LEOTUEB VI. evidence is at hand, he must still, unless he can, through the friendly assistance of some next of kin, hring about a contentious litigation in the Court of Probate, resort to the Court of Chancery as hereto- fore. Digitized by Microsoft® LECTUEE VII. My selection of the wife's separate estate for con-" sideration as a particular instance of the exclusive jui'isdiction 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 Court, been exercised more beneficia,lly than in build- ing up the doctrines relating to the wife's separate estate. It is no small 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 Chancery," 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 Digitized by Microsoft® 156 LECTDRE vn. may be mentioned the circumstance that the equitable doctrines relating to the separate estate are of such recent origin, that their birth and growth can be traced with far greater distinctness than those of almost any- other head of equity. The earliest commencement I 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 ivife " is canvassed and criticised with the greatest minuteness, and when the approach of a straggle 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, Re- 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 be found in the Married Women's Property Act, 1870 (amended by the Act of 37 & 38 Vict. cap. 50), of which a summary is given pages 57, 58, ante, but which affects only in a very minute degree the points discussed in this lecture. Digitized by Microsoft® LECTURE VII. 157 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 (buUt up as it has been bit by bit) the chronological method is gener- ally the soundest ; 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 Uves 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 courtesy. 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 durinc/ the marriage , was alike foreign to the principles of the common law and to the general feeUngs 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 (b) : " But by the (a) Page 56, supra. (b) Coke Litt. 133 a. Digitized by Microsoft® 158 LECTURE Vn. " 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 contiauall care and study " is for the publike, et circa ardtia regni) to be " 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/eme sole by the common law." The earliest instances of conferring anj'thing 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 sec ured to the latter. Such were the cases of Sankey v. Goulding (a), decided in Queen Elizabeth's reign (a) Caiy's Kep. 124, Edition, 1820. This is the earliest reported case that I have hitherto met with recognising a separate maintenance. 1 transcribe it verbatim : — " The plaintant setteth forth in her bUl 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 Henry Golding, deceased, " to the use of the plaintant ; which bonds are come to the defendant, as " administrator to the said Henry Golding, 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 " Sanky alias Walgrave plaintant, Goulding defendant. Anno 21 & 22 •• Eliz." The wife's, or perhaps one ought to say the mdoic's right to her Digitized by Microsoft® LECTUBli; VII. 159 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 agreement, 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 coverture. In " The Perfect Convej'ancer," 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 adhered to the royal party and practised only con- veyancing during the commonwealth, you may see a precedent of a limitation of a term to trustees upon trust forJhe_se£arat^j^e_of_a ma,rried womanj which in fulness and accuracy of language is hardly surpassed by our modern forms (6). It purports to be a demise after marriage by a hus- paraphernalia, 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, different from that of the separate estate, as having no permanent vitality during the coverture; since the husband may sell or give away the wife's parapherrudia 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 v. Tresilian, 3 Atkyns, 358 ; Graham v. Londonderry, 3 Atkyns, 393. (a) Referred to at TothUl, edit. 1649, p. 97 ; edit. 1671, p. 161 ; and more fully at 1 Cases in Chancery, 118. There is a kind of intermediate case of separate maintenance mentioned at Tothill, 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 uuthrift. (6) Bridgeman's Precedents, edition of 1682, p. 118 ; somewhat singu- larly, the precedent is repeated verbatim at p. 125. Digitized by Microsoft® 160 LECTUEE VII. 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 Hve. The principal trust is as fol- lows : — " Upon such trust and confidence neverthe- ' less, as is hereiaafter mentioned, that is to say, that ' they the said [trustees], 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, bene fit, and m ain- ' tenance of the said [wife], 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 during ' 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, from time to time, to deduct), into ' the proper hands of the said [wi/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 Digitized by Microsoft® LECTURE VII. 161 hundred years ago — 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 conveyancing skill ; and it may perhaps be regarded as the legitimate ancestor of our present pin-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 claun 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 bj' 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 " andTgoods she~had should be at her own disposal." Final judgment does not appear to have been given ; (a) 1 Cases in Chancery, 117. M Digitized by Microsoft® 162 LECTUEE VII. ■ but the Court intimated its view to be that, " where " an agreement between baron and feme is to have " execution during the coverture, the marriage extin- " guisheth such an agreement ; " a result which I may observe was not only unsound, as importing into equity a mere technical rule of law, but difficult to sustain upon 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 poiver 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 tenour of the report shows that a separate estate in the corpus of property was then known to the equity courts. 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 (h), that at the time when the number was written (and it bears date some seven years later than the decision in Gore v. Knight) (a) 2 Temon, 635. (6) Vide page 165 of the treatise. Digitized by Microsoft® LECTURE VII. 163 the separate estate was by no means in general usage ; and the views put forward hy Addison may perhaps be 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 Fribble), 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 imwilling to "invade any of their ancient rights and privileges; "but as the doctrine of pin-money is of a very late f " date, unknown to our great-grandmothers, and not 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 M 2 Digitized by Microsoft® 164 LECTDEE VII. general use at the time wlieii Addison wrote, is derivable rather from the tenour of the whole article than from any particular passage. Throughout the whole essay, which treats the mere existence of a ^eparate_allow- ance as objectionable on the general principle " that " separate purses between man and wife are as un- " natural as separate beds," we find not a single allu- sion 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 fin-vioney ; 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 independent^ 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 Digitized by Microsoft® LECTURE VII. 165 wife herself, with a dii'ection that it should he for her separate use. "What then was the result? It was suggested that the property became the wife's, and, through her, her husband's, and that lie was bound by- no agi'eement. The answer was clear — the separate estate^ was a species of trust — the trust should notjfail for wa nt of a tru stee — if the hvisband 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 Master of the EoUs, Sir Joseph Jekjdl (6) ; since which case it has, I believe, never been put forward. You will however of course bear in mind, that where no trustees are interposed, the legal rights of the husband and of those claiming through him 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 Avife (d). Passing on now some seventy years or so, we reach (a) Harvey v. Harvey, 1 Peere Williams, 125. (6) Bennet v. Davis, 2 Peere Williams, 316. (c) This statement must now be qualified. It was settled, after some difference of opinion, that a Court of law would, upon an interpleader issue, take notice of equitable claims, Kusden v. Pope, 2 L. K. 3 Exch. 269 ; and therefore of the equitable rights of a married woman in respect to chattels seized by the sheriff for the debt of her husband, Duncan v. Gashin, L. R. 10 C. P. 554 ; and so far as respects chattels made separate property by the Act of 1870, the 11th section (see p. 57, ante) gives the married woman the same remedies, both civil and criminal, in her own name as if she were unmarried. (a) Newlands v. Paynter, i Mylne & Craig, 408. Digitized by Microsoft® 166 LECTURE VH. a most important epoch in our 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 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 Pyhus v . Smitlij 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 words "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 biU to have the benefit of their security. The nature and result of the suit is thus graphically described by Lord Eldon (6). " So in " Pyhus v. Smith, the Comi; settling the property (c), (a) 1 Vesey Jun. 194 ; 3 Brown's Ch. Ca. 340. (h) Jones v. Harris, 9 Vesey, 493. (c) His Lordsliip here alludes to tie settlement of 1785. Digitized by Microsoft® LECTURE VII. 167 with all the anxious terms then known to convey- ancers, in a day or two afterwards, while the wax was yet warm 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 suchj efforts to protect her (meaning Mrs. Vernon, the! V wife), was upon authority obliged to withdraw that\ protection." In fact. Lord Thurlow, after struggling | hard to extract from the words "from time to time" a fetter on alienation, held that he was bound by the decisions. However, in delivering judgment in Pybus v. Smith, Lord Thurlow 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 " alie nate it , he saw no objection to its being done ; " but such intention must be expressed in clear " terms " (a). And subsequently on becoming a trustee of Miss "Watson's marriage settlement, he 1 directed the words " and not by anticipa tion " to be 1 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 Tidlett v. Arms trong , 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- j plete solution, and which must be noticed before \ touching the case itself. (a) 3 Brown's Ch. Ca. 347. Digitized by Microsoft® 168 LECTUEE vn. In considering the eifect of any given clause con- ferring the separate estate with restraint on anticipa- tion, the first question of course was, and still is (a) to ascertain whether the separate use and restraint were in terms limited to some particular coverture, or were intended to apply generally to every marriage. This must occasionally be a matter of some difficulty (b). But further, where the clause _was _^eneraZ 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 ease ? Would the separate use with its attendant restriction arise upon a future marriage, in despite of the ferae ? or had the feme power to alien while sole / This was a difi&culty entirely due to the introduction of the restrictive clause, since, under a limitation to her separate use (a) A question to be considered in precedence to those mentioned in the text is, of course, the general force and effect of the clause itself. For instance, in a recent case, Croughton's Trusts, 8 Ch. D. 460, it was held by Bacon, V.-C, that words restraining " anticipation, '' and making the receipt of the married woman a sufficient discharge, were insufficient to operate as a restraint on her right to receive the corpus of a fund pro- ducing no income. In a previous case, Ellis' Trusts, L. R. 17 Eq. 409, it was held by the Master of the Rolls that where a fund producing income is given to a married woman, and the gift is followed by a restraint on anticipation, the married woman is prevented from receiving or alieuating the fund during coverture. If these cases are to stand together, the true distinction must, it is conceived, be sought in the different terms of the clauses restraining anticipation, and not in the different natures of the property. (S) See, as instances, Gaffee's Settlement, 7 Hare, 101, and on appeal, 1 Macn. & Gror, 541 ; Moore v. Morris, 4 Drewry, 33 ; and Hawkes v. Hubback, L. R. 11 Eq. 5. Digitized by Microsoft® LECTUEE VII. 169 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 m the case only of a married woman {a). The gift was therefore equivalent to an absolute 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 ]Droperty (b). Again, where the gift to separate use with restraint was in favour of a married woman whose husband subsequently died, the same question arose as to the rights of the widow. It was held in this case also, upon similar principles, that upoii the coverture ceasing the restraint ceased also, and that the widow might alienate as she thought fit (c). (a) In a recent case the present Master of the Eolls said, " The law of ( ' ' this country says that all property shall be alienable, but there has been \ " one exception to that general law, for restraint on anticipation or alien- \ ' ' ation was allowed in the case of a married woman. That was purely an | ' ' equity doctrine, the iuvention of the Chancellors, and is, as I have said, j ' ' an exception to the general law, which says that property shall not be I " inalienable. That exception was justified on the ground that it was the " only way, or at least the best way, of giving property to a married " woman. It was considered that to give it her without such a restraint " would be practically to give it to her husband, and therefore, to prevent " this, a condition was allowed to be imposed restraining her from antici- ' ' pating her income, and thus fettering the free alienation of her property. " In re Ridley, 11 Ch. D. 640. (6) This was so decided by Lord Brougham, in Woodmeston v. Walker, 2 RasseU & Mylne, 197 ; and Browne v. Pocock, 2 Russell & Myliie, 210, overruling Sir John Leach's decisions to the contrary. (c) See Jones u. Salter, decided by Sir William Grant, some fifteen years before Lord Brougham's decision in Woodmeston v. Walker, but reported in the same volume, 2 Russell & Mylne, 208. Digitized by Microsoft® 170 LECTURE vn. But a third and still more important question re- mained, one which might at any time have arisen in 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 anticiiDa- tion, so expressed as to be applicable to any mar- riage 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 agaiu (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 fii-st 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 bj- the husband's death, the quality of separate jrpjjerty could not, upon a subsequent or second coverture, be revived. This was the effect of his judgment in the case of Massey v. Parker (a), which for some four years 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 remarriage, survived, so to (a) 2 MylDC & Keen, 174. Digitized by Microsoft® LECTURE VII. 171 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 fell with the sepa- rate use, to which it was a mere appendage), the Vice- ChanceUor of England held that though the separate xise did revive, the restraint on anticipation, when once at an end, could not do so. It was reserved for the great case of Tidlet y. Arm- ; extended by subsequent enactments (a), still forms the basis of our present system. Patent light is therefore a privilege derived from the original povrer of the Crown as restrained by statutory enactment. Copyright, so far as respects the origin of th& species of property called by that name, has long been the crux of lawyers, indeed one might say of the edvicated commimity at lai-ge. Much confusion has been caused by the word being used in two senses. It i includes, or has been used to include, first, though! somewhat inaccurately, t he x'igh t of the author_to[ pub lish or no t, and to restrain others from publishing ; I and, secondly, the right ^jfter publi cation of republish- ! ingand restraining others from doing so. The first species of copyright, that existing before publication,, according to the strong preponderance of authority, e xisted at common la w. Whether the second species. of copyright had any conunon law existence is the question about which the greatest lawyers have differed. In the great case of Donaldson v. Beckett (b), 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 pub- lication, was taken away by the statute of Anne, the first Copyright Act(c) — ^in fact, that the author's claim was, since that statute, only under the statute. (a) The 5 & 6 Wm. IV. .;. 83 ; 2 & 3 Vict. o. 67 ; 7 & 8 Vict. c. 69 j and 15 & 16 Vict. c. 83, are the principal Acts applicable to patents, (i) 4 Burrow, 2408. (c) 8 Anno, cap. 19. Digitized by Microsoft® 234 LECTUEE IX. In the recent case of Jeffereys v. Boosey (a), also before the House of Lords, the question was incidentally reopened. Of the ten judges who were called to the assistance of the House on that occasion, three (h) expressed themselves to be of opinion that no copy- right ever existed at common law, three (c), that it did exist, and four (d) declined expressing an opinion on the point. Of the three noble 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 infiinges a patent, or pii-ates a book. What then ? the only remedy was by an action, in which damages were recoverable ; j'et the wrong-doer might be a man of straw, and the verdict (a) 4 House of Lords Cases, 815. In reference to the actual decision in ■Jeffereys v. Boosey, in which the privileges conferred by the statute of Anne were held to be confined to British subjects and to foreigners resident in the United Kingdom, and to the more liberal construction probably applicable to the 5 & 6 Vict. cap. 45, see Koutledge v. Low, L. E. 1 Ch. App. 42 ; 3 H. L. 100. (6) Parke, B. ; Pollock, C.B. ; and Jervis, C.J.C.P. (c) Erie, J. ; Wightman, J. ; and Coleridge, J. (d) Crompton, J. ; Williams, J. ; Maule, J. ; and Alderson, 13. Digitized by Microsoft® LEOTUEE IX. 235 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 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 prmciples 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 acting upon legal rights, but for the pur- " pose of better enforcing legal rights, or preventing " mischief until they have been ascertained. 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 com-t is consequent upon the legal " right ; and it generally happens that the only ques- [a) 3 Mylne & Craig, 711, see p. 728. — The alterations in the practice oi the Court of Chancery, resulting from legislative enactment, will be found noticed at p. 240, 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. Digitized by Microsoft® 236 LECTUEE IX. " tion the court has to consider is, whether the case "is so clear and so free from objection upon the " grounds of equitable consideratio;!, that the court " oughtjtojjiterfere by injunction, -without ^pre^vious " trial at lav , or w hether it ought to wa it till 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." In a subsequent case (a), where the bill was one to restrain an alleged infringement of patent right, the same learned lord thus expressed himself : — " The jurisdiction of tliis 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 apphcation ' 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 apphcation is for an interlocutory injunction, ' several courses are open ; the com't may at once ' grant the injunction — sinvpliciter, without more — a ' course which, though perfectly competent to the ' coui-t, is not very likely to be taken where the de- ' fendant raises a question as to the vahdity of the ' plaintiff's title ; or it may follow the more usual, («) Bacon v. Jones, 4 Mj'lne k Craig, 433, see p. 436. Digitized by Microsoft® LECTURE IX. 237 " and, as I apprehend, more wholesome practice in\ " such a case, of either granting an injunction and at i " the same time directing the plaintiff to proceed to \ " establish liis legal title, or of requiring him first to j " 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. 2. Injunction with a direction that plaintiff proceed to establish his title at law (a). 3. Bill 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 court 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 (a) The equivalent under the modem practice, see note, p. 240, -would be the granting of an interlocutory injunction upon special terms as to hringing the action 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 action, upon the defendant 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. R. 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 trial of the aetior, the defendant undertaking to keep an account. Digitized by Microsoft® 238 LECTURE IX. think fit to make as to damages, in the event of the plaintiff failing to establish his right at law (a). As respects the third course, the allusion to the defendant keeping an account may demand a few words of explanation. Obviously, if the injunction be not granted, 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 wi'ongful 1 acts. It is with this \iew that the court, where the injunction is not granted, commonly requii-es 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 coiu't 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, Wliat course will, on the whole, be least likely to lead to wrong? Will the plaintiff be most likely to suffer wrong, if the injunction be i withheld, or the defendant, if the injunction be granted? and iu 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 i relevance (b). (a) Or now, in the event of the plaintiff failing to obtain a judgment at the trial of the action. (i) Newall V. Wilson, 2 De Gex, Macn. & Gor. 2S2. Digitized by Microsoft® LECTURi!: IX. 239 "Where the plaintiff's claim is in respect of a patent, two main questions are commonly raised, viz. : first, as to the validitj' of the plaintiff's patent; and, secondly, whether there has been an infringement. In reference to the first question, the length of enjoy- ment imder the patent has always considerable weight with the court upon the point of withholding or grant- ing the injunction. The practice of the court (with the gi'ounds 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 validity of the patentee's title, and " the court refuses to interfere until his right has " been established at law. But in a case where there " has been long enjoyment under the patent (the " enjoyment of course including use), the public have " had the opportunity of contesting the patent, and " the fact of their not having done so successfully " affords at least primd facie evidence that the title of " the patentee is good, and the court interferes before " the right is established at law " (a). Where the plaintiff seeks the protection of equity in respect of copyright, the granting or withholding the injunction seldom turns in any degree on the question of enjoyment. Occasionally a dry question of law arises respecting the plaintiff's title to copyright (6), (a) Caldwell v. Vauvliasengen, 9 Hare, 424. (J) e.g. Low ». Koutledge, 33 Law Journal Kep. (N.S.) Chanc. 717 ; on appeal, L. E. 1 Ch. App. 42 ; 4 H. L. 100. Digitized by Microsoft® •240 LECTURE IX. •but more frequently the material question is piracy or no piracy. In reference to the question of the practice of the ■court in granting or withholding injunctions, I would call j^our attention to a section in the Chancery Pro- cedure Act of 1852 (a), 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 Tvords : — " In cases where, according to the present practice " of the Court of Chancery, such court declines to " grant equitable relief until the legal title or right ■" of the party or parties seeking such relief shall have ■" been established in a proceeding at law, the said " com't may itself determme 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 I'aised between the parties are of a nature more 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 (b). (a) 15 & 16 Vict. cap. 86. (5) The permissive enaxitment atove referred to was subsequently made •compulsory in a more extended form, by the 25 & 26 Vict. c. 42, com- monly known as Rolt's Act ; which enacted that, whether the title to a relief or remedy were or were 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 depended, should be determined by the Court of Equity. The Act contained three exceptions to its general operation. The first Digitized by Microsoft® LECTURE IX. 241 Finalty, let me observe, in reference to both patent and copyright cases, that although the jurisdiction exercised by the court is in aid of the legal title, and although in by far the larger proportion of cases the plaintiff in equity comes 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 obviousty 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, b}' principles similar 1 to those wliich prevail where the plaintiff comes upon a purely legal title. reserving 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 was to recover or defend the possession of land, relief should be given only in accordance with rules and practice of the Court before the Act. (See Metropolitan Board of Works v. 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 had concurrent jurisdiction if it should appear that the matter had 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 was 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 determination by a jury (see Eaden r. Firth, 1 Hem- ming & Miller, 573), but the hesitation subsequently disappeared (see Inchbald r. Robinson, L. R. 4 Ch. App. 388, Roskell v. Whitworth, L. R. 5 Ch. App. 4-59), and the trial was commonly before the Court itself, and without a juiy. (a) Mawmau o. Tegg, 2 Russell, 385. u Digitized by Microsoft® 242 LECTUEE IX. 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 publish the work. He must make no other use of his copy than 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 Queenshury v. Sheh- learc (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 (a) 2 Eden, 329. Digitized by Microsoft® LECTURE IX. 243 tliat lie may read it, and not that he may i^rint and publish it. Accordingly, in tlie leading case of Pope v. dni (a). Lord Hardwicke restrained the defendant from pub- lishing any letters written by Pope, though refusing to restrain the publication of letters written to him. So in the more recent case of Thompson y. Stan- hope (b) the widow of Lord Chesterfield's son was, at the suit of Lord Chesterfield's executors, restrained (a) 2 Atkyns, 341. (6) Ambler, 737. See, also, Gee -o. Pritcliarcl, 2 Swanston, 402. The student may with advantage refer to and distinguish 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 be acted (see Reade r. Conquest, 9 Common Bench N.S. 755), though not to print the drama and publish it ; Tinsley r. 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 author's consent : Murray v. EUiston, 5 Bamewall & 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. It was held by Lord Hatherley (whenV.-C.) that if an author first publishes a play, and then turns the play into » novel 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 ; Reade v. Lacy, 1 Johnson & Hemming, 524. But where A. wi-ote and published a novel which he afterwards dramatized and assigned the drama to B., who never printed or published it, or repre- sented it on the stage, and C. , in ignorance of A. 's drama, also dramatized the novel and assigned the drama to D. , who put it on the stage, it was held by the Court of Queen's Bench that A. having published his novel, any one might dramatize it, and that although the two dramas were founded upon the novel written by A., the representation on the stage of the drama written by C. was not a representation of the drama written by A., and consequently that B. could not recover penalties from D. under the 3 & 4 Will. IV. cap. 15 ; Toole v. Young, L. R. 9 Q. B. 523. n 2 Digitized by Microsoft® 244 LECTURE IX. by Lord Apsley, 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 apjjlies equally to an oral com- munication which is presumably made for a quahfied purpose. Hence, in the case of the farce of " Love a la Mode," written by Macklin, it was held that the proprietors of a magazine had no right to employ a person to take down the words of the plaj' and publish it («). And similarly in more modern times, it was held, in the case of Mr. Abernethy's Lectures, that pupils attending lectures delivered orally, though entitled to take notes for then- own use, have no right to pubhsh the contents of those lectures (b). Finallj', whenever there has been any conduct_gar- taking of breach of confidence, the court will go even fiu'ther in protecting the rights of authorship before publication. Thus, in the celebrated case of her pre- sent Majesty's Etchings, where impressions had been obtained surreptitiously, the i)arties into whose hands the impressions had come were restrained, not only from exhibiting the impressions and publishing copies, but even from pubhshing a catalogue containing an enu- meration and descriptive account of those etchings (c). Li 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 (a) Macklin v. Eichardson, Ambler, 694. (b) Abernethy v. Hutchinson, 1 Hall & Twells, 28. (c) Prince Albert v. Strange, 1 Hall & Twells, 1. Digitized by Microsoft® LECTUEE IX. 245 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 injunction 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 ciu'sory notice of the authorities. 3. "We now pass to Trade Marks. Cases of bills filed by plaintiffs seeking to restrain the fraudulent imitation of ti'ade marks, with a view of passing off goods not the plaintiff's as his, are of fi-equent occun-ence. 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 i^roperty in a trade mark {a) ; the plaintiff ^^ i(u.VilW does not come complaining that the defendant has Ulif. ^'^ infringed any right of j)roperty. The nature of his ^''^^f- '^i case is that the defendant has imitated his marks, for ! the purpose of fraudulently passing off his own goods ! as the plaintiff's (6). The distinction is not without I importance, and it is especially well illustrated by the (a) This position cannot be maintained in its integrity since the judg- ments of Lord Westbury in the Leather Clotli Company (Limited) v. American Leather Cloth Company (Limited), 4 De Grex, Jones, & Smith, 137 (affirmed on appeal in D. P., H House of Lords Cases, 523), and Hall v. Barrows, Ibidem, 150. In some respects the controversy (as to which see further McAndrew v. Bassett, 33 Law Journal (N.S.) Chanc. 561, and Ainsworth f. Walmsley, L. E. 1 Eq. 518) may be regarded as verbal rather than substantial. (6) See the form of declaration at law, Crawshay v. Thornton, 4 Manning & Grainger, 357, and Welch v. Knott, 4 Kay & Johnson, 747. But Digitized by Microsoft® 246 LECTURE IX. judgment — not less instructive because humorous — of Lord Justice Knight Bruce, in the case of Bur£e§s Y. B urgess (a). In that case the plaintiff, Burgess, who was the father of the defendant, had for many years exclusively sold a particular 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 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, Vice-Chancellor Kindersley restrained the defendant from continuing over his shop the words " late of 107, Strand " (6), but refused to restrain him from selling sauces under the name of 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 : Millington v. Fox, 3 Mylne & Craig, 338 ; Burgess w. Hills, 26 Beayan, 244. The result seems to be that while at law the scienter may be essential to enable the plaintiff to recoTer, 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 trctde marks, The Collins 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, under the statute of Anne, no copyright in this country ; though there is authority for the view that a more liberal rule ought to prevail under the 5 & 6 Vict. c. 43 ; see Eoutledge v. Low, L. E. 3 H. L. 400. (a) 3 De Gex, Macn. & Gor. 896. (6) 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, Digitized by Microsoft® LECTUEE IX. 247 "Burgess's Essence of Anchovies." The plaintiff ap- pealed; and on deKvering judgment, Lord Justice Knight Bruce expressed himself as follows : — " All the Queen's subjects have a right, if they will,' " to manufactm-e and sell j)ickles and sauces, and not " the less that their fathers have done so before them. " All the Queen's subjects have a right to seU. these " ai'ticles 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 follows and has long followed, namely, " that of a manufacturer and seller of i^ickles, 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 anj'^ " circumstanceof 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 " been possessed by the elder Mr. Burgess'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 Digitized by Microsoft® 248 LECTUEE IX. 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 Nidsance." These are commonly subdivided mto public nuisance and •private nuisance. The distinction is material in reference to the form of remedy. In cases oi public nuisance, the remedy is at law bj indictment, a nd in equity by i nformation, at th e suit of th e Attornej'_;G;eneral. In those of private nuisance, at law b y action on th e case, and in equity hj bill. It is not always easy to determine whether certain particular acts are a public or merely a private nuisance. In the famoiis Clapham beU-ringing case (b), Vice- (a) Farina v. Silverlock, 6 De Gex, Macn. & Gor. 214. See as to th^ later practice, note (J), p. -237, ante. (i) Soltau V. De Held, 2 Simons (N.S.), 133. Digitized by Microsoft® LECTURE IX. 249 Chancellor Kindersle}- thought that, to constitute a public nuisance, the thing done must ^he^. a damage or , injujxiojill.£ersonsjvhoj!axtte_ -mihin tiie sphere^ .0^ operation, though of course it might be so in a greater degree to some than others, instancing noxious fumes from a factory, and stopping the king's highway. But the particular case before him, viz., of a peal of bells, which might be an intolerable nuisance to a person livmg 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 pubhc nuisance, maj' be also a , private nuisance to a particular individual, by inflicting I 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 (a). In regard to cases whether of public or of private nuisance, both the grounds for the interference of equitj^ 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 whoUy inadequate to answer the ends of justice; and accord- ingly the Court of Equity, while requiring the most (a) Soltau V. De Held, 2 Simons (N.S.), 145 — 151. And an action lay at law ; lyeson v. Moore, Holt's Eep. 16. Digitized by Microsoft® 250 LECTURE IX. clear proof of the legal right, or else carefully pro- viding 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 aiforded by the Datchet Bd dae 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 I end ill Bucks and at the other in Berks. Thereupon, the Berkshire magistrates, unwilling to allow such a 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 Bucks to restrain the proposed cutting of the joists ; and upon a demurrer being put in. Lord Cottenham, in an able judgment, upheld the jurisdiction of the court. (a) Attorney-General v. -Forbes, 2 Mylne & Craig, 123. Digitized by Microsoft® LECTURE IX. 251 Under the bead of "private nuisance" (or of its equivalent, "public nuisance," causing special damage to some particular individual) may be ranged a large variety of injuries ; 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 light, as by building so as to darken windows (a) ; interference with the free and healthy use of air, as by biu-ning bricks in the neighbourhood of some particular house (b) ; obstructions to free use of water, as by wrongfully diverting or fouling a stream (c) ; obstructions to rights of way, as by cutting a trench across the road (d) ; and disturbance of rest, as by ringing bells of heavy weight at unreasonable times, of which last kind was the case of the Eoman Catholic I chapel at Clapham, before referred to (e) : in aU which, t 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 (a) Herz v. Union Bank of London, 1 Jurist (N.S.), 127. See laenberg r.East India House Estate Company, 33 Law Journal (N.S.), Chano. 392 ; Johnson v. Wyatt, Ibidem, 394. (6) Walter v. Selfe, 4 De Gex& Smale, 315 ; Pollock r;. Lester, 11 Hare, 266. See, too, Beardmore tf. TreadweU, 3 Giffard, 683 ; Crump v. Lamtert, L. K. 3 Eq. 409. (c) Wood V. Sutcliffe, 2 Simons (N.S.), 165. {d) Spencer v. London and Birmingham Railway Company, 8 Simons, 193. (c) Soltau V. De Held, 2 Simons (N.S.), 133; and see Walker v. Brewster, L. E. 5 Eq. 25 ; Inchbald v. Kobinson, L. R. 4 Ch. App. 388 ; Koskell V. Whitworth, L. R. 5 Ch. App. 459. Digitized by Microsoft® 252 LECTURE IX. large and interesting subject, of whicli only a very small portion falls withia 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 (a). At com- mon law also a writ of Estrepement (b) lay after judg- ment, and before execution, to stay waste ; and by the Statute of Gloucester (c), 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 still lies) none other remedy than that of a punishing or com- i pensating justice. ' But equitj', in all cases where an " action of waste " would lie, 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 mattei's of waste is exercised in aid only of the legal right. On the contraiy, 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, (a) 13 Edv/ard I. stat. 2, cap. 14. (i) A word signifying extirpation, (c) 6 Edward I. cap. 13. Digitized by Microsoft® LECTURE IX. 253 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 tena nt for life jvitho tit i mpeachment of tvaste, by restraining him from com- mitting wilful destruction, as from puUing down man- sion-houses (b), or from felling timber planted and left standing for ornament (c). But these special inter- positions of equity, however interesting a branch of stud}', form no pari of the auxiliary jurisdiction of the court (d). Having nowpointed out the most important instances of the auxiliary interposition of equity bj'' injunction, it is fitting that I should call your attention to tlie power recently conferred on the common law courts of grant- ing injunctions. The Common Law Procedure Act of 1854 (e) in \ substance empowers a plaintiff, at any time after action brought, and either before or after judgment, to (a) Egerton, 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). (i) Vane v. Lord Barnard, 2 Vernon, 738. (c) Marquis of Downshire v. Lady Sandys, 6 Vesey, 107. See also, Micklethwait v. Micklethwait, 1 De Grex & 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." (e) 17 & IS Vict. 125, s. 82. Digitized by Microsoft® 254 LECTURE IX. apply ex parte to the common law courts, or a judge, for a writ of injunction, which writ may be gfranted or denied on such terms as to duration of the writ, keep- ing an account, giving security, or otherwise, as to such court or judge shall seem reasonable or just; j 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 j'et few in number (a). The path, however, of the common law judges would seem to be tolerably easy. The new jurisdiction is a 1 simple substitute for the auxiliary jurisdiction of the ' Equity Court, and if exercised liberally, yet 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 62nd section of the Equity Procedure Act of 1852 (5), before 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 desu'able, an action at law in the first instance, and an apj)Kca- (a) See Jessel u. Chaplin, 2 Jurist (IT.S.), 931 ; Baylis v. Legros, 2 Common Bench Reports (N.S.), 316 ; Sutton v. South-Eastern Railway Company, L. R. 1 Exchequer, 32. «) 15 & 16 Vict. cap. 86. Digitized by Microsoft® LECTURE IX. 255 tion for an iDJunction to tlie 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 courts powers formerly possessed only by 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 of discovery and production of documents, mentioned and explained in my sixth lecture. They have been invested with the power of granting injunctions just mentioned. Theii- powers of proceeding by mandamus have been enlarged (6), though not so as to enable them to decree a specific performance under the name of mandamus (c). Something of the nature of a bill for the delivery up of specific chattels has been im- (a) Subsequent experience showed only a very sparing resort to tlie new jurisdiction ty Injunction at Common Law. This may have been partly attributable to the circumstance that the Common Law Courts could not .interfere upon a mere apprehension of wrong. There must have been an existing cause of action to found the jurisdiction. But the superiority of the Cliancery 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. Since the Judicature Act, 1873, came into operation, the injunction business of the High Court of Justice has still gi-avitated towards the Chancery Division of the Court in preference to the Common Law Divi- sions. The Act (see section 25, sub-section 8) and the rules of 1875 in | pursuance thereof (see Order Hi.), leave the 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 might j have been expected that the resort would be to the Chancery Division. (6) 17 & 18 Vict. cap. 125, a. 68. (c) Benson v. Paull, 2 Jurist (N.S.), 425. Digitized by Microsoft® 256 LECTURE IX. 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 (a), though the ef&cacy of this clause is somewhat impaired by the absence of any provision other than ^stress for enforcing the return of the article (h). 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 wayof plea (c), so that our 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 (d) ; though the common law judges have decided to allow i^leas of this kind only where the equity set up is a simple unqualified answer to the action (e). Finalty, where an action is now brought upon a bill of exchange or other negotiable instrument, the common law court is invested with the old head of equity juris- diction, wliich consisted in ordering the loss of the (a) 17 & 18 Vict. cap. 125, s. 78. (i) In equity there would have been simply a decree for return ; and in default of obedience the defendant -would be committed. For the present practice under the Kules of the Supreme Court, see note (a), page 90, supra. (c) 17 & 18 Vict. cap. 125, ss. 83 to 86, whicli provisions, however, did not apply to an action of ejectment ; Neave v. Avery, 16 Common Bench Reports, 328. {d) Note for Student. — The Court of Chancery used formerly to sit at Westminster. (e) Wodehouse v, Farebrother, 5 Ellis & Blackburn, 277 ; Best v. Hill, L. R. 8 C. B. 10. Digitized by Microsoft® LECTURE IX. 257 instrument not to be set up upon a proper indemnity being given (a). The bare enumeration of these additional poAvers 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 (b). 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 (c), should have viewed the legislator as the best expounder of his own laws, need not surprise us. It was, at least, consistent when it is said, " Vel quis legum tenigmata solvere et " omnibus aperire idoneus esse videbitur nisi is cui " soli legislatorem esse concessum est ?" [d). But that our countrymen of our own age, members of a free {a) 17 & 18 Vict. cap. 125, s. 87. (5) The Judicature Act, 1873, may be regarded as the first and most difficult step, the most difficult because involving the greatest sacri6ce of natural feeling and of old-established and cherished privileges, towards the accomplishment of fusion. But much still remains to be done. (c) Quod principi placuit legis habet vigorem ; Inst. I. tit, i. 1. 6. (d) Codex, Lib. I. tit. xiv. 1. 12. s Digitized by Microsoft® 258 LECTURE IX. community, with whom the severance of the legislative from the judicial functions 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 laiv, 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 loork the law — and hard enough the work often is — not to make the law. We cannot, however, with proprietj' 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. Digitized by Microsoft® SUPPLEMENTARY LECTUEES.(«) Election. A FIRST general ■ notion of the doctrine of Election will, I think, 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 j'ounger, and dies. The eldest son claims | Blackacre, as devisee, and Whiteacre (which hisjfather ha d no legal pow er to devise) as heir in tail. There- upon a Court of Equity says. No, you shall make your i " election " to claim either under or against 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 ujp your paramount title as issue in tail. This illustration is, in fact, that afforded by an Anonymous Case in Gilbert's Equity Eeports, page 15, often referred to, and which, as it is very short, I will proceed to read. {a) The following four lectures fonaed part of a seconil course delivereil in the years 1858-1859. s 2 Digitized by Microsoft® 260 SUPPLEMENTARY LECTURES. " The case was this :— A. was seised of two acres, " one in fee, t'other in tail ; and having two sons, he, " by his will, 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 simi^le instance just put, the doctrine and the application of it would probably meet with the approbation of a very large proportion of educated men, whether lawj^ers 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 wliich 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 propert}' 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 Digitized by Microsoft® ELECTION. 261 county and in no way connected with the family estate. 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 imder the wiU and claim his own property against it. Yet it is impossible not to feel that the Court may by the apphcation 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 re- markable 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 wher e! iion£_ is expres sed. In the case first supposed, to' repeat the words of Lord Chancellor Cowper, "the Digitized by Microsoft® 262 SUPPLEMENTAEY LECTUEES. " devise of the fee acre to the eldest son is under- " stood to be with a tacit condition that he shall suffer " the younger son to enjoy quietly." In the secondly I supposed case, the Court assumes that the life estate I in the whole property settled is conferred conditionally ■■ only on the son allowing his own small outlying pro- i perty to be brought i nto sett lement. But is this a justifiable implication ? The testator has imposed no condition in terms. Is a Court of Equity warranted in importing a condition into his will ? The answer to this question involves the in- quiry, What was presumably the te stator's intentio n ? 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 knewjthatJhejDroperty which he assumed to deal withjwa^ not Jiis own, and yet he advisedly assumed to give it ; or, (/3) He^o gave it erroneously s.upposing it to be his own (a). 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 will say at once that, in our system of equity juris- prudence, the doctrine of election applies 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, (a) Whether the erroneous belief was due to want of sufficient infor- mation or to momentary forgetfulness, seems immaterial. Digitized by Microsoft® ELECTION. 263 and it can hardly be doubted that he relies on the benefits which he by his will confers on A. as the in- ducement to A.'s consenting to ratify his will. Certainly it may be said : " The testator Imew 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 compUance. 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. ;8. — 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). Recollect my secondly supposed illustration, viz. that of a testator including in a general devise in strict settlement a small outlying estate of which he was only tenant for life, and his son tenant in remainder in fee. Assume further, that as regards various other small properties, similarly settled^ the testator has abstained from affecting t o devise the m, 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 {a) In Cooper D. Cooper, L. E. 6 Ch. App. 15, V.-C. Stuart appears to have considered (see Ms judgment at note 2, page 16 of the Eeport) 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. Digitized by Microsoft® 264 SUPPLEMENTABY LECTUEES. own estate into settlement, is not to carry out, but to 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 v. Webster (a). He there says : " The question is very ' short ; whether the doctrine laid down in Noys v. ' Mordaunt and Streatfield v. Streatfield, has esta- ' blished 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 con- ' tained in it, whereby any disposition is made show- ' ing an intention, 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 speculate 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 wiU ' 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, upo n intenti on. 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- (a) 2 Vesey, jun., 370. (6) 1 Swanston, 401. Digitized by Microsoft® ELECTION. 265 " sumed, of the author of the instrument to which it " is applied." In furtherance of the presumed inten- tion you 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 reall y believes hims elf to be only dealing_withwhat is his ow n. 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 whoUy inde- pendent of it ; that the Court presumes an intenti on, , on the part of the author of everj^ 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 efi'ect the probable intention. A few words comparing the rules of the civil law, Digitized by Microsoft® 266 SUPPLEMENTARY LECTURES. 1 from which our own doctrine of election was un- ; doubtedly derived in the first instance, with those of I our own jurisprudence, may not be 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 inheritance. 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 procuring for any legatee, or giving to him 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 Tuscu- > lum. 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- I 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 Sempromus; and not if he had made the bequest supposing it erroneously to be hisown. In the Second Book of the Institutes, titlexx., s. 4, after explaining the general doctrine of election, to the effect just mentioned, the 5th section continues thus : " Quod autem diximus alie- I " nam rem posse legari, ita intelligendum est, si j " defunctus sciebat alienam esse, non si ignorabat. " Forsitan enim si scivisset alienam rem esse, non " legasset." Digitized by Microsoft® ELECTION. 267 You will thus observe that the civil law, from which there can be little doubt our own doctrines were derived, 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 sj^stem, 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 Uttle more closely the nature of the condition inferred. I have hitherto referred to it as a tocit_co_ndition annexed i " that the person owniug 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, o?' e^s£jiave_jJi_efiuivaknLout of the " fee a cre." 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 i the electing party was bequeathed, in respect of the \ [a) The French code, rejecting altogether the doctrine of election, provides, Cod. Civ. § 1021, as follows : — " Lorsque le testateur aura legud la chose d'autrui, le legs sera nul, soit que le testateur ait connu, ou nou, qu'elle ne lui appartenait pas." — Digitized by Microsoft® 268 SUPPLEMENTARY LECTURES. loss which he has sustained by the withdrawal of that property from the operation of the will. This, you will observe, is a still higher stretch of authority than that hitherto supposed to be exercised. The tacit condition inferred is not merely "you " sha ll confirm or forfei t," for if this were so, then, upon failing to confirm, the forfeited property would have sunk into the bulk of the testator's estate for the I benefit of the heir or residuary legatee ; but is, " You I " shall confirm, or, Qut of^the property given to you " bythe testator, make a c ompensa tion_to. the-person ] " whom you disappoint " (a). i The doctrines of the Court on this point, together with the extreme difficulty of reconcilingj 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 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 1 " 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 miiform doctrine, " bestowing^ rt_on the other. A doctrine not confined " to instances in which the heir is put to election, and (a) Upon the question wliether "compensation" forms part of the Sootcli doctrine of "Approbate and Reprobate, " see Bell's Commentaries,' 6th edition (by Shaw), page 68. (i) 1 Swanston, 423. Digitized by Microsoft® ELECTION. 269 " which may be said to bring him within the operation " of the general principle, but prevailing as an uni- " versal rule of equity, by which the Court interferes " to supply the defect ai'ising from the circumstance " of a double devise, and the election of the party to ' renounce the estate eifectually devised ; and instead " of permitting that estate to falLinto the channel of " descent, or to devolve in any other way, lays hold of 1 " it, to use the expression of the authorities, for the " pui"pose of making satisfaction to the disappointed " devisee : a very singular office ; for in ordinary cases, " where a legatee or devisee is disappointed, the Court " 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 se quester the_devised " ' e state, quousque till sa t isfaction is _made_ to the dis- " ' appointed devisee.' I conceive it to be the universal " doctrine that the Court possesses power to sequester " the estate till 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- Digitized by Microsoft® 270 SUPPLEMENTAKY LECTUEES. " ciple, established more than a century, merely on " the ground of difficulty in reducing it to practice, " 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 wUl 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 parties be forfeitji^ g.^ or ^c^mgen- 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 exjiressed it, so much as is requi- site to indemnify the disappointed devisee. At first blush it might seem unaccountable 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 property bequeatlied to him be more valuable than his own, he elects to take under the will ; if less valuable, it matters little whether the principle be forfeiture or compensation, since the whole subject-matter is insufficient to ansVer Digitized by Microsoft® ELECTION. 271 the claim of the disappointed legatee. It is, however, easy to suppose a case calling for a decision, and perhaps it is strange no such case should hitherto have arisen. Thus a testator bequeaths a sum of £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 wiU ? Upon this point I must, for lack of time, content myself by Teferring you to Mr. Swan- ston's note to the case of Gretton v. Ilaward {a), and to the more recent authorities referred to in Jarmanf on WiUs (J). You will, I think, be perfectly safe ini assuming that compensation, and not forfeiture, is the | i-ule. 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 I the question whether the doctrine o f election be a 1 p urely equitable doctrin e, or, as Lord Mansfield on i one occasion (and indeed even Lord Eedesdale on another (d) ) contended, a doctrine of law as well as of (a) 1 Swanston, 433, note (a). (b) Vol. I., p. 373 (2ncledit.) ;pp. 417, 418 (3rd edit.). And see Rogers V. Jones, 3 Ch. D. 688 ; Pickersgill i: Rodger, 5 Cli. D. 163, at p. 173. (c) 1 Swanston, p, 425. (d) Birmingham v, Ivirwan, 2 Scboales & Lefroy, 444 (see p. 450.) Digitized by Microsoft® 272 SUPPLEMENTARY LECTURES. equity. It would be vain to attempt to paraphrase the beautifully cogent argument of Mr, Swanston in 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 already 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 land. 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 settled (but without effectually barring the estate tail), as to part to the use of Edward Green for life, remainder to the plaintiff for life, 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 (a) 2 Merivale, 86. See, also, Brown v. Brown, L. E. 2 Eq. 481, and cases there cited. Digitized by Microsoft® ii ELECTION. 273 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 to which he was entitled as tenant in tail in possession under the settlement, and treating the settlement as ineffectual 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 settlement, 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 iDroportion 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 " wiUs " my observations apply to all 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. Digitized by Microsoft® 274 SUPPLEMENTARY LECTUEES. (II.) — I now pass to the second division of mj' task, viz., the mention of some of the more remarkable^ classes of decisions establishing that under certain circmnstances the doctrine of election does or does not applj% In reference to questions of this kind the leading I rule is, that you must find on the face of the wilLa i clear intention on the part of the testator to dispose of i the propertj"- which is not his^own. In this sense, the iuEeixtion7 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 groundwork 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 considei'ation 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 I 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 Duminer v. Pitcher (a) and Sliuttleivorth v. Greaves (b). In the first the testator's will ran thus : "I bequeath (a) 2 Mylne & Keen, 262. (6) i Mylne & Craig, 35, Digitized by Microsoft® ELECTION. 275 " 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 wiU , hut there was funded property standing 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 unders'tood 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 in 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 wiU, 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 wife. To the same general rule may be referred the class of cases establishing that where a testator is entitled to Digitized by Microsoft® ^ ^ 276 BUPPLEMENTAKY LECTUHES. 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. So, again, where a testator devises land out of which his widow is dowable, and dies, having bequeathed to her benefits by his wiU, the rule is clearly settled that the widow is not bound to elect unless you can discover on the face of the wiU an intention 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 inconsistency 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 weU dispose of the testator's interest in the property subject only to the widow's right of dower. On the other hand, a gene ral power of leasing or of management aifecting 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 will 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 Digitized by Microsoft® i . ELECTION". 277 most recent cases (a) no fewer than thirty-three cases were cited. Again, the same general pervading principle, that to raise a case oif election the intention of the testator to dispose of what is not his own must be perfectly clear, may be traced in the class of cases deciding that where the testator has a partia l interest in p roperty, as, for instance, a remainder in fee (J), and he disposes of i 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. I Of course, however, the whole tenour 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 persbn 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 (c). Let me now direct your attention to a cluster of classes of cases all differing in one main particular from the cases of election hitherto discussed. (n) Parker v. Sowerby, i De Gex, Macn. & Gor. 321. For a more recent decision on the question, see Thompson v. Burra, L. E. 16 Eq. 592. (b) See Rancliffe 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 beneiit under the will ; Padbury v. Clarke, 2 Macn. & Gor. 298 ; Fitzsimons v. Fitzsimons, 28 Beavan, il7. (c) 21 Beavan, 447 ; affirmed on appeal, 8 De Gex, Macn. & Gor. 641 ; and see also Ustioke v. Peters, 4 Kay & Johnson, 437. Digitized by Microsoft® a/0 SUPPLEMENTAKY UiCTUKEH. 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 haying attempted to dispose of some por- tion of his own 'property by aa instrumept iaeff ectual for that purpose. Many of these questions are becoming daily of rarer occurrence owing to recent alterations in 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 will 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 (a) 1 Vict. 0. 26. Digitized by Microsoft® ELECTION. 279 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 (a). It was therefore argued that, in a case where a testator merely bequeathed lOOOZ. to his heir A, without, as in the case last supposed, annexing any express condition, and Whiteacre to B, the whole will might well be read for the purpose of annexing to the gift of lOOOZ. a tacit condition, similar to the express one which would have been ofj 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 will, but it is dif&cult 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 (b), makes the following observations on the subject : — " The next consideration is, whether, if real estate, " this is not a case of election against the heu\ 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 (n) See Boughton v. Bougliton, 2 Vesey senior, 12, a less favourable ease for Election, as the decision merely rested on a general clause that any one disputing the will should forfeit all claim. (6) Sheddon v. Goodrich, 8 Vesey, 481 ; see page 496. Digitized by Microsoft® 280 SUPPLEMENTARY LECTURES. " own note of Carey v. Askeic, 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 " being expressed in the body of the will, it was " a case of election; as he could not take the legacy " without complj'ing 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 beiag 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 princii^le under which the heir of freehold property was exempted from obligation to elect. I mean those respecting copyholds. You may remember that, previously to the Act 65 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 oftiieowner^will. Hence, where a testator professed Digitized by Microsoft® ELECTION. 281 to devise unsurrendered copyhold propert}', which therefore for want of a surrender descended to the heii", 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 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 I according to Scotch law, and by the same will gives I benefits to the Scotch heir. In this case is the latter i bound to elect ? This was the point for decision in \ the case of Brodie v. Barry (&), 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 will 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 (a) See Highway v. Banner, 1 Brown's C. C, 584 ; Eumbold v. Kumbold, 3 Vesey, 65. (b) 2 Vesey & Beanies, 127. Digitized by Microsoft® 282 SUPPLEMENTARY LECTURES. decisions upon the cases in reference to freeholds and copyholds just' adverted to, that I cannot forbear read- ing them : — " If it were now necessa'ry 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 " taken place on this subject. I do not understand, " why a will, though not executed so as to pass real " estate sh ould not b e read for the purp ose o f discover- " uigmitan ^3]2£li^'3-S— ^i^^^— "^''^'^"^'"^& rgsl-figli^^'^j " annexed to ^a^ gift ^f persojmL.,.Brftpgjty ; 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, however executed, being as inoperative for " the conveyance of copyhold estate, as a will defec- " tively executed is for the conveyance of freehold " estate." Further on in his judgment. Sir W. Grant, after discussing 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 Digitized by Microsoft® ELECTION. 283 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 propertj^, I may observe, that you will find amongst them cases affording an additional instance of the apphcation of the general canon already noticed — viz., that the intention to dispose 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 puqDose find in the will an express reference either to copyhold or to Scotch property, as the case may be (&). The best cases which you can consult as showing the inefficacy of a general devise for the purpose of raising a case of election are, as to copyholds, Judd v. Pratt (c) ; and as to Scotch property, Maxwell v. Maxwell (d). The principle of the decisions is perhaps best ex- (a) And in the case of a will insufficiently executed to pass estates in the island of St. Kitt's, it was hold by V.-C. Stuart that the colonial heir must be regarded as standing in the same jjosition as (not an heir of an English freehold but) an heir of imsurrendered copyholds or of Scotch estates ; Dewar v. Maitland, L. R. 2 Eq. 834. (6) Thus, in Brodie v. Barry, 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.'' (c) 13 Vesey, 168 ; 15 Vesey, 390. (rf) 16 Beavan, 106 ; 2 De Gex, Macn. & Gor. 705 Digitized by Microsoft® 284 SUPPLEMEXTAET LECTURES. pressed in the following words of Sir John Leach in the case of Johnson v. Telford (a), in which case, as in Maxwell v. Maxwell, there was no express reference to Scotch property. Su' 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, " 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 onlygcrierwl_words it is to he intended " he means those general icords to be applied to such " property as will in its nature pass by his tuill." The same doctrine is more elaborately expounded by Knight Bruce, L. J., in giving judgment in the appeal in Maxwell v. Maxwell (&), in which case the devise was by a will, inoperative as to Scotch heritable property, of all the testator's " real and personal " estate whatsover and tvheresoever" (c). His Lord- ship there expresses himself as follows : — " It is said on the part of the other children, and " denied on liis part, that he must either give up the (a) 1 Russell & Mylne, 248. (fi) 2 De Gex, Macn. & Gor. 705 ; see p. 713. (c) 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 & Mellish), 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. Digitized by Microsoft® ELECTION. 285 ' Scotch property for the purposes of the will, or take ' nothing under the will; the claim of the younger ' cliildren being founded on the generahty, the uni- ' versajitj"-, 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 ' all his real and personal estate whatsoever and where- ' soever. I apprehend, however, that according to the ' principles or rules of construction which the EngUsh ' law applies, — if not to all instruments, at least to ' testamentary instruments liable to interpretation, as ' the will in question is, — according" to its principles ' and rules, thegenerality, the mere universality, of • a gift of property, is not sufficient to demonstrate or ' create a "roimd of inference that the giver meant it ' to extend to property iiicapable, though his own, of ' being given by the particular act. If he has speci- ■ fically 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 doctrme of election is called into operation by mere general words. I mean where a testator, professing to do what the then state of the 1 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. ririIus"caieTiie heir, if he took any benefit Digitized by Microsoft® 286 SUPPLEMENTARY LECTUEES. 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 (&). Of course you will bear in mind that now, under Lord Langdale's Act (c), a will is to be construed, with reference to the property therein comprised, to s£eak_and take effect as if execut ed at the date, of the testator's death, and there can therefore no longer be any room for the operation of this species 1 of election, except as to wills executed previously to that Act. (III.) — My time permits but a few short observa- tions 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. Ilaward (fZ). As to married women. — You will perceive on read- ing the note referred to, that a somewhat fluctuating (a) 1 Kay, 571. (J) 18 Jurist, 987 ; 24 Law Journal Eep. (N.S.) Chanc. 513. And see Hance r. Truwliitt, 2 Johnson & Hemming, 216, (c) 1 Vict. cap. 26, sect. 24. (rf) See 1 Swanston, p. 413. Digitized by Microsoft® ELECTION. 287 practice has prcA'ailecl in cases where married Avomen 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 t. Bar row (a), lays down in the strongest terms that a married woman is com- petent to elect. The Vit'e- Chancellor thus expresses himself: — " A married woman can elect so as to affect her in- 1 " terest in real property without a deed acknowledged 1 " 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 bind her real estate ; but Ardesoife " V. Bennet shows the contrary ; and that case was " followed by others referi'ed 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 will be enforced against the heir." It may, I think, therefore be assumed that primd facie a married woman is com-petent to elect (&), and (a) i Kay & Johnson, 409 ; see page 419. (&) In Cooper v. Cooper, L. E. 7 H. L. 53, the Lord Chancellor (see Digitized by Microsoft® 288 SUPPLERLENTARY LECTDEES. that when she is willing to elect for herself the Court will allow her to do so, unless indeed her husband has an interest in the question and differs in opinion from the wife, in which case considerable difficulty exists (a). In one particular instance, however, it is distinctly established that a married woman cannot elect, viz., where after marriage a fo rtune is_ settled upon her in lieu of dower (b). But this rests upon the particular words of the 9th section of the Statute of Uses (c) which expressly enacts that a jointure made to the wife afte7' marriage may be refused by her after the death of her husband. As regards Infants, the case seems to stand some- page 67) speaks of one of the appellants as being a married ■woman "who "cannot make an election for herself," and held that there ought to be an inquiry whether it would be for the benefit of her and her children to take under the provisions of a certain will and codicils or against the same, but the case could not safely be treated as establishing more than the propriety of the inquiry in the particular instance. (a) See Wall o. Wall, 15 Simons, 513, 521. In Griggs v. Gibson, L. B. 1 Eq. 685, where an annuity was given by will to a married woman on the express condition of her relinquishing a 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 to take the annuity and to relinquish what she could relinquish, on the terms of compensation being made out of her annuity in respect of the unrelinquished life estate. (J) See Frank v. Frank, 3 Mylne & Craig, 171. And there can be no election by a married woman, oven with the sanction of the Court, to give up ijroperty to which a restraint on anticipation is annexed ; Kobinsou v. Wheelwi-ight, 21 Beavan, 214 ; 6 De Qex, Macn. c& Gor, 535 ; and see Stanley v. Stanley, 7 Ch. D. 589, (e) 27 Hen, YIII. c. 10. Digitized by Microsoft® ELECTION. 289 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 (a), 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 i nfant should be of a ge. This was done in the leading case of Streatfiekl v. Streatfield (6). 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. It is hardly necessary for me to say that, though now concluding, I leave still a considerable number of important questions connected with this doctrine wholly untouched : amongst others, the right of the party before making election to be fully in possession of thejactajifigessary to'ehaEIehim to form an accurate estimation of his position (c) ; the question, wha t acts v vill be he ld to amount to a n ele ction (d) ; the applica- tion of the doctrine to the cases arising under the execution of powers (e) ; and the question whether evidence dehors the will may be resorted to for the (a) 6 Brown's Parliamentaiy Cases, 89. (4) Cases tempore Talbot, p. 176. (c) See Dillon v. Parker, 1 Swanston, 359. Douglas v. Douglas, L. E. 12 Bq. 617, at pages 637—8. (d) See Worthington v. Wiginton, 20 Beavan, 67. (e) Sugden on Powers, chap, 11, sect, v, (8tli edit.) ; and Cttirchill v. ChurcUU, L. K. 5 Eq. 44. U Digitized by Microsoft® 290 SUPPLEMKNTAEY LECTUEES. purpose of raising a case of election (a). You must endeavour not merely to fiU in the outlines which I have traced, hut to make the requisite additions to the foregoiag imperfect sketch. (a) Sugden on Powers, p. 587 (8th edit.) ; Wigram on Wills, 39. Digitized by Microsoft® Satisfaction and Performance. The doctrine of satisfaction may be said to arise generally under one of the two following states of cii'cumstances : — 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 filial 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 i commonly on the marriage of that child — makes a ' pecuniary provision for it ; or, 03.) 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 Court u 2 Digitized by Microsoft® 292 SUPrLEMENTAEY LECTURES. 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 co nferred by thg^ first, whether wJiror'"set5ement. 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 i both instruments. I shall say but very few words with reference to the question how far this doctrine, now firmly established, can be regarded as resting on sound principle. The difficulties respecting it lie pretty much on the sui'face. Where the father fii-st gives a benefit by will, 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 relied 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. o) See pages 311, 312, infra, and note (a), p 311. Digitized by Microsoft® SATISFACTION. 293 Passing by tlie question of principle with these short remarks, I proceed now to consider more particularly^ the first class of cases in which the doctrine of satis- faction is called into play, — viz., that of double pro- visions 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. (/3.) 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 provisions 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 under 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 (a) Ex parte Pye, 18 Vesey, 150. Digitized by Microsoft® 294 SUPPLEMENTARY LECTUEES. " case, and looked into some other cases, one in " Ambler, and some earlier, I may state as the un- " questionable doctrine of the Court, that where a " parent gives a legacy to a child, not stating the " purpose with reference 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 coui'se. Lord Eldon's words, "in the " application of which legitimate children have been " very harshly treated." This refers to the fact that an illegitimate child is in the eye of the law a stranger, and that unless other circumstances are found than the bare relation of parentage " by nature," the illegitimate child is at liberty to claim a double provision. Lord Eldon, in 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 natural " child, the doctrine of this Coui't, 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 Digitized by Microsoft® SATISFACTION. 295 " the legal relation, and afterwards an advancement " is made on marriage, that is prima facie an ademp- " tion of the whole, or pro tanto ; but if the legacy is " given to a person standing in the relation of a natural " child to the testator, and he afterwards gave that " child a sum of money on marriage, the law does not " admit the conclusion primd 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 cii'cumstance, 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 beneficiary 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 Digitized by Microsoft® 296 SUPPLEMENTAEY LECTURES. reference to this point that the mode in which the testator had, in the case before Lord Eldon, described his own illegitimate child, became material, as showing that he had not assumed the parental character. But the point demands a closer examination. What is putting one'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 ? For answers to these questions, I will carry you to the case of Poivys v. Mansfield (a), admittedly the leading 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 10,000L to one of his nieces, and had afterwards settled 10,000Z. upon her marriage, stood " in loco parentis " to the niece, so as to give rise to the application of the doctrine of satisfaction. The niece was one of the daughters of Sir John's brother, Fitzwilliam, and the general rela- tions subsisting between the uncles and nieces are thus stated in the report of the case upon the hearing before the Vice-Chancellor of England (b). " The witnesses deposed, as to the first poiat, as " follows : — That Sir Fitzvdlliam, in compliance with " the wishes of Sir John, resided near Sii- John in the " Isle of Wight, and maintained a more expensive (a) 3 Mylne & Craig, 359. (l) 6 Simons, 544. Digitized by Microsoft® SATISFACTION. 297 " 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 " each other ; that, for several years, Sir John gave " Sir Fitzwilliam 1,000?. 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 clothing 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 " plaintiff's marriage the terms of the settlement were " negotiated between the plaintiff and Sir John, and " their respective solicitors, without any interference " on the part of Sir Fitzwilliam ; that Sir John, who " gave the iastructions for the settlement on the 20th " of April, 1817, proposed that the 10,000i. 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 Digitized by Microsoft® 298 SUPPLEMENTAEY LECTUEES. 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 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. Lord Eldon, 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 all that is " necessaiy 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 child ; but this definition must, " I conceive, be considered as apphcable to those " parental offices and duties to which the subject iu " 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 havmg 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 Digitized by Microsoft® SATISFACTION. 299 situation of the friend and of the father may make this unnecessary, and the other benefits most essential. " Sir William Grant's definition is, ' A person as- ' 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 lociLS 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, namelj', to provide for his child according to his means. So, one who has assumed that part of the of&ce 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, the same inference and Digitized by Microsoft® 800 SUPPLEMENTARY LECTUEES. " presumption must follow. The having so acted " towards a child as to raise a moral obligation to " provide for it, affords a strong inference in favour of " the fact of the assumption of the character ; and the " 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 future provision (a). 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 amomit, 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 " (b). The case of Lord Durham v. Wharton (c) affords a (a) See Campbell v. Campbell, L. R. 1 Eq. 383. (J) As to this, see Holmes v. Holmes, 1 Brown's Chancery Cases, 553, where a legacy of 800Z. to a son was held not satisfied by a subsequent gift of a moiety of stock-in-trade of the valae of 1500Z. ; and Dawsou v, Dawson, L. E. 4 Eq. 504, where a share of residue was held partially adeemed by an annual aUowtince. See, also, Kavenscroft v. Jones, 32 Beavan, 669 Watson V. Watson, 33 Beavan, 574. (c) 5 Simons, 297 ; 3 Mylne & Keen, 472 ; 3 Clarke & Finnelly, 146 Digitized by Microsoft® SATISFACTION. 301 good illustration of tlie proposition above laid down, that diflference in the limitations will not prevent the operation of the doctrine. There a father, by will, bequeathed 10,000L to trustees, one half to be paid at the end of three years, and the other half at the end of six yeai's 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 by his settlement, pin-money and a jointm-e for his wife, and portions for the younger children of the marriage : and it was held, that the 10,000i. was satisfied by the sum advanced by the father. Observe how strong this decision was. By the wiU 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 marriage of the benefits given them by the wiU, upon the mere legal presumption. The principle must, I suppose, be taken to 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- Digitized by Microsoft® 302 SUPPLEMENTARY LECTURES. 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 events is, first, a settlement; secondly, a wiU. This 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 tivo 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 will appoint. And it was held, that the moiety of the residue given by the wUl 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 (a) 2 House of Lords Cases, 131. (i) As to what differences will or wUI not be considered sufficient to prevent the presumption of satisfaction, see Russell v. St. Aubyn, 2 Ch. D. 398 ; Tussaud's Estate, 9 Ch, D. 363, Digitized by Microsoft® ii SATISFACTION. 803 any she should have, to talie under the will, she was held bound to elect so to take. I must observe, 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 (a). "Where the 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 (b). In the case now open before me, this part of the question was relieved from difficulty, be- cause the residue under the will 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 (c). (a) See the observations on this point in the recent case of Chichester v, CoTentry, L. R. 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. (6) See the observations of Lord Eomilly on this point, Chichester v. Coventry, L. R. 2 H. L. App. 71, p. 90 ; and the judgment of Cotton, L. J., in Tusaaud's Estate, 9 Ch. D. 363, at p. 380. (c) In Chichester v. Coventry, on the original hearing before Lord Hatherley, then V.-C. Wood (see Coventry v. Chichester, 2 Hemming & Miller, 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 scqnired rights of Lord Digitized by Microsoft® 304 SUPPLEMENTARY LECTURES. I may add, that this case of Thynne v. Glengall, is to be noted as having first established 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 definite sum. I must warn j'^ou, however, that, so far as I am aware, it has never yet been distinctty decided that where a father first by will gives a share of resi- due, and then settles a definite sum, the doctrine of satisfaction appHes (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 f settlement precedes, the right is a right conferred by positive contract, and no subsequent will or volimtary , 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 subsequently, on the occasion of that child's marriage, made a smaller pro- Edward Thynne nnder 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. R. 3 Eq. 236. And see Mayd v. Field, 3 Ch. D. 587. (a) It was so decided shortly after the delivery of the Lectures, in Montefiore v. Guedalla, 1 De Gex, Fisher, & Jones, 93, in connection with which case the student may with advantage read the more recent one of Meinertzhagen r. Walters, L. E. 7 Ch. App. 670. Digitized by Microsoft® SATISFACTION. 305 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 JEx parte Pye, so frequently referred to abeady. 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 " 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 " provision by which he means to satisfy it ; and " though at the time of making 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 " 5,000L" Observe those remai*kable words, ' consistent with * the principle, but showing the fallacy of much of ' the reasoning.' There is, I think, no doubt that if the asstimed groundwork of the doctrine had been maintained in its integrity, 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. Lochyer (a), contrary to the generally (a) 5 Myliie & Craig, 29. X Digitized by Microsoft® 306 SUPPLEMENTAEY LECTURES. j received opinion of the profession, that advancements 1 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 rathex', I should say, of the assumed groundwork 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 " himself 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 by a father to a child will he I " a complete ademption of a legacy, though less than the i " 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 will 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- Digitized by Microsoft® SATISFACTION. 307 sequently, upon the marriage of any one of tliem, it become necessary or expedient to advance a portion for sncli 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 to be founded 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. Can it be assumed, as a proposition so general as to be the foimdation 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 ]Dreviously des- i fined for that child, and, to the same extent, adding j 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 liimself 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- X 2 Digitized by Microsoft® 308 SUPPLEMENTARY LECTUEES. " ficial for his children. "Where, then, is the ground " of the presumption, that he intended, hy 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 I " 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, " although the parent has, by his will, adjudged the " amount of that moral debt to be a certain sum, he " is supposed, bj"- 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 re- " mains the same, and that the sum settled is only " an advance of part of what the will 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 all analogy were against the supposed rule ; and after examining the authorities, he arrived at the conclusion that there was not sufficient authority « Digitized by Microsoft® SATISFACTION. 309 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 eviden ce." It is to be borne ia mind that the rule against double portions is a pres umption of l aw, and like other pre- sumptions of law may be rebutted by extrinsic evi dence ; i.e., evidence not contained in the written instruments themselves. This is a general rule of evidence, which applies in many other similar cases (a). You cannot, it is well known, go into evidence to add to, vaiy, 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 written instrument that the presumption is incorrect, it will 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 presumption of law, there arises a right on the part of those who oppose his double claun also to go into counter-evidence to support the presumption. (ft) e.ff., cases as to doiitle legacies, as'to the executors taking residue beneficially (where the 11 Geo. IV. & 1 Will. IV. cap. 40, does not apply), &c. (6) See Tussaud's Estate, 9 Ch. D. 363 (pp. 373-375). Digitized by Microsoft® 310 SUPPLEMENTAEY LECTURES. « Bear in mind, liowever, 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 party disputing double provisions is merely a right to meet, by counter-evidence, evidence adduced by the other side to re but tlie presu mption. It is necessarjr to warn you that the observations of Sir John Leach 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 apph- 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 3,000L 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 500L, and Vice-Chancellor "Wigrani 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 (a) 2 EusseU & Mylne, 263. (6) See Hall v. Hill, 1 Drury & Warren, 94, pp. 129-138 ; Palmer v. Newell, 20 Beavan, 32 ; Taylor on Evidence, 1036 (4tli edit.), 1056 (5tl> edit.). (c) 3 Hare, 509. Digitized by Microsoft® SATISFACTION. 311 transaction, including the declarations made by the testator at the time of handing over the note. I may observe, in passing, that you wiU find in Vice-Chancellor "Wigram's judgment in this case some admii'able observations, well 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 Kirk V. Eddowes. A testator by his wiU bequeaths ' a legacy. He then hands over a promissory note. ! How can the will be thus informally revoked ? The j answer is, it is not revoked at all. The operation is' analogous to that of a common case of ademption, and in truth is commonty 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 techical 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 will gives a legacy as a portion. A portion is subsequently provided by act "inter viros." The will remains intact, but the legatee is not paid his portion, (a) See the observations of Lord Eomilly in Cliicliester v. Coventry, L. K. 2 H. L. App. 71, at pp. 90, 91, in -which his Lordship treats the expression ' ' satisfaction " as properly applicable only if here the settlement comes first and the will subsequently ; and those of Cotton, L. J. , ia Tussaud's Estate, 9 Oh. D. 363, at p. 380. Digitized by Microsoft® 312 SUPPLEMENTAEY LECTUEES. because he has akeady 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. Eddoives : — " 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 using the word " debt," I mean to exclude from its signification any obligation which, though in the natm'e 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 troMsfers by way of settlement for a child, say 10,000Z. stock, and then by subsequent will leaves (say) 10,000Z. or 15,000Z. to the same child, 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 in the form of hability 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 Digitized by Microsoft® SATISFACTION. 313 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 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 (a) According to the recent decision in Cliicliester v. Coventry, L. E. 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 child 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 10,000Z. to the trustees of a daughter's settlement, and subsequently a will direct- ing payment of debts, and giving a moiety of the residae upon trusts for the daughter and her issue, and the direction to pay debts was relied on as a material circumstance for excluding the operation of the doctrine of satisfaction. Upon this decision Lord Hatherley has observed ; — " I think " after that case it will be exceedingly difficult to hold that any subse- " qiient provision by will, after a covenant or engagement by bond in a ' ' previous 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;" Dawson v. Dawson, L. R. 4 Eq. 50i at p. 513. See Bennett 'v. Houldsworth, 6 Ch. D. 671. Digitized by Microsoft® 314 SUPPLEMENTARY LECTUEES. " •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 ; j " whereas ia the case of portions, small circumstances i " 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 " residue cannot be 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 ot being in favour of it, as in the case of portions. (i3.) — Small circumstances of difference are sufficient to repel the presumption : as where the legacy is of less amount than the debt (d fortiori of course if the tiling be not " ejusdem generis," as land or specific chattels), or even where the amount is merelj' un- I certain, as the gift of a residue, in both of which cases satisfaction takes place in regard to portions (a). (a) So, although where a portion is given to a child by will, and a sub- sequent 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 Digitized by Microsoft® SATISFACTION. 315 In reference to these cases of satisfaction of debt by SI legacy, Sir Thomas Clarke in delivering judgment in Mattheus v. Mattheirs (b), mentions a remarkable instance of the inclination of the Court to lay hold of any small circumstance for the purpose of evading the apphcation 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^ jDayable. 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 convej' a clear notion of the position of this branch of my sub- i vebut the ordinary presumption of satisfaction (see Trimmer v. Bayne, 7 Vesey, 508 ; Dawson r. Dawson, L. R. 4 Eq. 50-1), and although not- withstanding the ohservations of Lord Hatherley in Dawson v. Dawson (see note (a), at p. 313, 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 be sufficient to exclude satisfaction (see Cole V. Willard, 25 Beavau, 568 ; Pinchin v. Simms, 30 Beavan, 119). (b) 2 Vesey senior, 636. Digitized by Microsoft® 316 SUPPLEMENTARY LECTURES. 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 i blood. So where a father owed his daughter 2001. as execu- tor of the wiU of a thii-d person, and then gave her SOOl. by his own will to be paid to her at the age of 21 years if she should arrive to that age but not otherwise, it was held she might claim both the 20'0L owing hj 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. (a) Tolson •«. Collins, 4 Vesey, 482; and see Stocken v. Stocker, 4 Simons, 152 ; Fairer v. Park, 3 Ch. D. 309. Digitized by Microsoft® PERFORMANCE. 317 I must confess I find it imiDossible to reconcile these decisions with sound principle. In order to justify them it seems necessarj' 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 full age, entitled to, say, 10,000L owing to her by her father, that father being at the same time willing to give an additional 5000L, stands in a very different position in respect to negotia- tion from one who supposes the father to be settling 15,000Z. of his own free bounty. I should have thought the grounds for not implying satisfaction infinitely stronger in a case of this land, 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, let me recommend j'ou to turn to PlimJcett v. Lewis (a), where, in the judgment of Sir James Wigram, you will find all that can be said. Meanwhile it is sufficient 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 I 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. [a) 3 Hare, 316. Digitized by Microsoft® 318 SUPPLEMENTAEY LECTURES. The ordinary mode of distinguishing satisfaction from performance is by saying that satisfaction implies the substitiifcion_or gift of so_mething_ii£erent jjionLihe 1;hing_ agreed to be given, but ec[uivalent_ to it in "the eye of the law, while in cases of performance the thing agreed to be done is in truth whoUj^ or in .part iperformed. The two principal classes of cases in respect to performance are commonly illustrated by Wilcocks v. Wilcocks (a), Blandy v. Widmore (b). Wilcocks V. Wilcocks was the case of a covenant by a man on marriage to purchase lands of 200Z. a year, and settle them for the jointure of his wife, and to the iirst and other sons of the marriage in tail. He pur- chased lands of that value, and took a conve3'ance 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 lajing out an adequate portion of the j)ersonalty 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 6201. He died intestate, and the wife's share under the Statute of Distributions exceeded 620Z. This was held a per- formance. (a) 2 Vernon, 558. (6) 1 Peere Williams, 324 ; see also this and the last preceding case. White & Tudor's Leading Cases, vol. ii. pp. 376, 378 (3rd edit.). Digitized by Microsoft® , rEEFOKMANCE. 819 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 shai-e by the covenantee under an intestacy. In reference to the first class of cases, let me say, th^t the acts done commonly approach much less neaiiy to "performance " than in the second. Indeed, in IVilcocks v. Wilcocks, the word " performance " does not even occm\ The phrase used by the Judge in deciding the case, was satisfaction. This class of decisions is perhaps better represented by Lechmerc V. Lechmere, which was decided by Lord Talbot on appeal from Sir Joseish Jekyll (a). The facts were as follows : Lord Lechmere, upon his marriage with Lady Elizabeth Howard, daughter of the Earl of Carlisle, and in consideration of 6000L jDortion, covenanted to lay out, within one year after the marriage, the said sum of 60001., and likewise the farther sum of 24,000L, amounting in the whole to 30,000L, in the purchase of freehold lands in possession; which were to be settled upon Lord Lechmere himself for life, 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,OOOZ. should be laid out to ijay interest for the same after the rate of 51. per cent., unto the persons entitled ta (a) Cases temp. Talbot, p. 80. Digitized by Microsoft® 320 SUPPLEMENTARY LECTURES. the rents and profits of the lands when purchased. liord Lechmere, after his marriage, purchased several estates in fee simple in possession, hut which were never settled according to the covenant, as also several terms and reversions, and subsequently died intestate i and without issue, leaving a considerable real estate to Idescend upon the plaintiff, his nephew and heir-at-law. His widow, Lady Lechmere, took out administration, and the nephew brought his bill 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 himself thus (h) : — " The cases upon satisfaction are "generally between debtor and creditor; and 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 Court will compel a " man to be just before he is generous; and so will " decree both. But these questions are no way material (a) Lechmere v. Earl of Carlisle, 3 Peere 'Williams, pp. 224, 227. (J) Cases temp. Taltot, 80, at p. 92. Digitized by Microsoft® PERFORMANCE. 321 " 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 30,000J. 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, purchased ; which, though not purchased " with the privity of trustees, yet it was natural for the " Lord Lechmere to suppose that the trustees would " 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 Equitj'. | " The intent was, that as soon as the whole was laid! " out, it should be settled together; and not to make 1 " 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 T Digitized by Microsoft® 822 SUPPLEMENTAEY LECTUEES. " 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 say 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 3'ou that you may occasionally find referred to amongst the cases relating to "per- " formance " a class of decisions which relate to an entirely different 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 (b). There trustees of a settlement had power, with the consent (a) See Taylor v. Plumer, 3 Maule & Selwyji, 562; and the cases collected in Lewin on Trusts, 645 note (c) (5tli edit.), 731 note (a.) (6tU edit.), and Ex parte Cooke, 4 Cli. D, 12-3, (5) 17 Simons, 111, Digitized by Microsoft® PERFORMANCE. 323 of the husband and wife, to lay out the trust funds in the pm-chase of (amongst other lands) copyholds of inheritance. The husband obtained the fund and pur- chased copyholds for lives — a description of property not authoiised by the settlement ; and it was suggested that on that ground, as in Lechmere v. Lcchmere, 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 property 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 Leneh v. Lench{a), decided by Sii- William Gx'ant. 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 thej^ are essentially different. Thus 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 (b). A few words are all that I can give to the cases represented by Blandy v. Widmore (c). That was in all (a) 10 Vesey, 511. (i) See Lewin on Trusts, 645-649 (5th edit.) ; 730-734 (6tb edit.). (c) 1 Pewe Williams, 324. y 2 Digitized by Microsoft® 324 SUPPLEMENTARY LECTURES. strictness a case of actual performance. ITie husband covenanted to leave (it was not said by -will), and he did leave. But the doctrine is not confined to caseB so favour- able to its application as that of Blandy v. Widviore. Thus it applies where a husband, after covenanting to leave a sum of money to his wife, makes a will con- taining an attempted 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 (a). It does not, however, apply where the thing cove- nanted to be secured is an annuity (b). Neither does it apply where performance in the technical sense ia no longer possible by reason of the cove nant havin g been broken in_th e intestate 's lifetime , for then the case becomes one of debt. Thus, sujjpose a covenant by an intended husband in a marriage settlement to pay a sum within two years after marriage ; the husband lives for two years ; thereupon 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. o) Goldsmid v. Goldsmid, 1 Swanston, 211. (6) Couch V. Stratton, 4 Vesej-, 391 ; Salisbury v. Salisbury, 6 Hare, 526. Digitized by Microsoft® 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 mir- " 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 m 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 turned " into monej^, are to be considered as that species " of property into which they are dii-ected to be con- " verted, and this in whatever manner the direction " is given ; whether by wiU, 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 ((«) 1 Brown's Chancery Oases, 497, see p, 499, Digitized by Microsoft® 326 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 tinned into money. When once this intention is sufficiently expressed, the accidental cii'cumstance 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 — "thatjwhat ought tojbe_done, " shall be considered as^done." Thus Sir Joseph Jekyll, in a case often quoted (a), says : — " The forbearance of the trustees in 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 (a) Lechmere v. Earl of Carlisle, 3 Peerd Williams, 215. Digitized by Microsoft® CONVEESION. 327 " powerful it is, as to alter the very nature of things ; " 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, " pm-chase had been made, it [meaning the land] must " have gone to the heir ; but if the trustee, by delaying j " the purchase, may alter the right and give it to the j " executors, this would be to make it the trustee's will, ; " and not the will of the first testator, which would be ' " very unreasonable and inconvenient." The test, therefore, in these cases of conversion is not — Has the author of the trust expressly du-ected the proj)erty to be treated as converted, whether de facto converted, or not ? — for in such a case there could be no doubt. Neither is the question to be answered — Has the property been in fact converted ? — for that is immaterial. But the true question is — Has the autho r of the tr ust 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 doc- trine. In passing to a more particular consideration, some doubt crosses one's mind respecting the most con- (a) Scudamore v. Scudamore, Precedents in Chancery, 5iS, Digitized by Microsoft® 328 SUPPLEMENTARY LECTURES. venient arrangement of the subject. In practice cases of conversion commonly arise either — First. — Under wills ; and, as respects these, either in reference to conversion of money into land, or land into money ; or, Secondly. — Under settleroents, 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 conversion. I 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 conver- sion has been directed. First. — ^What words will be sufficient to produce a conversion. Here the principle is clear. You must find in the Digitized by Microsoft® CONVERSION. ■ 329 instrument (be it will or settlement) a clear, i mperative direct i on to conver t — 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 application of the maxim, that Equity considers that to have been done which ought to have been done ? I wiU 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., Curling v. May (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 500Z. to B. in trust that B. should lay out " the same upon a purchase 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, (a) Cited in Guidot v. Guidot, 3 Atkyns, 255 ; and see Swann v. Fon- nereau, 3 Vesey, 41 ; Kich v. Whitfield, L, E. 2 Eq. 583. (6) 2 Younge & Collyer, Equity Bxch. 708. Digitized by Microsoft® 3,30 SUPPLEMENTARY LECTURES. " it should have heen observed, but it is not reasonable " now to give either her heir or administrator, or the " trustee, liberty to elect ; for Lord Talhot said, it was " originally personal estate, and yet remaiaed so, and " nothing could be collected from the will as to what " was the testator's principal intention." In the latter case, Policy y. Seymour, a testatrix devised the residue of her real and personal estate to W. S., his heirs, executors, and administrators, 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 private contract, to any person or persons who should be wiUiag to become the purchaser or purchasers ; and then upon trust to invest the money to be produced by such sale or sales, together with aU 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 secm-ities 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 Digitized by Microsoft® CONVERSION. 331. life annuities; and from and after full payment and satisfaction thereof, the testatrix directed that the said W. S., his heirs, executors, and administrators should stand possessed of aU 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 heen 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 theii* 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, imtil he exercises that discretion, thejproperty " 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 bj^ 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 Digitized by Microsoft® 332 SUPI-LEMENTAEY LECTUEES. 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 weU- drawn settlement is to impress distinctly on all the property comprised in the same set of limitations or trusts a clearly defined character either of real or of personal estate, and this wholly 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 ai'e settled. So if the settlement be ^Tland, 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 pains are taken to preserve in the first case the character of personalty, in the latter the character of land. Thus in the ordinary power contained in money settlements to invest in land, the very first trust of the land bought__ always is Jo_reseU, and the character of personal estate is thus cai'efully impressed upon the land purchased. Similarly the provisions in real estate settlements for temporary investment in the public funds, or on mortgage, are carefuUy so worded as to impress upon the temporary investment the quality_of land. In truth one of the distinctive Digitized by Microsoft® CONVEESION. 333 features of a well-dra-wn settlement is a careful pre- servation to the property of one uniform quality, — i.e., I always real estate, or always personal estate. Nothing ! is left uncertain, nothing left to the option of any j party in this respect. But to return to the question under discussion, viz., What words will effect 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 j limitations are of a description exclusively applicable j to one spe cies of proper ty, 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, William Powell by his will 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 4001. 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 {a) AmMer, 241. Digitized by Microsoft® 334 SUPPLEMENTARY LECTURES. died under age. The question was, whether the 400Z. which had not been laid out on land, could be con- sidered as money, in which case P.'s will being good, under the then existing law, as a will 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; j but Lord Hardwicke, relying on the circumstance 1 that the limitations were exclusively applicable to [ real estate, held, that the discretion to invest on I securities must be confined to an intermediate invest- ment until purchase of lands, and that the 4001, was real estate. Secondly. — As to the time from which conversion shaU be deemed to take place. It is obvious that, in all cases of this kind, the terms _of the instrument_.itaelf 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 I 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 sell at that time. The case of Ward v. Arch {a) well illustrates the principle. There a testator gave all 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 {■«) 1.5 Simons, 389, Digitized by Microsoft® CONVERSION. 335 trust, in case there should not he sufficient to pay the annuity thereinafter given to his wife, to aell all his real I and personal estate, and invest the proceeds in the ] funds, and out of the dividends or the rents of his real \ estate, until the same should he sold, to pay his wife 1 an annuity of 3 0QL 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 estate in fact remained unsold long after her death. The question was, whether the real estate was to he considered as absolutely converted into personalty. The Vice -Chancellor 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 plain from the words " of the wiU, 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 effect " immediately." So, in cases like that of Policy 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 n reference to this, as indeed to every other question Digitized by Microsoft® 336 SUPPLEMENTAEY LECTUEEg. of construction arising upon them, the rule may be I said to be, that in regard to wills, conversion takes I place as from the death of the testator, and ia regard 1 to deeds or other instruments inter vivos, as from th e I 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 ivith 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 imtil an advantageous opportunity of selling 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 the 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 will in this material respect : " the will speaks from the death, the deed from de- " hvery. If, then, the author of the deed impresses " upon his real estate the character of personalty, that, " as between his real and personal representatives, (a) 7 Hare, 299, see p. 311. Digitized by Microsoft® CONVEKSION. 337 " makes it personal and not real estate from the " delivery of the dee d, and consequently at the time " of his death. The deed thus altering the actual " character of the property, is, so to speak, equivalent " 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 will ; hut the application is different, " bj' reason that the deed converts the property in " t he lifetime o f jthe_auttor of the deed, whereas, in " the case of a will, the conversion does not take place " ugtiL 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 application 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 life, 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 living at the settlor's death, j and to apply the residue to charitable purposes. Some ' of the persons named survived the settlor, so that the purposes for which conversion was dii-ected did not fail altogether, but the deed was void so far as it directed (a) i Kay & Jotnson, 257. iS Digitized by Microsoft® 338 SUPPLEMENTARY LECTURES, the proceeds of laud to be applied for charitable pui'- 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-ChanceUor Wood, founding himself upon a previous decision of Lord Thurlow («), 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-ChanceUor, in his judgment, after refer- ring to Lord Thurlow's decision, in which the case was one of conversion of land into personalty, con- tinued thus : — " The doctrine of the converse case of personalty " directed by deed or will to be converted into land, " is fuUy discussed by Lord Eldon 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 ; ' clearly recognising " the rule that conversion takes effect from the moment (a) Hewitt v. Wright, 1 Brown's Chancery Cases, 86, {V} 8 Yesey, 227, Digitized by Microsoft® CONVERSION. 339 " of the execution of the deed; and the rights of the I " 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, " clearly settled : and where, as here, real estate is " settled by deed upon trust to sell for certain speci- " fied 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 300L from James Eose, 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, hi^_executors_or^admiii^ In 1822 Wright died intestate, and without ever having been married. All the interest due on the (a) 2 Simons & Stuart, 323. z 2 Digitized by Microsoft® 340 SUPPLEMENTARY LECTURES. mortgage money had been duly paid by liim up to the time of his death, but the principal remained unpaid. The interest that accrued due after his death having remained unjDaid, Eose the mortgagee entered into possession, and afterwards sold the estate under the power of sale, for a sum which considerably exceeded 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 ultunate 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 Digitized by Microsoft® CONVEESION. 341 office of a mortgage to alter the order of devolution of property (a). To the same ground must be referred the decision of the late Vice - Chancellor Wigram in the case of Bourne v. Bourne (b). There B. being seised in fee of real 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 until the loan became payable, and upon payment of the principal 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 life, 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 (a) See the recent decision of Jones v. Davies, 8 Ch. D. 205, in Trhich A. B. and his wife, in exercise of an absolute power of joint appointment vested in them, executed a mortgage with a power of sale which provided the surplus monies arising under the exercise, of the power should be paid to A. B., his heirs, executors, administrators, or assigns, and in which the surplus proceeds arising from a sale after the death of A. B. were held to belong to his personal representative. (6) 2 Hare, 35. — See and distinguish In re Underwood, 3 Kay & Johnson, 745. Digitized by Microsoft® 342 SUPPLEMENTARY LECTURES. you to observe that in the latter case Vice- Chancellor Wigram rather lays stress upon the circumstance that . the mortgagee's trustee had merely a discretion to sell, i ■which he did not exercise until after the mortgagor's i 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). The facts of the former case are concisely stated by Lord Eldon, in giving judgment in the latter. The material facts of Townley v. Bedwell were these : A lease had been executed by the testator in the cause to Townley for thii'ty-three years, with a proviso that, if Townley, his executors, administrators, or assigns, should be desirous to purchase the premises within six j-ears, he, his executors, administrators, or assigns, should pay to the testator, his heirs or assigns, 600^ 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 ■; purchase according to the proviso ; and it was held that the purchase - money belonged to the personal representative. The danger of these decisions is manifest. If an (a) 1 Cox, 167 i see also, 14 Veaey, 596. (i) 14 Vesey, 592, Digitized by Microsoft® CONVERSION. 348 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 CoUingwood v. Row (a), in which, by an agreement dated 21st March, 1839, an option to pur- chase was conferred, and it was held that this option, when exercised fourteen years afterwards, in 1853, operated to convert real estate into personalty. The j general dislike of owners of land to confer optional rights ranging over long periods, must no doubt j render cases of this description rare ; but it is difii- i cult to exaggerate the inconvenience 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 Laives v. Bennett will receive no extension (&), it having been disapproved more or less by almost every judge under whose consideration it has come, even by those who have followed it; but, in principle, the distinction is extremely thin between cases of this class, and those where property is vested in a mortgagee, {a) 3 Jurist (N.S.), 785. (6) Accordingly, where an option of purchase is conferred and subse- quently exercised, the Court ■will not, as between the vendor and purchaser, imply a conversion as from the date of the contract'oonferring the option ; Edwards v. West, 7 Ch. D. 858. Digitized by Microsoft® 344 SUPPLEMENTAEY LECTURES. subject to a power of sale — that is to say, subject to an option — under which he has right to sell the property and convert 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. (i8.) 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 land, and was not liable to simple contract debts (5). On the other hand, an interest of this kind was, in Equity, subject to a judgment debt, just in the same way as the land itself (c). (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 certainly at seven- teen years old) might make a will of personal estate. Well, when an infant was absolutely entitled to money liable to be laid out in the purchase of land, he could (a) See Sweetapple v. Bindon, 2 Vernon, 536. (5) 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 1000^ cash, yet, because it was liable to be laid out in the purchase of laud, his heir would, under the old law, take it free from any obligation to pay simple contract debts. (c) Frederick v. Aynscombe, 1 Atkyns, 392. Digitized by Microsoft® CONVERSION. 345 j not by will dispose of it during his minority. This ' was assumed in Earlom v. Saunders [a), just now , referred to. (c.) So I apprehend (though I am not aware that the point has ever been distinctly decided) monej'^ liable to be laid out on the purchase of land could not, 'before the late Wills Act, have been devised by an j unattested will. The will must, I conceive, have been executed with the formahties required by the Statute of Frauds. Certainly money of this land would not pass by a ^vill professing to deal only with personal estate {b). So as to land absolutely directed to be sold, it is, as between all persons claiming under the author of the trust, to all intents and purposes, personal estate. It seems necessary to quaUfy, in the words just used, the statement of the operation of the doctrine of con- version, it having been held, in certain cases, that ' ... V persons not claiming in any way^-undej: the author of J( the trust, cannot invoke its aid (c). Thus, where land i 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 (a) Amtler, 241. (J) Gillies V. Longlands, 4 De Gex & Smale, 372. (c) -This qualification may now be regarded as unnecessary. According to the latest decisions (Attorney-General v. Brunning, 8 House of Lords Cases, 265 ; Forbes v. Steven, L. E. 10 Eq. 178 ; Attorney-General v. Lomas, L. E. 9 Exch. 29) 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. Digitized by Microsoft® 346 SUPPLEMENTARY LECTURES. 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 fiscal purposes, t(5 say that what is in fact real estate shall be deemed to be personalty (a). 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 of the four classes of cases adverted to at the outset of my lecture, — i.e., 1st. — Cases arising under wiUs, and separately in respect of these — (a.) Cases of conversion of land into money ; and (/3.) Cases of conversion of money into land. 2ndly. Cases arising under settlements or instru- ments inter vivos, with a similar subdivision. 1. — (a.) And first, as regards wills, 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 (a) 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 forfeiture for treason and felony have been recently abolished by the 33 & 84 Vict. cap. 23, which contains detailed provisions for the management and application of the property of convicted persons. Digitized by Microsoft® CONVERSION. 347 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, 3'ou observe, the purposes for which the conversion was directed fail totally : A. and B. are both dead. The whole object of the conversion 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 will ; in the second, one moiety of the proceeds of sale is undisposed of. Under these circumstances, two principal questions arise, — viz., I { First. — To what extent is the trust for conversion still in force ? 1 v Secondly. — Who is to benefit by the lapse — the heir | ■' ' or the personal representative ? 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 1 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 Digitized by Microsoft® 348 SUPPLEMENTARY LECTURES. 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. alope dies. Next, then, how does the matter stand when A. alone dies ? Here the trust for conversion still subsists, , for without its exercise, B., the survivor, cannot receive his moiety of proceeds : the other moiety there- I fore is, by virtue of the will, a moiety of person al j 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 Ackro yd V. Smithson (a), in which, according to tradition. Lord ' Eldon earned his earhest 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 " a ct of law ," but they can take (a) 1 Brown's Chancery Cases, 502. Digitized by Microsoft® CONVERSION. 349 liis real e state, or the proceeds of his real estate, as legatees only, and by vii-tue 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 wholty, the heir takes the land as real estate. When the trust for conversion fails pa,rtiifilly, the heir takes the share of proceeds bu t as personal estate_ {i.e., it would go to his, the heir's, personal repre- sentative or next of kin). In Smith v. Claxton (b) jon will find each of these cases very well illustrated. 1. — (/3.) Next, as regards the case of a will, 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 in the pur- chase of land, to be settled upon trusts, which failed (a) See Lewin on Trusts, 128-130 (5th ed.), 140-142 {6t]i cd.). (b) 4 Maddock, 484 ; and see Jessopp v. Watson, 1 Mylnc & Keen, ' Digitized by Microsoft® 350 SUPPLEMENTAEY LECTURES. wlioUy or partially, the heir had not an equitable right to the lapsed interest in the money so bequeathed. It was, in fact, reserved for Lord Cottenham to set this question definitely 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 t o the next of kin or res iduary lega tee. I allude to the case of Cogan v. Stevens (a), where a testator gave a sum of 30,000L 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 vaUd trusts having failed or expired, and the trust for charity being invahd, the question arose who was entitled to the 30,000L ? and ■ Lord Cottenham decided that it fell into the residue of the personal estate (&) . 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 wills. 2. — (a.) And first in reference to a conversion of land into money. Suppose, for instance, a conveyance (a) 5 Law Jom-nal (N.S.), Chanc. 17. (6) This decision was followed by Lord Hatherley (when V. -C. Wood) in Reynolds v. Godlee, Johnson, 536, see p. 582. And it is now settled (overruling Reynolds v. Godlee on that point) that where personal estate is bequeathed upon trust for conversion into land to be held upon trusts which ultimately faU, land purchased before the failure of the trusts is taEeffljy the nextTbf kin as real estate, and passes as such to the real representative of such next of kin, Cui'teis v, Wonnald, lOTh, D, 172, Digitized by Microsoft® coN\Ti:Rsiox. 351 of real estate by deed upon trust to pay the rents and profits to the settlor during his life, and after his death to sell and pay one moiety to A., if then living, and the other moietj'^ to B., if then living. Now, how will 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 strilce you that this is the same identical case as that first put with reference to a will, but it is only up to a certain pomt that it runs on all 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 still 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, tlie heir will of course (as in the case of the will) take ; for the land, 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. Whatremains undisposed of by^Jhe_deed is a moietyof 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 Digitized by Microsoft® 352 SUPPLEMENTARY LECTUBES. 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) akeady* 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 liis marriage covenants to pay lOOOZ. to trustees, to be laid out on land, to be settled to the use of himself for life, remainder to the use of his wife 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 aU 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 (a) 4 Kay & Johnson, 257. Digitized by Microsoft® CONYEESION. 353 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 himself 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 i the 1000^ to be laid out on land, then Equity will consider that done which ought to have been done, and wUl, at the suit of the heir of the settlor, order j the money to be laid out or paid to him [b). (a) Pulteney v. DarKngton, 1 Brown's Chancery Cases, 223. (6) Lechmere v. Lechmere, Cases temp. Talbot, 80. A A Digitized by Microsoft® CoNVEEsioN — Lecture II. The task which I propose to myself this evemng 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 still, I trust, sufficiently so to convey the general principles of the doctjine; 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 intimately 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 Digitized by Microsoft® CONVERSION. 355 last meeting. This I shall do under, two principal heads, viz. : (I.) Conversion by title or authority paramount. | (11.) Eeconversion. \ 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 shall at all events be sold and turned into monej^ ? 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 j)ointed 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. A A 2 Digitized by Microsoft® 356 SUPPLEMENTAEY LECTUEES. I have thought it right thus to recall to you the- leading features of the general doctrine of conversion in order to bring into more sahent prominence the difference between these and those of the subject first selected for consideration this evening, viz. : " Con- version by title or authority paramount." By this phrase Imean to characterize those eases 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 jDersonal, 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 authoritj' paramount will, I think, be found to range themselves under one of the three following heads : — 1. — Conversion by Act of Parliament, as, for in- I stance, where, under the authority of some rail- way or other Act, real estate is taken from 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 Legislatm-e, or the Court of Bankruptcy, or the Court of Chancery, takes the property of the landowner, and by an authority alto- Digitized by Microsoft® CONVERSION. 357 gether superior to liis wishes or intentions converts it de ^acto 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 j'ou 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 oiu- last meeting. 1. — Taking, fii-st, 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 all 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 public purposes, ought to be construed so as to vary as^ little_as possiblejhe 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, | notto change Jhe^ quality of the property. Subject, however, to this general principle of con- struction, the will of the Legislature, of Avhich it has been said that it can do almost anything — short of making a man a woman, or a woman a man — is the sole guide. Digitized by Microsoft® 358 SUPPLEJIENTAEY LECTURES. The case of Richards v. Attorney-General of Jamaica (a) affords a good illustration of the powerful oj)eration 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 follows: — "Also I give, devise, and bequeath, share " and share alike, unto Eosanna Eichards and her " children, all my right, title and claim to compensa- I " tion, such as may be awarded to me, as my portion j " of the compensation fund, for the emancipation of j " such slaves as may belong to me, and be living, on I " the 1st of August, 1834." This will was not attested so as to pass real estate ; but was properly executed to pass personaltJ^ By the law of Jamaica, slaves could only be devised by a will executed with the formalities requisite in the case of real estate. The Act for the abolition of slavery (3 & 4 Will. 4, c. 73, passed on 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 I arrived. The Court in Jamaica decreed, that the com- ! j)ensation money partook of the nature of real estate j 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- fa) 6 Moore's Privy Council Cases, 381. Digitized by Microsoft® CONVERSION. 359 chasers, under 3 & 4 Will. 4, c. 73, from the date of the Act, the vendor retaining a limited iaterest in the slaves for a term of years, and that the money to he 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 Parhament our 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 Consohdation Act, 1845 " (a), an Act which is almost invariably incorporated into recent Acts authorizing the expro- jDriation 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 then- land. /3. Persons who, though absolutely entitled, will not so submit. y. Persons under disability, or persons having only limited interests the land being in settlement. a. — In the first case, viz., that of a person absolutely entitled but contracting, though under compulsion, for (a) 7 & 8 Vict, c. 18. Digitized by Microsoft® 360 SUPPLEMENTARY LECTURES. the sale of land, the case is pretty clear. Induced by the pressure of the Act of Parliament 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 pm-poses personal estate (a). /3.— Where the person absolutely entitled refuses to concur in effecting the sale and receiving his purchase- money, the Legislature has provided means for ac- quiring the property iu despite of his resistance ; and the purchase-money is (under the 76th clause of the Lands Clauses Consolidation Act) paid into the Bank of England under such cii-cumstances as to effect a conversion out and out, — i.e., the purchase-money, is personal estate (b). y. — Where the land purchased is in settlement, or ■where the owner is an infant (c), or a lunatic (d), the purchase - money is paid into Court under the 69th (a) See Ex parte Hawkins, 13 Sim. 569. (J) 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) See Kelland v. Fulford, 6 Ch. D. 491. (d) The decision in Ex parte Flamank, 1 Simons (N.S.), 260, must be viewed as resting on its own special circumstances. 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 obsex-ved that the proceeds of sale are, by the statute, carefully im- pressed with the nature and quality of the land sold ; see 16 & 17 Vict, c. 70, o. 119 ; Ee Wharton, 5 De Gex, Macn. & Gor. 33. So also land sold under the provisions of the Partition Act, 1868 ; see Foster v. Foster, 1 Ch. D. 588; MUdmay v. Quicke, 6 Ch. D. 553. Digitized by Microsoft® CONVERSION. 361 section of the Lands Clauses Consolidation Act ; and it is by the express direction of the Act liable to be laid out again on the purchase of land, subject to pro- visions for an intermediate investment on Government Stock ; and the money is therefore, in the eye of a C^ourt ofJEquity, land. In a recent case (a), Vice-Chancellor Kindersley thus summed up the decisions : — " It appears then, upon " the authorities, that when the cu-cumstances 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 cu'cumstances have brought the i " case under the 78th section of the Lands Clauses " ConsoHdation 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 representatives. 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 authority conferred by the Bankruptcy Laws. The case, decided in 1821 by Sir John Leach, of (a) Harrop's Estate, 3 Drewry, 726, see p. 733. Digitized by Microsoft® 362 SUPPLEMENTAEY LECTUEES. Sanks y. Scot t (a), may be usefully referred to \v^n this point. In that case Scott, Nicholson, and Smith carried on business as bankers in partnership, and were inte- rested in the profits and losses in various proportions. A commission of bankruptcy was awarded against them, and the full amount of the joint 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 46,000Z. beyond 1 his proportionate share of the losses of the firm. Parts of the estate were sold during the life 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 I assignees. The question was, what were the rights of the heir of Scott in respect of the surplus^^odu£e_of : sale of the estates sold under Jhe bankruptcy? Sir ' John Leach m his judgment expressed himself thus : — "As to the real estate sold or contracted to be sold " during the hfe 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^ heii', subject to " the chal'ge created by the provision of the Bank- *' ruptcy laws for the payment of his debts. It can {a) 5 Haddock, 493. Digitized by Microsoft® CONVEESION. 368- " make no difference in priaciple, 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 lifetime might not, have been held to be real estate, seems hardly to have been argued ; and it may be doubted whether, accord- ing to the principle of the next decision to which I shall refer, the pomt might not have been successfuUjr pressed. 3. — As to conversion by the Court of Chancery.^ Where landed property is subject to debts and charges, saj', 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 seU more than necessary. A question then arises, what is the character of the sm'plus j)roceeds ? Eeal estate or personal. This point is covered bj^ the decision in Cooke v. Dealey (a). In that case the testator, Samuel Cooke, directed thaTaiWiis debts should be paidby:Jiis-eTect[tDrs"Otit of his personal" es'tate^^JIeTlevised his real and per- sonal estate to-krS^viferosJife, and after her decease (a) 22 Beavan, 196. See as to this case note (a) at p. 365 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, 34 Beavan, 504, is one of the most recent. Digitized by Microsoft® Ul 5to? I IA^° 364 SUPPLEMENTAEY LECTURES. he bequeathed IQOOL to the plaintiff, and, sjAject thereto, he devised and bequeathed one fourtly of his real and personal estate to his daughter, Eliz^Dealey, and the rest to other persons. The testator survived ^is wife and died ^ 1851. A suit was instituted for the administration of the estate, to which Ehza Deaiey and her Ausband were parties. By the decree, the, usual aocounts were di- rected, and the real estates were ofdered to be sold for the payment of the debts andylegacies ; and they were sold accordingly. SubsQnpently to the decree and to the sale, Eliza Deaiey fejAinto a state of mental imbecility, and the estates, in oonaequence, were vested in the purchasers under tite Taustee Act. Eliza Deaiey died, and in April/ 1855,\her husband took out administration. Afte/ payment of the testator's debts and legacies, there still remained a surplus of the produce of the/ real estate Vn Court. The husband and administrator of Eli^ Deaiey then presented a petition,iwhereby he claimed one-fourth of the fund in Co^-t as personal esmte ; but this claim was contested by her heir-at-law,\who insisted that the surplus flmd still retained the\character of realty. In delivering judgment, the Master ofUhe Eolls, after referring tfi the general rule, that the conversion must take plafce only to the extent of tae object required, and/to certain cases in Lunacy wiiich had been rehed jupon by the counsel for the Bjisband, continued thus I thinlf, however, that the authorities citell, and Digitized by Microsoft® CONVERSION. 365 " rules in lunacy^Tiek^t alter the principle in these " cases. More of the mtK^tate was ^sold than was " necessarj' ; of course, the c&asBEsfon is complete " to the extent to which the ,piira&&SB-money was| " required for the particular object for whuSi^^e sale I " took place, namely, for the payment of the debti " costs, but the excess, though in the form of money^ " 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 wliich 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 jiroceeds to A. By virtue of this absolute trust the real estate is in Equity converted into pei'sonal estate.. 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 (a) The soundness of the decision in this case, and of Jermy v. Preston, 13 Simons, 356, which was to the same effect, has been questioned by the present Master of the EoUs (Sir George Jessel), who states his view to be, that "if a conversion 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 ques- ' ' tion to be considered in all these cases is whether the estate has been " rightfully or wrongfully sold," Steed v. Preece, L. K. 18 Eq. 192. Digitized by Microsoft® ! 366 SUPPLEMENTAEY LECTURES. the right of every absolute donee or owner to dispense with, or forbid the execution of, any trust in the per- formance 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 lOOOZ. I prefer that the annuity " should 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 annuitj'' itself. This is a principle of very wide range. Its apphca- tion to cases of conversion is at once apparent. In i;he case just supposed, of lands devised upon trust to rsell and pay the proceeds to A., A. is entitled to tlie proceeds of sale ; and being absolutely entitled, he has a right to dispense with the execution of the trust for I , 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 well point out the different sense in whicli 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. ThenJL treated of the ohUcigMon to elect between two species (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. Digitized by Microsoft® CONVERSION. 367 of property or benefit. 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. Reconversion 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 : — 1. Who ma y elect so as to effect a reconversion. 2. How an^election may bg fljade, so as to produce that effect. And first, who may elect ? It seems to flow from the mere statement of the general principle, that, where the person absolutely I 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, j 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 an 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 f5um of money directed to be laid out on land, said that it must be put out for the benefit of the infant, he, by reason of his infancy, being incapable of making (a) 1 Peere WiUiams, 389. (5) 1 Merivale, 296. And see Ee Wharton, 5 De Gex, Macn. & Gor. 33. Digitized by Microsoft® 368 SUPPLEMENTAET LECTURES. an election. And in Ashhy v. Palmer (b), where there "was a trust for sale of real estate, and one of the daughters of the testatrix was a lunatic, Sir William Grant, after saying that a testator may dispose of his property as he pleases, continues thus : — " In the wiU now before me, it is clearly given bj' " the testatrix to her daughter only as money. "When " she arrived at twenty-one, it might be that the whole " would remain unsold, and then she might have elected " to take 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 particidar consideration. I And first, suppose the case of money directed to be laid out in the purchase of land, and the/e))ie covert absolutely entitled to the land. In this case, before the late Fines and Eecoveries 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 SOOOl. 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 5000Z., conveyed land to the wife. Then the husband and wife sold the land back for the same 5000Z., levying a j&ne_oftheJand. There was, however, a mode of avoiding this cir- Digitized by Microsoft® C0XVEK3I0N. 8G9 cuitous process, wliich is thus described by Lord Hardwicke 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 " 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 t his Coux't, " '!X]i§£§feLj}iS— 5B.C^ iii^y consent to tal^jthis 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 (i) ; and the reason of " it is this, that at law, money so articled to be laid out " in 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 (a) 2 Atkyns, 453. (6) See Binford v. Bawden, 1 Vesey, jun., 512; 2 Vesej, jun., 38. See also Standering v. Hall, 11 Ch. D. 6£2, in whicU last case the present Master of the Rolls ordered the proceeds of sale of real estate to which a, married woman was entitled in fee to ho paid to her hushand on lier electing by examination in Coart to take the money as personal estate. n c Digitized by Microsoft® 370 SUPPLEMENTAIIY LECTUKES. " liaye 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 all the wife's interests in the proceeds to arise from the sale of the land. This was the point in May v. Roper (a). There a married lady, being entitled to a share of the proceeds of real estates dii'ected to be sold, joined 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 fi-om 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 j)urchased 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 making a sham pur- {a) i Simons, 360. Digitized by Microsoft® CON'VEKSION. 371 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 Kecoveries, the result is precisely similar. That Act in substance says (a), that a married woman may, with the con- f currence of her husband, and with the formalities | there prescribed, dispose of any estate at Law or in I Equity, or any interest (I condense the words pur- posety) 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 full 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 Recoveries Act, as I stated just now, enables a married woman to dispose of any interest in (a) 3 & 4 Will, i, cap. 74, s. 77. B B 2 Digitized by Microsoft® 872 SUPPLEME^'TAEV' LECTDEES. 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), j-et where that personal estate consists of monies to arise from the sale of real estate, she may do so by deed acknow- ledged (6), the subject-matter of disposition being then an interest in land, and falling therefore within the words of the statute. This was the point decided in Briggs v. Chamberlain (c). 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 eifect 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 la nd, either " at law or in equity, or any charge, lien, or incum- " brance in or upon or affecting land, either at law or " in equitj^ 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 (a) Pp. 61—65, ante. (6) 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 v. Bollans, L. K. 3 Ch, App. 717. (c) 11 Hare, 69 ; and see Bowyei- r. 'Woodman, L. K. 3 Eq. 313, Digitized by Microsoft® CONVEESION. 373 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. Allen, in which the then Vice-Chancellor Knight Bruce is reported to have come to a different con- clusion. This decision du-ectly conflicts with the case of lilay 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 (a) In Tiier v. Turner, 20 Beavan, 560, the same point was decided in the same way by the late Master of the Rolls ; and see Bowyer ■d. Wood- man, L. R. 3 Eq. 313. Digitized by Microsoft® 374 SUPPLEMENTARY LECTURES. estate, may, with the concurrence of her husband, make an absohite title to the proceeds, and when this is once eifected, the person so absolutely entitled may claim the land discharged from the trust to sell, and thus eifect a reconversion. The question, therefore, in respect to personal capacity of individuals to effect a reconversion, may be thus summed up : — A lunatic cannot elect or effect a reconversion ; neither can an infant ; but a married woman, although in strictness she ca nnot elect, can nevertheless, though the special powers of disposition belonging to her and her husband, effect a recon- version. 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 jiossession. But how wUl 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_mone;Lto be laid out on land, or land to be turned into money . Take the last case first. Suppose land devised ujpon trust to sell, and to pay one moiety of the proceeds to A., and the other moietj"^ to B. Here, how can A. alone, or B. alone, elect to take the land? Each is entitled to have the wliole land sold. A sale of an undivided moiety would obviously produce a far less Digitized by Microsoft® fiONVERSION. 375 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. Haddiffe (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 (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 wiU 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 thus : — " 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 t^tejegatees 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 («) 23 Beavan, 163, Digitized by Microsoft® 376 SUPrLEMENTAEY LECTURES. " others, elect to take liis share as unconverted, and " in the shape of real estate." Next suppose the case to he that of a sum of money directed to he laid out on the purchase of land to he 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 strongly to be expected that separate purchases would prove more beneficial to each than a joint purchase subject to a right to partition. 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 j'ou to the case ot Seeley v. Jago (a). There a testator devised that lOOOL should be laid out in purchase of lands in fee, to be settled upon A., B., and C, and their heirs equally to be divided. A. died, leaving an infant heir; and B. and C, together with the infant heir, filed a bill for lOOOL The judgment of Lord Chancellor Cowper is thus reported : — " The money being 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 (a) 1 Peere Williams, 389. Digitized by Microsoft® CONVEESIOX. 377 " tlieii- 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 turn 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 kind, can elect so as to effect a reconversion. 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 before 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 one tenant in common of the Digitized by Microsoft® 378 SUPPLEMENTARY LECTURES. 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. Ashhurner(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 arnd personal represen- tative, say that a particular reversionary interest to which he is entitled shall be treated as money or land, the proposition is indubitable. Even a tenant in common of proceeds of sale of land directed to be sold, maj' 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 will, perform that act of election by which pro- Iperty is to be deemed as reconverted into its actual ! character ? In the case of Triquet v. Thornton (6), 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 heii* and personal representatives, (rt) Leading Cases in Eriuity, Vol. I. p. 685, (5) 13 Vesey, 345. Digitized by Microsoft® CONVERSION. 379 But if this be so, this reconversion is, at all events, of a conditional or qualified kind onlj-. Thus, to revert to our former illustration (money 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 talie it as money, subject to A.'s rights, and this exercise of election will be operative as between his real and personal representatives. But how if A., the tenant; for life, should subsequentl}'' 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. Such, I thiak, must be the view, even if the decision in Triquet v. Thornton is to prevail (a). On the other hand, the observations of Lord Justice (then Vice -Chancellor) Knight Bruce, in the recent case of Gillies v. Longlands (b), 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 (c). (a) The recent decision in Meek r. Devenish, 6 Ch. D. 566, is in exact accordance with this view. It was there held that a person contingently entitled to the proceeds of real estate directed to be sold may, pending the contingency, elect to take the estate as realty, and that such election will hecome operative upon the contingency happening. (i) 4 De Gex & Smale, -372. (c) The judgment of Lord Westbuiy, in the case of Sisson v. Giles, 32 Law J, (N.S,) Chanc, 606 ; 3 Pe Gex, Jones, & Smith, 614, points to Digitized by Microsoft® 380 SUPPLEMENTARY LECTtJEES. There land was held, upon trust to pay the income to the separate use of a married woman for life, 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 Hfe 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 children " 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 propertj^, 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 call your attention is, as to the mode in which election may be made, or, in tie conclusion tHat, in order to effect a reconversion by the mere process of election, the party or parties electing must possess the entire absolute ownerahip in the subject-matter to be reconverted ; but the decision itself may be supported on the simple grounds mentioned by V. -C. Malins in Meek v. Devenish. In Walrond v. Eosslyn, 11 Ch. D. 640, the right of a jointress to have a fund of personal estate laid out in the purchase of land was held sufficient to prevent the owner of the fund subject to the jointure from electing to take the fund as personal estate. Digitized by Microsoft® CONVERSION. 381 other words, what will amount to an election to take the propertj' in its actual state so as to effect a recon- version. The very statement of the point implies that a posi- tive declaration of intention is not requisite, for of course an express declaratio n of intention on the part of the owner of property that it shall be deemed either real or personal estate is ""per se" sufficient to hmd those claiming under him, without any reference to the actufil state or condition of the property at the time. Thus, take the case of land directed to he sold and the proceeds of sale paid to A. As to any personal estate, from whatever source arising, A. may, by express declai^ation, 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 to be sold) though in Equity of one quality, is in fact of another 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_own£r_,uneqm- voc ally sh ows his desu-e and intention to possess the property according to its actual state and condition, that shall amount to an election so to take the pro- perty, and operate a reconversion. It results, therefore, that this election, this expres- Digitized by Microsoft® 382 SUPPLEMENTARY LECTURES. 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 Harcourt v. Seymour (a), where the question was, whether Lord Harcourt had by his acts recon- verted into money a sum of 32,000L, 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 bean 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 I " 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 I " some election by him, it would be turned into land, " is quite immaterial. If, being money, the partj' ab- " solutely 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 (a) 2 SimonB (N.S.), 12, 46. Digitized by Microsoft® co^'VEESION. 383 distinct rule. Perhaps the best general statement is that given by Lord Cottenhani in the case of CooJcson V. Cookson (a), in the following words : — " All the cases estabUsh 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, a ny act of his indicating an option in which " c haracter 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. Entry upon the land and receiving the rents and profits (b) has generally been viewed, and justly so, ' as affording a strong indication of intention to elect ; and though in one case (c) Sir William Grant seems to have considered that an entry for two years was too short a time to amount to an election, the authority of that decision is open to considerable doubt. So the circumstance of granting leases reserving rent to the party entitled, his heirs or assigns, would afford a strong indication of election (d). {a) 12 Clark & Finnelly, 146. (b) See Ke Gordon, 6 Ch. D. 531. (c) Kirkmanti. Miles, 13 Vesey, 338. {ct} Crabtree v. Bramble, 3 Atkyns, 680 ; and see Mutlow v. Bigg, 1 Ch. D. 385. Digitized by Microsoft® 384 SUPPLEMENTARY LECTURES. So any acts showing an intention to treat the trust as at an end (a). In Da vies v. Ashf ord (b), 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 his rights under the settlement, and they having advised him that he was entitled to the whole beneficial in- terest in 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 " he meant the trust to be at an end, and to take " the estates as land. " It does not distinctly appear in whose custody the " title deeds originallj' were ; but it is clear that there " was a change in the possession of them, and that (a) As for instance an agi'eement for the partition of the lands, Sharp v. St. Sauveur, L. E. 7 Ch. App. 343 ; or a petition to Parliament against a Railway Bill presented as on behalf of owners of the lands, and stating an intention to lay out the estate for building, Re Davidson, H Ch. D. 341, (6) 15 Simons, 42. Digitized by Microsoft® CONVERSION. 886 " Mr. Davies got them into his custody. Now was " not that of necessity a destruction of the trus t ? For | " the trustees could not have compelled Mr. Davies " to deliver up the deeds ; and, without doing so, they " could not have made any effectual sale of the estates. " Therefore, it seems to me that, by consulting on his " rights mider the settlement, and then taking 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 suffice. Thus, in Cookson v. Cookson (a), already referred to, the question, whether a sum of 10,000L, 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 Harcoiirt v. Seymour (b), also before referred to, a reconversion into money was, 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 inteimediate remainders which failed on bis death without issue) to himself in fee. (a) ]2CIarl!;&Finnelly, U1. [h) 2 Simons (N.S,), 12. (; (J Digitized by Microsoft® 386 SUPPLEMENTARY LECTURES. In concluding, as I am now compelled, my sketch of the doctrine of conversion, let me earnestly recommend to youi' 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 sound 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 deservedly escaped all hostile criticism. Digitized by Microsoft® ON THE DEFENCE OF PUECHASE FOE VALUABLE CONSIDEEATION WITHOUT NOTICE. CHAPTEK I. It is j)roposecl to give in the following pages a sketch or outline of the Equity doctrine in respect to/ the defence of purchase for valuable consideration ■without notice, distinguishing what may be con-| sidered as settled from what must be regarded as still uncertain . This investigation cannot be considered as of mere speculative interest, for the Judicature Act, 1873, provides that the High Court and every judge thereof, shall give to every equitable defence the same effect as the Court of Chancery ought to have given to it in any suit or proceeding instituted in that Court before the passing of the Act {a) ; and that generally where there is any variance between the rules of Equity and the rules of the Common Law with reference to the same matter, the rules of Equity shall prevail (&). We will endeavour first to ascertain as nearly as we can what were the rules and doctrines of the Court of (a) Section 24, subsection (2). (6) Section 25, subsection (11)- Digitized by Microsoft® C c 2 388 PURCHASE FOR VALUABLE Chancery with respect to the defence of purchase for vahie without notice, and then consider their applica- tion, or possible appHcation, to litigation arising or to arise since the Court of Chancery became merged in the Supreme Court. It may be premised that by " Purchaser for valuable >/ J. %1 Mill I iiiiiaiini'«i»ii inriir'-'r -im , , " consideration without notice, '\is meant a person who has paid or given money or money's worth for pro- perty, or some interest in property, without knowledge or the reasonable means of knowledge, of some claim I against the property, or the interest therein purchased, ! already subsisting at the time when the consideration j was paid : and the occasion for the defence arose upon the person entitled to the prior undisclosed claim taldng some proceeding in the Court of Chancery impeaching or tending to impeach the title of the purchaser. The question is, under what circumstances and to what extent was the defence a bar to such proceedings, and what is the rule or principle which governs or determines the validity, or otherwise, of the defence. Now a reference to the judicial authorities discloses an amount of conflict in the decisions greater, perhaps, than has attended the development of any other Equity rule or doctrine ; and such statements as we find of any general principle are almost equally at variance. In many cases decided by judges of the highest authority, we find expressions which, taken literally, amount to this, that the defence is, under all circum- stances, an absohite, unconditional bar. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 389 Thus Lord Nortliington says (a) : "A purchaser " without notice for a valuable consideration is a bar " to the jurisdiction of the court." Lord Lough- borough, though he certainlj'- did not always adhere to the principle {b), is found saying on one occasion (c) : " I think it has been decided that against a purchaser " for valuable consideration without notice, the court " will not take the least step imaginable." Lord Eldon, in a celebrated judgment, expresses himself thus : " I am not aware that follows as a principle of " sound equity if the principle of the court is that " against a purchase}- for valuable consideration loithout " notice the court gives no assistance '' (d). Lord St. Leonards says : "In my opinion, whether the pur- " chaser has the legal estate, or only an equitable " interest, he may, by way of defence, avail himself of " the character of a purchaser without notice, and is " entitled to have the bill dismissed against him, " though the next hour he may be turned out of " possession by the legal title " (e). And Lord Romilly says : " My opinion is that, when once you " establish that a person is a purchaser for value " without notice, this court will give no assistance " against him, but the right inust be enforceJ[_ at "law"(/). " Now the first observation to be made upon this (a) Stanhope y. Earl Vemey, 2 Eden, 81 ; see p. 85. (6) See Strode v. Blackburne, 3 Vesey, 222. (c) Jerrard v. Saunders, 2 Vesey jun., 454 ; see p. 458. {d} WaUwyn v. Lee, 9 Vesey, 24 ; see p. 34. (c) Bowen v. Erans, 1 Jones & Latouche, 178 ; see p. 264. (/) Attorney-General v. WiLkins, 17 Beavan, 285 ; see p. 293. Digitized by Microsoft® 390 PDECHASE FOB VAIUABLK apparently overwhelming concurrence of high legal authority is that the acceptance of the principle, as laid down in its simple unqualified form, would he repugnant to the every day practice of the Court of Chancery and of its virtual successor the Chancery Division of the High Court of Justice. For instance it is clear that the defence has no application where a person claiming as cestui que trust invokes the jurisdiction of the court to obtain distri- bution or administration of a trust fund which is either in the custody of the court itself or in that of a third person who is before the court in the character of trustee. If, in such a case, the fact that a claimant later in point of time of purchase was a purchaser for value without notice could be regarded as a reason for the court not exercising its ordinary jurisdiction, the result would be to paralyse the action of the court altogether ; since clearly the claimant earlier in time of purchase must have taken without notice of rights which were not even existent when his own were acquired. Some limitation or qualification of the principle as so stated is absolutely necessary. What is it ? The reported decisions afford, so far as the writer is aware, no direct answer to this question. In a case which came before Lord Westburj', and in which the universal, unqualified nature of the defence was strongly insisted on at the bar, his lordship, while denying the universal application of the defence, made no attempt to define completely the lunits to its apphcation, but contented himself with classifying the cases in which Digitized by Microsoft® CONSIDEBATION WITHOUT NOTICE. 891 the defence had been held to be properly applicable, and witli distinguishing the case before him from those so classified (a). The judgment of Lord West- bury has been the subject of much comment, and cannot, it is considered, be regarded as unimpeachable in all respects ; but the classification of cases adopted by him is sufficiently accm-ate for general purpose?, and, as it is the only one possessing any sanction of judicial authority, it is proposed to adopt it here for the purpose of discussing and consideriag the cases themselves. After this discussion, but not until then, some attempt may perhaps be usefulty made to discover the principle or circumstances limiting the application of the defence. Lord Westbury says in effect, in the case referred to. There appear to be three cases in which the use of this defence is most familiar. (I.) — "Where an application is made t o the auxilia rii jurisdiction of the Court by the possessor of a legal title, in which case the defence (Lord Westbury says) is good; and the reason given is that, as against a purchaser for value without notice, the court gives no assistance — that is no assistance to the legal title. But (Lord Westbury continues) this rule does not apply where the Court exercises a legal jmisdiction concurrently with Courts of Law; and he cites, in support of this exception, Williams v. Lamhe (b), and Collins V. Archer (c). (a) Phillips v. Phillips, i De Gex, Fisher & Jones, 208. (6) 3 Brown's Chancery Cases, 263. (c) 1 Kussell & Mylne, 284, Digitized by Microsoft® 392 PURCHASE FOR VALUABLE (II.) — Where there are several purchasers or incum- brancers, each claiming in equity, and one who is later I in time succeeds in obtaining an outstanding legal ; estate, or some otEer legaladvantage ; and the principle i is that a Court of Equity will not disarm a purchaser, which is the common doctrine of the " tabula in nau- fragio." ^ (III.) — Where there are circumstances that give rise j toanequity as distinguished from an equitable estate, \ as for example an equity to set aside a deed for fraud j or to correct it for mistake. Following then Lord Westbury's classification, let us first consider the cases of application by the pos- sessor of a legal title to the auxiliary jurisdiction of the Court of Chancery. . , These cases maj' be conveniently ranged under the I lieads of bUls for discovery in aid of proceedings at I law, biUs for discovery and for. the delivery up of title- deeds (a) or for the removal of terms, and bUls to ' perpetuate testimony. ^ (a) Lord Westbury in his classification, expressly mentions a bill for the delivery of title deeds (referring to Wallwyn v. Lee) as an instance of application to the auxiliary jurisdiction of the Court, and we are here merely following his classification ; bat the question whether a particular head of Equity jurisdiction should more properly be regarded as " exclu- sive," "concurrent," or " auxiliary, " is of ten attended with difficultly. Thus *' specific performance" might be considered "exclusive'' in so far as a Court of Equity alone afforded the particular remedy, ' ' concurrent " in so far as it exercised concurrently with Courts of Law jurisdiction in respect to the particular contract of sale, and "auxiliary" in so far as the particular remedy afforded by the Court of Equity aided the defectiveness of the remedy given by the Common Law Court. According to the last of these aspects, a bill for the delivery of title deeds would correctly be regarded as an application to the "auxiliary jurisdiction." Digitized by Microsoft® COXSIDERATION WITHOUT NOTICE. 393 As respects bills for discoverj', the leading case of Bassett v. Nosworthy (a) is one of the earliest and most authoritative decisions. There an heir-at-law filed his bill against a person claiming as purchaser from the devisee under the wUl of his ancestor in order to discover a revocation of the will. The defendant pleaded that he was a purchaser for valuable consi- deration hand fide and without notice of any revo- cation, and the plea was allowed ; and upon the truth of it being established by evidence, the bill was dismissed. The bill sought also to set aside incumbrances which the defendant had bought in to protect his purchase. In delivering judgment, Lord Nottingham (then Lord Keeper Finch) thus expresses himself: — "A " purchaser hona fide without notice of any defect in " his title at the time of the purchase made may " lawfully buy in a statute or mortgage or any other " incumbrance, and if he can defend himself at law by " any such incumbrance bought in, his adversary shall *' never be aided in a Court of Equity by setting aside " such incumbrances, for__E£uity wyi_not disarin_ a " purchaser." A more distinctly typical instance of the simple bill for discovery occurs in the case of Jerrard v. Saun- ders (b), which came twice before Lord Loughborough. On the first occasion, although the defence of purchase for value without notice had been pleaded. Lord (a) Keports . professing to be absolutely entitled under the sham deed, and having in fact the legal estate as surviving mortgagee, mortgaged to G. H. without , notice of the first mortgage, and it was held that G. H. had prioritj\ It was argued in each case that the title to the legal estate being traceable only through deeds (in the first case the valid mortgage and fraudulent release, and in the second the valid mortgage alone) which disclosed the trust, the respective mortgagees E. F. and G. H. must be deemed to have had notice of the trust ; but that view, though upheld by the Court of first instance, was considered untenable on appeal ; and it being thus settled that E. F. and G. H., who were in fact (a) L. E. 11 Eq. 53, 7 Ch. 259. Digitized by Microsoft® 45i6 PUKCHA.SE FOE VALUABLE. ignorant, were not affected by constructive notice, tlie result, as stated under our third head, followed as of course. Here we may conveniently notice some observations of Lord Hardwicke in his judgment in Willoughby v. WiUoughhy (a), which seem to have been considered by Lord Eldon as presenting considerable difficulty ; but which are, it is submitted, perfectly clear and con- sistent, if they are regarded as apphed not to a case where the legal estate is got in by a transaction sub- sequent to that on the occasion of which the money was paid; but (as was the case in WiUoughhy v. Willougliby) as part of the original transaction. Lord Hardwicke, after referring to the position of trustees to preserve contingent remainders, says : " It is "just the same here. If the puisne purchaser or " mortgagee has notice of the prior purchase or in- " cumbrance, he shall not avail himself of the assign- " ment of the term (h), but shall be decreed to " reconvey or procure it to be reconveyed. If he has no " notice, he must retain it ; but if the trustee who " joined in the assignment had notice of such prior " purchase or incumbrance, his conscience was affected " by the trust, it was a breach of trust in him ; and " he ought to be decreed to make satisfaction. This " is in my opinion what equity would demand." In reference to these words (for it is assumed that to (a) 1 Term Eeports, 763 ; see page 771. (6) In the particular instance before Lord Hardwicke, the legal estate of ■which the person who alleged himself (but was held not to he) a purchaser for value without notice claimed the benefit, was a term of years. Digitized by Microsoft® CONSIDERATION A\'ITHOUT NOTICE. 42T them reference was intended to be made), we find Lord Eldon saying (a) : " One of the greatest difficulties I " met with in deciding the case of Maundrell v. " Maundrell, was Lord Hardwicke's expression, that " the purchaser would be safe in taking the assign- " ment, if he could get it ; but his Lordship would " not say the trustee would be safe. Surely if the " purchaser would be safe the trustee ought to " be so." Unless there be some misconception on the part of the present writer as to the particu.lar observations of Lord Hai'dwicke to which reference was intended to be made, it is submitted that the whole difficulty arises from treating them as having been made in respect to the operation of getting in a legal estate from a trustee, by a transaction separate and distinct from the origiaal purchase or mortgage, instead of to a case where the legal estate is obtained as part of the, original transaction. The fourth state of circumstances does not, so far as the -writer is aware, occur in any reported case.; but it seems clear upon principle that the purchaser or mortgagee could in no sense be a purchaser for value without notice, and could not therefore be protected by any legal estate so acquired. We pass now to the consideration of the cases in which the legal estate is acquired from the trustee by a transaction subsequent to and distinct from that of the original purchase or mortgage. (a) Ex parte Knott, 11 Vesey, 609, see p. 613; and see observations of Lord Hatherley in Carter v. Carter, 3 Kay & Johnson, 617, at p. 640. Digitized by Microsoft® 428 PURCHASE FOE VALUABLE Here, again, we may liave the same four states of circumstances as those mentioned in reference to the contemporaneous acquisition of the legal estate (a). The first, where both trustee and purchaser or mort- gagee knew of the trust, is the case of Saunders v. Dehew ib), mentioned at the outset, and no advantage is acquired by the purchaser for value. The second and third states of circumstances might possibly occur in respect to a transaction by which a legal estate is acquired subsequently to the origiual purchase or mortgage, and if they should so occur, then, upon all principle, the result must be the same as where the legal estate is acquired under the original transaction ; but of course, if it be supposed that the subsequent transaction takes place after discovery by the purchaser or mortgagee of the faultiaess of his own title, and of the fact that the true equitable title lies elsewhere, these second and third states of cir- cumstances fail to exist, and maj be discarded from our consideration. This brings us to the fourth state of circumstances in which the trustee is supposed to be ignorant (say is the legal representative of a former satisfied mortgagee who knows nothing of the subsequent equitable title), while the purchaser or mortgagee has discovered the infirmity of his own title, and is aware of the existence of a prior equitable title in some one else. The distinction between this case and that where the fourth state of circumstances occurs in connection (a) See page 423, ante. (S) 1 Vernon, 49. Digitized by Microsoft® COXSIDEEATION WITHOUT NOTICE. 429 with a convej^ance from the trustee, as part of the original pm-chase or mortgage transaction, is obvious. In the latter, the purchaser or mortgagee parted with his money with knowledge that the person conveying the legal estate was trustee for some one else. He is, as already stated, in no sense a bond fide purchaser for value without notice. In the former case he does undoubtedly fiU that character, and the only question is, whether he is at liberty to avail himself of the ignorance of the trustee to protect the original transaction, which was in every respect bond fide. The head and front of his offending consists only in concealing from the trustee facts which, if disclosed, would show the trustee that he ought to convey not to the purchaser, but to some other person. Does this concealment vitiate the transaction ? It is conceived not. In the eye of a Court of Equity the purchaser is, in a certain sense, considered to have an equal equity with the claimant prior in time. The trustee conveying as he does, in ignorance of the true title of which he has no notice, violates no duty, and incurs no liabihty ; and the pm-chaser or mortgagee acquires and holds the legal estate as a plank in shipwreck. This view is supported by the judgment of Lord liatherley, when Vice-Chancellor, in Carter v. Carter {a), who after referring to Saunders v. Dehew, there says, that the authorities he had found on the subject (a) 3 Kay & Jolmson, 617, see p. 642. Digitized by Microsoft® 430 PURCHASE FOE VALUABLE resulted in this distinction, "that although j'ou maj' " get in any outstanding legal estate which a person " may bond fide assign to you, you having notice of " the intervening incumhrance, he not having any such " notice, you cannot procure a conveyance from a ■" trustee who himself has an adverse duty to per- " form, and who, hy such conveyance, would in fact *' be making over the estate to you to protect you '' against the very interests which it was his duty to " protect." The conclusion arrived at is, however, not free from difficulty, and we find Lord Justice James thus ex- pressing himself on the subject in a recent judgment : ■" But those cases where the person seeking the ■" conveyance, knew the fact that the trustee was ■" trustee for somebody else, and could not convey "" without a breach of trust, whilst the trustee was ■" left in ignorance ; those cases, I say, involve a ■" principle I have never been able to miderstand " (a)' We will now consider two material distinctions between Lord Westbury's second class of cases and the first class. First. — Under the first class, as we have seen, the person setting up the defence has, as a rule, no legal title, and often no title at all ; whereas, under the second, the defence is available only where the mort- gagee or purchaser setting it up has actuaU}^ obtained a legal estate. By the seventh resolution in Brace v. Duchess of Marlborough {b), the law on the subject is (a) Piloher v. Eawlins, L. E. 7 Ch. 260, see p. 268. (6) 2 Peere Williams, 491, see p. 496. Digitized by Microsoft® CONSIDERATIO>J WITHOUT NOTICE. 431 thus laid down : — " In this case it appeared that a " puisne incumbrancer bought in a prior mortgage in " order to unite the same to the 2ndsne incumbrance, " but it being proved that there was a mortgage prior " to that, the Court clearly held that the puisne in- " cumbrancer, where he had not got the legal estate, " or where the legal estate was vested in a trustee, " could there make no advantage of his mortgage, but " in aU cases where the legal estate is standing out, " the several incumbrances must be paid according to " their priority in point of time ; qui prior est in tempore '' potior est injure." The foregoing statement of law was adopted by Lord Hardwicke in Willoughhy v. WillougUhy (a), where he says : " Wherever the legal estate is standing out, " either in a prior incumbrancer, or in such a trustee ^' as against whom the puisne incumbrancer has not the " best right to caU for the legal estate, the whole title ■" and consideration is in equity, and then the general " maxim is ' qui prior est tempore potior est jure.' " This doctrine received a strong application in the case of Hooper v. Harrison (b), decided by Lord Hather- ley when Vice- Chancellor, in which a first mortgage ■with power of sale, and a third mortgage taken without notice of a second, became both vested in the same person, and that person having sold the mortgaged property under the power, it was held that there being no longer any legal estate vested in the third mort- gagee, the surplus proceeds of sale, after satisfying the (a) 1 Term Reports, 763 ; see p. 773. (6) 2 Kay & Johnson, 86. Digitized by Microsoft® 432 PURCHASE FOE VALUABLE first mortgage, could not be retained in satisfaction of the third mortgage, but must go to the second m.ortgagee. There Lord Hatherley, after explaining in detail (a) how the legal estate acquired by a subsequent incum- brancer is made available as a tabula in naufragio, concludes by saying, " All that is a very peculiar part " of this doctrine, but the Court has never gone " beyond this ; and if it does not find the legal estate " interposed, it deals with the money according to " the priorities." Finally, the doctrine was made by Lord Westbury the foundation of his decision in Phillips v. Phillips (b), in which he held that a purchaser for valuable consi- deration (marriage in the particular instance) without notice of a previously granted annuity, could not, the whole legal estate being outstanding in previous in- cumbrancers, and the interest of the annuitant and the purchaser being alike equitable, rely effectually on the defence of purchase for value without notice against a bill by the annuitant to enforce payment of his annuity. This portion of the decision was, equally with that which relates to Williams v. Lambe and Collins v. Archer (c), dissented from by Lord St. Leonards on the ground that the question in Phillips v. Phillips was not one of settling priorities, but of affording relief in a contest between adverse equitable claimants (d). (a) 2 Kay & Johnson, 108, 109. (6) 4 De Gex, Fislier & Jones, 208. (c) See pp. 414, 415, ante. (d) See Vendors & Purchasers, 14th Ed. 797. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 43(3 In reference to a diiference of view between such great authorities, perhaps we ought to say " non " nostmm Ac.;'' but to the writer it seems that the suit was virtually one to adjust the rights over the property in question of persons claiming in equity only, and that the doctrine " qui prior est tempore, dc," was correctly applied. This much seems clear, that if the prior legal in- cumbrancers had filed a foreclosure bill, a right of redemption must have been given to the annuitant in piiority to that given to the subsequent purchaser. Secondly. — Lord Westbury's observation in refer- ence to this second class (a), where he says that the principle is, that a Court of Equity " tvill not disarm a "purchaser," falls considerably short of a full state- ment of what equity does for a purchaser ; for in cases under the second class, equity not only does not dis- arm him, but actually gives him priority and prece- dence by reason of the legal estate which he has acquired. The Court does not, as in cases arising under the first class, simply say to the plaintiff, " we dismiss your " bill, we will give you no assistance against the pur- " chaser for value without notice," but it marshals the rights and administers the property which is the subject of litigation on the footing of the purchaser or mortgagee who has acquired the legal interest having actually the first claim. (a) PhUlips V, Phillips, 4 De Grex, Fisher & Jones, 208, see pp. 217, 218, Digitized by Microsoft® ^ * 434 PUKCHASE FOE VALUABLE This difference, of course, is attributable to the different natures of the suits. In cases arising under the first class, the plaintiff says : "I want assistance." The Court says : " We " cannot give it as against a purchaser for value with- " out notice; you must make what you can of your " legal right without our assistance." In the second class of cases, there are various equities attaching to the property under litigation, and the Court could not stay its hand altogether without leaving everything in hopeless confusion, and doing absolute injustice. This distinction between the two classes of cases is well illustrated by the case of Finch v. Shaw (a), decided by Lord Eomilly ; and on appeal in the House of Lords (b). The facts material for our purpose are very short. A first legal mortgagee filed a bill against a second mortgagee for foreclosure. Amongst other defences the second mortgagee set up that of his being a pui'- chaser for value ■\nthout notice. The argument in support of the defence was some- what singular. It had been settled, as we have seen in our discussion (c) of Williams v. Lamhe and Collins V. Archer, that the defence is a good defence, although a plaintiff may come into equity relying on a legal title ; and the contention now was that in all cases {a) 19 Beavan, 500. (J) Colyer v. Fincli, 5 House of Lords Cases, 905. (c) See pp. 403—408, ante. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 435 where the plaintiff came into equity relying on a legal title the defence was a valid defence, and the plaintiif could have no relief in equity ; or in effect that the simple circumstance of the title of the plaintiff being legal, was sufficient to prevent the Court from giving hiin any relief against a purchaser for value without notice. It was m'ged that by the decisions, and more par- ticulai-ly that of Lord Eomilly himself in Attorney- General V. Wilkins{a), the mortgagee, his title being a legal title, must be left to his remedies at law. Lord EomUly, in his judgment, after reiterating his view that the defence of purchase for value without notice, applied as against a legal right as well as an equitable right, proceeded to discuss the applicabihtj^ of the defence to cases of mortgage, and continued thus (b) :— " Li this case, suppose the legal estate was out- " standing, and that the question was between two " equitable incumbrancers, both of whom had ad- " vanced their money without any notice of any " incumbrance on the estate, and therefore exactly " under the same conditions; if the conduct of the " parties were the same, I should give priority to the " one who advanced his money prior in point of time. " Then could the rights and situation of the first " mortgagee be in the least diminished or injured if " he had, in addition, obtained the legal estate, or is " the doctrine of a pm-chaser for valuable consideration (a) 17 Beavan, 285. (6) 19 Bearan, 508. F ]? 2 Digitized by Microsoft® 436 PUECHASE I'OB VALUABLE "without notice applicable to that state of things? " In my opinion it is not." Then, after referring to Williams y. Lamhe and Collins V. Archer, in terms which impliedly treat them as well decided, Lord Eomilly continues thus : — " The distinction, I apprehend, is this : if the suit " be for the enforcement of a legal claim or the " establishment of a legal right, then, although this " Court may have jurisdiction in the matter, it will " not interfere against a pm'chaser for valuable con- " sideration without notice, but leave the parties to " law ; if, on the other hand, the legal title is perfectly " clear, and attached to that legal title there is an " equitable remedy or an equitable right which can " only be enforced in this Court, I have not found any " case, nor am I aware of any, where this Court will " refuse to enforce the equitable remedy which is ■' incident to the legal right (a) ." Further on Lord Romilly points out that although at that moment the plaintiff (Colyer) was unable to bring ejectment by reason of the existence of a prior term securing an annuity, that term might cease at any time, and then upon the plaintiff recovering the (a) This pOrSsage seems to have been intended to suggest a ground on whicli the decisions in Williams v. Lambe and Collins v. Archer might be supported, and at the same time might in their turn serre to strengthen the decision subsequently arrived at in the principal case. If so, Lord Romilly here regards the right of foreclosure as an equitable right attached to the legal estate in the mortgagee. It is submitted that it would be more correct to view it as a right, correlative to that of redemption, imported, equally "with the latter, into the mortgage contract by Courts of Equity, and to consider the legal estate as an adjunct to the equitably right, Digitized by Microsoft® CONSIDEEATION WITHOUT NOTICE. 437 estate, a bill might be filed against him for redemption, and says: "If I am not to interfere to grant fore- " closure to Mr. Finch, am I to interfere to grant re- " demption to Mr. Colyer ? * * * * " It appears to me impossible for any Court to come " to such a conclusion." Accordingly Lord Eomilly made the usual decree for foreclosure (a). On appeal to the House of Lords (&), the decision at the Rolls was upheld. Lord Cranworth (Lord Chancellor), in moving the judgment of the House, after stating his agreement in the doctrine " that " the principle on which the Court protects a pur- " chaser for valuable consideration without notice, is " not confined to the case of a purchaser for valuable " consideration who has got the legal estate," said : " But I think that that doctrine cannot by possibility " apply to the case of a Bill of foreclosure, and there " are reasons for so holding pointed out by the " Master of the Bolls in his judgment, reasons which " are no doubt perfectly satisfactory, but I should " proceed on a much shorter ground. For the " pm-pose of the question whether the Court would " interfere against a purchaser for valuable considera- " tion without notice, a foreclosure is not relief at " all. The mortgagee who seeks foreclosure stands " in such a position to the mortgagor, or the purchaser " from the mortgagor for valuable consideration with- (a) See Heath v. Crealock, L. R. 10 Ch. 22, which decision must be considered as founded on the same principle as Finch v. Shaw. (6) Colyer v. Finch, 5 House of Lords Cases, 905 ; see p. 921. Digitized by Microsoft® 438 PURCHASE FOE VALUABLE CONSEDEBATION. " out notice, that that purchaser can at any time file a " bill to redeem the mortgage; and, that being so, it " v,'ould be most unjust if there was not a correlative " right on the part of the mortgagee to say, ' you shall " redeem noiv, or you shall never redeem.' " Lord Cranworth does not advert to the circum- stance, that after the conclusion is reached that the defence cannot be set up as a complete bar to a fore- closure suit, the question whether a purchaser for value has or has not a legal estate, becomes all im- portant ; but this is accounted for by the fact that, in the particular case before him, the legal estate was in the plaintiff. The substance of the decision is, it is conceived, this,: that by the effect of the mortgage certain equit- able rights and liabilities were created which a Com't of Equity could not, without injustice, refuse to recognise and adjust ; and that the fact of the plaintiff having the legal estate could afford no just ground for refusing to adjust the equitable rights. Digitized by Microsoft® CHAPTER III. We now come to Lord Westbury's third class of cases, which he describes as those in which there are circumstances that give rise to an equity as distin- guished from an equitable estate, as, for example, an equity to set aside a deed for fraud or mistake. In these cases the rule of the Court of Equity is, it is conceived, this : that it will not exercise its special jm-isdiction to remedy fraud or mistake to the prejudice of a purchaser for value. In this third class of cases the defence a23plies equally, whether the purchaser has only an equitable or a legal estate. It is not meant by this that his position is as strong in the former case as in the latter, because the absence of a legal estate may cripple his power of defending himself at law ; what is meant is, that the possession by him of a legal interest is not needed, as in the second class, to make the defence available. We may take, as an instance of the third class, Bowen v. Evans («), decided by Lord St. Leonards, when Lord Chancellor of Ireland. ia) 1 Jcges k Latouche, 178 ; see pp. 263, 264. Digitized by Microsoft® 440 PURCHASE FOE VALUABLE The facts there were very complicated, but the case may be represented generally as being one of a bill filed by a remainderman in tail to set aside a sale of the settled estate by the tenant for life as having been effected by fraud. Amongst the defendants to the suit were certain persons claiming, as purchasers for value without notice, equitable interests only. In reference to these defendants, Lord St. Leonards thus expressed himself : — " It appears that Mr. G. E. Bruce " (the original purchaser) " granted, by way of settlement for valuable " consideration, a rent-charge secured by a term to be " issuing out of this property before he obtained a " conveyance of the legal estate; and it was insisted " that the purchaser, having no notice of the fraud, " had an estate which ought not to be impeached in " this Court. It was not denied that, he being a " purchaser for value without notice, though of an " equitable interest only, the bill must be dismissed " as against him, with costs ; and though there is a " difference of opinion on the point whether a pur- " chaser of an equity without notice can protect him- " self in this Court as a defendant against the legal " title (a), yet, in my opinion, whether the purchaser " has the legal estate, or only an equitable interest, he " may, by way of defence, avail himself of the charac- " ter of a purchaser without notice, and is entitled to " have the bill dismissed against him, though the next " hour he may be turned out of possession by the legal " title." (a) This refers to the question discussed at pp. 404—408, ante, Digitized by Microsoft® COXSIDEEATION WITHOUT NOTICE. 441 Amongst older cases establishing the same doctrine, though without any special reference therein to the question whether the purchaser's estate was legal or equitable, we may cite Maiden v. Menill {a), in which it was held by Lord Hardwicke that where a bond fide purchaser for value without notice is concerned, equity will not interfere to grant relief in favour of a party, though he has acted in ignorance of his title upon a mistake of law. So, again, in Bell v. Cundall (b), which was a bill to rectify a mistake in the body of a common recovery of a copj'hold estate, the name of the vouchee having been inserted instead of the name of the tenant, and so vice versa; and in which the fact of mistake was apparent from a memorandum in the margin of the record in the handwriting of the steward of the manor, in which the names of the parties were correctly given ; there, upon its appearing that the remainderman had, upon the foot of the mistake in the recovery, got pos- session of the estate, and sold it for valuable consi- deration. Lord Hardwicke declined to give any relief. To this same class of cases must also, as it is con- sidered, be referred that of Penny v. Watts (c), as decided in the Court of first instance. The object of the bill in that case was to establish and obtain performance of an agreement by which, in consideration of a niece giving up a legacy of £2,000, to which she was entitled under her uncle's will, the uncle's widow engaged to convey certain lands to her. (a) 2 Atkyns, 8. (b) Ambler, 102. (c) 2 De 6ex & Smale, 501. Digitized by Microsoft® 442 PURCHASE FOR VALUABLE To this bill the defence of purchase for valuable consideration without notice was set up by the widow's second husband, claiming under an ante-nuptial settle- ment made on the occasion of the second marriage. The legal estate in the land, or some portion of the land, to which the litigation related, was outstanding in a mortgagee, and it was contended that in conse- quence the defence was not available ; but Vice- Chancellor Knight Bruce held that the defence was available, notwithstanding the legal estate might not have been acquired under the settlement. The case was appealed, and on appeal {a), Lord Cottenham thought there was sufficient evidence of constructive notice of the agreement to warrant the direction by him that certain issues should be tried. Ultimately the case was compromised; but the deci- sion of Vice-Chancellor Knight Bruce on the point of law remains. The reported cases falling within the third class are not numerous, and the distinction between the cases where the plaintiff comes to enforce an equity and those where he comes founding himself on an equitable estate may occasionally be somewhat thin. Take as an example a suit for specific performance. A., let us suppose, sells land to B., and then sells the same land to C. without notice, and then B. takes proceedings against A. and C. to enforce his contract, whereupon C. pleads that he is purchaser for value without notice. (a) 1 Macn. & Gor. 150. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 443 Now, according to one familiar mode of stating the relation between A. and B., A. became, after the sale to B., a trustee for B., and it may be said that B. comes to the Court founding himself upon his equitable estate. The other view would be, that he comes relying on an equity rather than an equitable estate. The distinction is immaterial, assuming C. to have taken his conveyance, and obtained thereby the legal estate without notice, because, then, even adopt- ing the first view, the case is simply that of a pur- chaser who, simultaneously with the payment of his pm'chase-money, has obtained from a trustee a con- veyance made by the latter in breach of trust on his part, but with perfect innocence on the part of the purchaser {a). Suppose, however, that C. has paid his purchase- money and obtained a conveyance which does not carry with it the legal estate. Will the defence pro- tect C. who has an equitable title only ? It is conceived that it ought, more especially as the jurisdiction in specific performance is one which the Court of Chancery has often declined to exercise in cases where a decree would entail hardship. (a) See p, 434, wte. Digitized by Microsoft® CHAPTER IV. Having now examined the three classes of cases mentioned by Lord Westbury to which the defence appHes, we will endeavour to extract from them some rule or principle. The first observation that occurs is, that Classes I. and III., though differing in certain respects, are more akin to one another than is either to Class II. In Class I. the Court of Equitj^ was asked to give to the owner of a legal interest some equitable remedy or assistance not obtainable at law, and the answer was : — " Against a purchaser for value without notice " we will give no assistance." In Class III. the Court was asked to exercise some exceptional head of equity jurisdiction founded on fraud, accident, or mistake, and the Court declined to exercise it. In both classes of cases the mode in which the Court gave effect to the defence was by simply declining to exercise any jurisdiction whatever — in other words, by dismissing the bill. In Class II., on the other hand, the Court did not declLue to exercise jurisdiction, but, while exercising it, contrived to give the purchaser for value the benefit of any legal advantage he had acquired. Digitized by Microsoft® PURCHASE FOR VALUABLE CONSIDERATION. 445 We have already indicated (a) what we conceive to be the true ground for the different course of action adopted by the Court in these different cases. Where, for instance, property is mortgaged to (say) A., B., C, and D., in succession, and one or more of the later mortgagees fills the character of a purchaser for value without notice, the Court cannot say : " We " will do nothing ; settle your disputes at law," for this would be equivalent to holding that the various rights and equities in respect to foreclosure and re- demption should be disregarded altogether. The first legal mortgagee would recover possession and hold the property absolutely. In other words, the case is one in which the Court must, in order to avoid chaos, exercise its jurisdiction, and the only question is, on what terms as respects the purchaser for value it shall be exercised. The different mode of action adopted by the Court in reference to these classes of cases suggests that the true primary division of our subject lies between the cases in which the Court declines altogether to exer- cise jurisdiction and those in which it does not so decline. If we can define the latter, the next step will be to distinguish between the cases in which the Court, though exercising jurisdiction, accords some advan- tage to the purchaser for value without notice and those in which it does nothing for him. Now, it is submitted that the question, whether the [a) See p. 434, Digitized by Microsoft® 446 PURCHASE FOE VALUABLE Court is to exercise or to decline jurisdiction depends, not upon whether the plaintiif comes claiming under a legal or an equitable title, nor, indeed, upon the nature of the title set up by the purchaser for value, but on the nature of the suit. If the suit is, as in those falling under Classes I. and III., of such a description that the matter can be conveniently disposed of by simply declining all action whatever, that course will be adopted, but if, on the other hand, the suit be one for the determination and adjustment of equitable rights and estates in reference to property, and the effect of the Court doing nothing would be to leave these rights and estates undetennined and unadjusted, the Court will not decline jurisdiction. Thus in the cases, adverted to in the outset (a), in which there is a fund to be administered, in the cases falling under Class II. already discussed, and in many others, the Court cannot properly decline jurisdiction. We have next to distinguish the cases in which the assumption of jurisdiction by the Court results in ren- dering the defence of purchase for value without notice wholly unavailing, and those in which, although juris- diction is assumed, it is exercised in such a way as to give the pm-chaser the benefit of the defence. Under the former head will fall all those cases in which the Court is distributing or administering a fund, and those also in which the whole legal estate being outstanding, and the estates and interests to be (a) See p. 390, ante. Digitized by Microsoft® COXSIDEEATION WITHOUT NOTICE. 447 determined and adjusted being all purely equitable, the maxim " qui prior est tempore, potior est jure " governs the right (a). Under the latter will fall those cases already con- sidered under Class II., in which the purchaser for value has obtained the protection of a legal estate ; and the same principle must, it is conceived, be ap- plied to other suits enforcing equitable rights. To illustrate our view of the action of the Court and of the applicability of the defence in a case not fall- ing within either the first or the third class, let us sup- pose that the head of jurisdiction which the Court of Equity was requested to exercise was that of ' ' Partition." In such a case, the Court could not properly decline jurisdiction without leaving the rights of the various tenants in common undetermined and unadjusted, and saying in effect that they should remain tenants in com- mon, although the law had made provision for their release from that undesirable condition. The Com't must, therefore, it is conceived, have assumed juris- diction, notwithstanding that the defence of purchase for value without notice might be set up by a defendant. Next let us consider the effect and result of the Court assuming jm-isdiction. We will suppose for this pm^pose that the bill was by a person claiming three-fourths of the property, and, first, let it be assumed that the whole legal estate was outstanding in some trustee or paramount mort- gagee. In such a case it would have been of no avail (a) See pp. 430—433, ante. Digitized by Microsoft® 448 PUECHASE FOE VALUABLE for one of the defendants to say, " I am purchaser " for value without notice of the whole property, " and, therefore, you are entitled to no decree." Nor would it have been of any use to say, " I purchased " one moiety for value without notice, and you, the " plaintiff, can have a decree for partition only on the " footing of your being entitled to one-half instead " of three-fourths." The answer would be : — "The " interests are all equitable, and you, the purchaser " for value, have, after all, no higher right than the " plaintiff." If, however, the purchaser for value should have had vested in himself, or in some person expressly a trustee for himself, a legal title co-extensive with the equitable share or interest purchased by him, and larger than was compatible with the right or title as- serted by the plaintiff, then, to that extent, his right must have prevailed, for the Court would not deprive him of any legal estate. Of course, if the purchaser for value without notice had purchased and obtained the legal estate in the entirety, the result would be simple dismissal of the bill for partition, though not on the ground of the Couii refusing to assume jurisdiction against the pur- chase!;, but because, after assuming it, that form of decree would alone meet the exigency of the case. If the purchaser for value without notice had pur- chased and obtained the legal estate in a moiety, then the plaintiff could have a decree for partition only on the footing of his being entitled to one-half of the property instead of thi'ee-fourths as claimed by him, Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 449 To sum up : the defence was an absolute bar where a Court of Equity was asked to afford assistance to the legal title by the exercise of some special kind of jurisdiction, such as discovery, removal of terms, &c., or where it was asked to exercise some special head of jmisdiction, such as those founded on fraud, accident, or mistake, but it was no such bar where the Court was merely asked to adjust the equitable rights of the plaintiff and others in the exercise of some head of ordinary jurisdiction, the exercise of which it could not have declined without leaving those rights unsettled and in confusion ; but in the latter case, while as- suming and exercising jurisdiction, it gave to any purchaser for value who might have acquired a legal estate, the fuU benefit of that legal estate, as an adjunct to his equitable right. The foregoing is the nearest approach we have been able to make to the enunciation of any general rule or principle governing the defence. It may be convenient before considering the appli- cability of the defence to litigation arising since the passing of the Judicature Acts, 1873 and 1875, to say a few words as to the meaning of the expressions, " valuable consideration" and "without notice; " but we shall be brief under these heads, because the primary object of this sketch is rather to show the circum- stances under which the defence applies, assuming the defendant who is setting it up to be a purchaser for valuable consideration without notice, than to explain what constitutes such a purchaser. As respects the meaning of the expression, "va,lM- Digitized by Microsoft® 450 PURCHASE FOR VALUABLE " able consideration," the rule is the same as that which obtains in respect to cases arising under the 27 Elizabeth, cap. 4. Of course, money or money's worth is a valuable consideration, and so is marriage (a) ; so also any liability undertaken by the person acquiring the pro- perty. And just as it has been held under the statute of Elizabeth, that if there be in fact a valuable considera- tion, the Court will not inquire into the quantum or amount (6) ; so it has been held with respect to this defence. This was, in truth, one of the points decided in Bassett v. Nosworthy, in which Lord Nottingham, after alluding to the argument raised before him that the lands had been ]Droved to have been of much greater value than the purchase-money paid, ex- pressed himself thus (c) : — " That will not alter the case, because in purchases " the question is not whether the consideration be " adequate, but whether 'tis valuable; for if it be such " a consideration as will make a defendant a pur- " chaser within the 21st Ehzabeth (d), and bring him " within the protection of that law, he ought not to " be impeached in equity." On the other hand, it is perfectly clear that the (a) Harding'!;. Hardrett, Eep. temp.Tmchd; Jackson ■!). Eowe, 2 Simons & Stuart, 472 ; Penny u. Watts, 2 De Gex & Smale, 601. (5) See as to this the recent cases of Townend ■». Toker, L. R. 1 Ch. 446 ; Bayspoole v. Collins, L. B. 6 Ch. 228. (c) Reports temp. Finch 104. (d) Obviously a printer's error for 27th. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 461 consideration must be valuable in the technical sense of the word, and that a merelj' good consideration, as natural loVe and affection, would not sustain the defence. Next, as to the words, "without notice." The question, what is "notice?" is a very large one. It embraces questions arising upon the Countj' Eegistry Acts, upon the Statute Law applicable to British ships, upon the complicated legislation affect- ing, judgments and pending suits, and upon a variety of other matters not cognate to the immediate object of this sketch. It branches out into the question of actual notice to the purchaser himself, which may be regarded as the exception, and notice to his solicitor ■or agent, which is far more common — which last, if acquired by the solicitor or agent in the same trans- action, is equivalent to notice to the principal. It passes thence to the difficult question, how far, and to what extent, knowledge of the solicitor acquired before his retainer by the client is to be imputed to the client so as to affect him with constructive no- tice 9 (a). It involves the question, how far knowledge or notice of facts which suggest the propriety of in- quiry is, by putting the purchaser upon inquiry, to be deemed notice of what the purchaser, who fails to inquire, would have learnt if he had inquired? It involves the question of the absolute duty of the pur- chaser to make inquiry for the title deeds, and the consideration of what answer accounting for their (•«) Fuller V. Bennet, 2 Hare, 394. G G 2 Digitized by Microsoft® 452 PUECHASE FOE, VALUABLE COXSIDEEATION. non-production may be accepted as reasonably satis- factory. To do justice to these various topics would require time and space at least equal to that ah-eady allotted to the immediate object of our sketch, and it is not proposed to discuss them here. Digitized by Microsoft® CHAPTEK V. It remains that we should say a few words in reference to the applicability of the defence to liti- gation arising in the Supreme Court, and for that purpose we will state somewhat more fully the enactments of the Judicature Act, 1873, to which we adverted at the commencement of our sketch. The 24th section of the Judicature Act, 1873, enacts hy sub-section (2) that if any defendant * * * * alleges any ground of equitable defence to any claim of the plaintiff * * * * the Courts and every judge thereof shall give to * * * * every equitable defence so alleged the same effect by way of defence against the claim of the plaintiff as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that Court /or the same or the like purpose before the passing of the Act. The 25th section of the Act enacts by sub-section (11) as follows : — "Generally in all matters not herein- " before particularly mentioned, in which there is any " conflict or variance between the Eules of Equity and " the Eules of the Common Law with reference to the " same matter, the Eules of Equity shall prevail." Digitized by Microsoft® 454 PURCHASE FOE VALUABLE Now, in reference to the enactment of section 24, sub-section (2), it should be premised that, according to the more natural construction of the words used (though they may be capable of a larger one), the rule embodied in that sub-section confers a right of equit- able defence only in cases in which the action brought in the Supreme Court is for some puiposCjihe same as or like to one for which before the Act a suit might have been instituted in the Court of Chancery; and it is conceived that it would not be legitimate in construing the rule first to assume the possibility of a suit in Chan- cery for the particularpurpose, and then to consider what equitable defence might have been set up in that suit. For instance, a damage cause in respect of collision at sea, seeking to enforce a maritime lien on the ship causing collision, could not before the Act have been instituted in the Court of Chancery, but only in the Admiralty Court, or in a County Court having Ad- miralty jui'isdiction ; hence to such a suit in the Supreme Court the defence of purchase for value without notice could not, according to our construc- tion of the sub-section, be validly set up. If this were otherwise, a most important alteration would have been introduced into maritime law, it being clearly established by that law (however widely such a result may differ from equity principles) that a purchaser of a ship for valuable consideration and without notice of the maritime lien, takes it subject to that lien (a) ; and it seems a more reasonable expo- (a) The Bold Baccleuch, 7 Moore, P. C. C. 267 ; The Kuropa, 32 L. J. (N. S.)P. M. &A. 188. Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 455 sition of the rule to regard it as intended to preserve as nearly as may be the benefit of the defence, and not as introducing indirectly large and important alterations in the law. Starting, then, from the general principle that the defence applies only where a suit for the same or the like purpose might have been brought in the Court of Chancery, let us consider some of the various kinds of actions that may occur. As respects actions brought in the High Court of Justice with a view to obtain relief of the description embraced by either the second or the third classes of cases which we have discussed, there would seem to be no difficulty in applying the enactment of the Judicature Act. Such actions will, in point of fact, be almost invariably brought in the Chancery Division of the High Court; but even if such an action be brought in a Common Law Division, and retained there (by reason of the power of transfer not being exer- cised), still the construction of section 24, sub- section (2), of the Judicature Act seems free from doubt. The question is. Could such an action as that which has in fact been brought have been, before the passing of the Act, brought m the Court of Chancery for the same or the like purpose ? and upon this question being answered in the affirmative, the same effect must be given to the defence as the Court of Chancery would have given to it. On the other hand, to the large number of actions relating to matters in respect to which no suit could Digitized by Microsoft® 456 PURCHASE FOR VALUABLE have been brought in Chancery before the Act, the defence will, it is conceived, not apply. Thus, for instance, chattels belonging to A. are stolen, and are purchased by B. for valuable con- sideration without notice, but not in market overt, and A. brings an action against B. to recover his property. In such a case the defence has, it is con- ceived, no application — or, at all events, no applica- tion as a defence t.o the whole action — unless, perhaps, the chattels were of such a description that no damages could compensate A. for their loss, in which last case a bill in Chancery to have them delivered up might have been sustained (a). A doubt suggests itself, however, whether the de- fence, though not a defence to the whole action, may not be held valid to the extent of conferring upon a defendant who, in such an action, is called upon to answer interrogatories a right to say, " I am " a purchaser for value without notice, and I decline " to answer." It is clear that, if we go back to the time when litigants in the Common Law Courts were dependent on the Court of Chancery for discovery, the defence would have been an answer to a bill for discovery in aid of an ordinary Common Law action. Thus in Hoare v. Parker (J), which was a bill for discovery against a pawnbroker in aid of proceedings at law to recover plate which had been pledged by a (a) Seo Pasey v. Pusey, 1 Vemon, 273 ; Duke of Somerset v. Cookson, 3 Peere Williams, 890. (ft) 1 Brown's Chancery Cases, 578. Digitized by Microsoft® CONSIDERATION \yiTHOUT NOTICE, 457 person who had only a life interest therein, and had since died, the defendant pleaded purchase for valu- able consideration without notice. The plea was overruled as being insufficient in form ; but Lord Thurlow considered the defence, if sufficiently pleaded, a good defence, saying : "A purchaser without notice, " and for a valuable consideration, is not bound " in conscience to assist the right owner in the " legal recovery of the subject purchased under such " circumstances." It is also clear that in the exercise of the special powers of compelling discovery conferred upon the Common Law Courts by the Common Law Procedure Act of 1854, the right to discovery, even when the whole of the proceedings were at Common Law, might be excluded by the defence of purchase for value with- out notice. This is illustrated by the case of Oomvi V. Parrott (a), which we have already discussed {b) in connection with Willia7ns v. Lamhe. The Common Law Procedure Act of 1854, however, in terms made the right to discovery at Common Law CO -extensive only with that in Equity; and the question is whether, under the Judicature Act, 1873, which contains no such express Umitation of right, the result is or not the same. If the preservation of the " status quo ante " is to be regarded as the key to the construction of section 24, sub-section (2), the answer to this question must, it is conceived, be in the affirmative. (a) 3 Cpromon Benoh Reports, N. S. 47. (V) Page 411, ante. Digitized by Microsoft® 458 PURCHASE rOE VALUABLE The words of that sub-section may, without unduly straining them, be made applicable by regarding the action brought as consisting of two distinct claims (that is to say) — a claim to the chattels, and a claim to have discovery respecting them. For the first of these purposes, a suit could not have been brought in the Court of Chancery before the j)assing of the Act, but for the latter it might, and to the extent of the latter purpose the defence therefore may be held to apply. From the class of actions last considered, represent- ing what before the Judicature Acts would have been ordinary Common Law actions, we must, it is con- ceived, carefully distinguish actions which, although wearing the general aspect of Common Law actions, are in eifect brought to obtain by means of the im- proved procedure of the Supreme Court, what before the Judicature Acts could have been obtained only by means of the Court of Chancery. To such actions the defence, it is conceived, clearly applies. Thus, suppose the facts which gave rise to Wallivyn V. Lee to be repeated. Suppose an action to be brought in one of the Common Law Divisions of the High Court of Justice to recover from the innocent mortgagee of a fraudu- lent tenant for life the title deeds which the latter, representing himself to be owner in fee, had handed over simultaneously with the mortgage. Here, it is conceived, the sub-section applies strictly and literally. A suit might have been brought in the Digitized by Microsoft® CONSIDERATION WITHOUT NOTICE. 459 Court of Chancery for the purpose for which the action is brought, and the defence of purchase for value with- out notice is a defence not merely against giving dis- covery, but a defence to the whole action, except so far, indeed, as such action may embrace a claim for damages in default of recovery of the deeds themselves, to which last-mentioned claim the defence would be no answer. The foregoing are the best conclusions which the writer has been able to arrive at in reference to the mode of determining whether the defence applies in any particular instance, and to the applicability of the defence in the particular instances discussed. It must be admitted that these conclusions are not altogether satisfactory in result, and that the ascer- tainment of the applicability of the defence by means of inquiries into the nature and extent of the old Chancery jui'isdiction must occasionally lead to in- vestigations involving technicality rather than sub- stance. Thus although actions by widows for dower or by tithe owners for an account of tithes are hardly likely to occur now, so as to afford an opportunity of citing Williams v. Lambe or Collins v. Archer as cases directly in point, still the proposition treated by Lord Westbury as established by those cases, viz. : '"' that the defence " of purchase for valuable consideration did not apply " where the Court of Chancery exercised a legal "jurisdiction concurrently with Courts of Law," may at any future time give rise to the following four-fold technical investigation (that is to say) : Digitized by Microsoft® 460 PURCHASE i-OR VALUABLE CONSIDERATION. (a) Could such an action as this have been brought in the Court of Chancery before the Judicature Acts ? (b) If so, would the jurisdiction of the Court of Chancery have been concurrent only with that of the Courts of I^aw ? (c) If so, is Lord Westbury's view as to the effect of the decisions of Williams v. Lambe and Collins V. Archer the correct view ? or are those decisions to be treated as simply wrong ? (d) If the foiiner, is the defence wholly or only partially inapplicable ? (a) But whatever may be the doubts or difficulties attending the solution of any particular instances that may occur, this seems clear, viz. : that for the present, at least, a thorough knowledge and under- standing of the doctrine of purchase for value without notice, as it existed before the Judicature Acts, is a necessary preliminary to estimating its applicability to litigation arising under the Acts, and it is on this account that we have, in the earlier portion of this sketch, dwelt somewhat more fully than might at first appear necessary on the reported decisions by which the nature and extent of the defence was gradually ascertained and determined. {a) See pp. 410, 411, 415, 416, ante. Digitized by Microsoft® APPENDICES. APPENDIX A.— {See p. 17.) Maegaeet Appilgaeth, widow, v. Thomas Seegeantson. Mill complaining tlmt the Defendant having obtained a sum of money of Plaintiff tender a promise of marriage, lias married another looman and refuses to return it. To the right reverent Fadre in God the Bisshop of Bathe, Chaunceller of England. Besecheth mekely Margaret Appilgarth of York wydewe, that where Thomas Sergeantson of the same, at diverse tjmes 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 certain golde to the some of xxxvj. li for costes to bee made of their mariage,